Article 1025
Where the perpetrator carries out news reporting, public opinion oversight, or other conduct for the public interest, impacting the reputation of others, civil liability is not borne, except in any of the following circumstances:
(1) Fabricating or distorting facts;
(2) Failing to fulfill the obligation to reasonably verify seriously untrue content provided by others;
(3) Using insulting language or other derogatory language to defame others.
I. Purpose of this Article
This article is a provision on the relationship between news reporting, public opinion supervision, and the protection of the right to reputation.
II. Evolution of the Provisions
News reporting and public opinion supervision are important means and methods to ensure the right of media supervision, citizens' right to know, and social fairness and justice. The Constitution clearly stipulates that citizens have freedom of speech and of the press, as well as the right to criticize and supervise State organs and their functionaries. However, news reporting and public opinion supervision also have behavioral boundaries, and transcending the boundaries still faces the problem of infringing on the right to reputation. The original Tort Liability Law did not make separate provisions on the boundaries of news reporting, public opinion supervision, and the relationship with the protection of the right to reputation. Articles 2, 3, 6 and 7 of the 1998 Interpretation of the Supreme People's Court on Several Issues Concerning the Trial of Cases Concerning the Right to Reputation (no longer valid, hereinafter referred to as the 1998 Interpretation on the Right to Reputation) impose a negative impact on the internal publications of relevant organs, The contents contained in the internal materials involve the question of whether disputes over the right to reputation are accepted, whether disputes over the right of reputation caused by the reprinting of works by news media and publishing organizations are admissible, whether disputes over the right of reputation caused by the public documents and acts of authority of news units reporting on state organs are found to constitute infringement, and how to determine whether disputes over the right to reputation arising from the provision of news materials constitute infringement. Among them, the issue of whether disputes over the right to reputation arising from the public documents and acts of authority of state organs reported by news units constitute infringement, 1998 Interpretation of the Right to Reputation Article 6 stipulates that if a news unit reports on the basis of public documents and public acts of authority produced by state organs in accordance with its authority, and its reporting is objective and accurate, it shall not be deemed to have infringed upon the right to reputation of others; This article clarifies the boundaries of the responsibilities of news organizations when reporting on news.
Article 805 of the Civil Code (Draft) stipulates that if an actor carries out acts such as news reporting or public opinion supervision in order to maintain public order and good customs, and affects the reputation of others, he shall not bear civil liability. However, this excludes where the perpetrator fabricates facts, distorts facts, fails to perform the obligation of reasonable review of facts provided by others, or contains content that is excessively derogatory to the reputation of others. Article 805 of the Personality Rights of the Civil Code (Second Reading Draft) stipulates that a person who carries out acts such as news reporting and public opinion supervision that affect the reputation of others shall not bear civil liability, except in any of the following circumstances: (1) the perpetrator fabricates or distorts the facts, (2) fails to fulfill the obligation of reasonable review of the untrue content provided by others, and (3) the relevant content excessively derogates the reputation of others. The biggest difference between the previous deliberation drafts and the promulgated drafts is that news reporting, public opinion supervision, and other acts are carried out for the public interest, affecting the reputation of others, and do not bear civil liability. In this regard, Article 805 of the Civil Code (Draft) stipulates that "the actor carries out acts such as news reporting and public opinion supervision in order to maintain public order and good customs". The phrase "public order and good customs" in the Second and Third Deliberation Drafts has also been deleted. In the promulgation draft, "public order and good customs" was replaced by "public interest". Public order and good customs generally refer to public order and good customs. Public order generally refers to the basic order and fundamental concepts in the political, economic, cultural and other fields, and is the basic principle, value and order related to the overall interests of the state and society. Good customs refer to customs based on the mainstream moral concepts of society, which can also be called social public morality, which is the customs of the mainstream moral concepts of society, and can also be called social public morality, which is a moral code generally recognized and followed by members of society. The change from "to maintain public order and good customs" to "for the public interest" is mainly to consider that news reporting and public opinion supervision are to protect the right of media supervision, citizens' right to know, and to safeguard social fairness and justice, and are more related to social interests and public interests, rather than to maintain public order or good customs.
3. Interpretation of Provisions
This article is about the exemption and exclusion clauses for news reporting, public opinion supervision, etc., which affect the reputation of others.
Legitimate news reporting and public opinion supervision and other acts have social legitimacy, are lawful acts, and are also legitimate acts to perform the duty of media news criticism. Even if legitimate journalistic acts such as news reporting and public opinion supervision by the media have consequences that affect the reputation of others, they do not constitute an infringement of the right to reputation, and the perpetrator does not bear civil liability. For example, criticizing the poor hygienic conditions of food enterprises and urging them to improve will have a certain impact on the reputation of the enterprise, but it does not constitute an infringement of the right to reputation, but a legitimate act of public opinion supervision.
News reporting and public opinion supervision and other journalistic acts constitute an infringement of the right to reputation if there are statutory circumstances. The circumstances provided for in paragraph 2 of this article are:
(1) The perpetrator fabricated or distorted the facts. This situation is an act of deliberately using news reports and public opinion supervision to infringe on the right to reputation of others. Fabricating facts is making things out of nothing, and distorting facts is distorting them without regard for the truth. These are deliberate and heinous in nature, constituting an infringement of the right to reputation.
(2) Failure to fulfill the obligation of reasonable verification of the seriously inaccurate content provided by others. In this case, the facts are seriously inaccurate, and the media has failed to fulfill its obligation to reasonably verify the facts, which has caused the facts to deviate from the truth, and is negligent. In addition, if the media fails to exercise the necessary duty of care in the news it produces, resulting in serious misrepresentation of the news facts, it also constitutes an infringement of the right to reputation.
(3) Using insulting words to demean the reputation of others. In news reporting, public opinion supervision
Although there are no of the above two circumstances, if there is an excessive derogatory damage to the reputation of another person such as the use of insulting language, which damages his or her personality, it also constitutes an act of infringing on the right to reputation.
The perpetrators of the above-mentioned acts of infringing on the right to reputation shall bear civil liability.
4. Cases
Xu v. XX Culture and Art Newspaper and Zhao in a dispute over infringement of the right to reputation
Facts: "XX Youth Daily" held the "XX Youth Golden Autumn Gala" and invited Xu to participate in the performance. The theatrical evening is for-profit, and the newspaper explains that it can give a certain remuneration to the actors. Xu said: It doesn't matter how much you give, you can do it. At that time, neither party had clearly agreed on the amount of remuneration for the performance. After Xu participated in the performance, the "Youth Daily" decided to pay Xu for the performance. Zhao, a reporter from Shanghai's "The Life of XX", wrote the article "Asking for Price" after hearing the speech about the asking price for Xu's performance in Shanghai, and submitted it to "XX Culture and Art Newspaper", expressing it as "This heroic model figure offers 3,000 yuan, and it is not good to lose 1 point". Xu sued the court. The court held that Zhao wrote an article to "XX Culture and Art Newspaper" without investigating and verifying the rumors without factual basis, and when the newspaper was compiling, it expected that the article would infringe on Xu's reputation after it was published, but it did not investigate and verify with the relevant units, and only deleted Xu's name in the title of the article, changed "request" to "ask for price", and changed Xu to "Laoshan Heroic Model" in the article, which caused a vast adverse impact on Xu after publication and infringed on Xu's right to reputation.
5. Analysis
This case is a typical case on the determination of infringement of the right of reputation in mainland China, and the provisions of Article 101 of the General Principles of the Civil Law on the right of reputation are the main adjudication norms for such cases. Articles 1024~1026 of the Civil Code inherit the content of the General Principles of the Civil Law on the right to reputation, and should become a new adjudication norm after the Civil Code takes effect. In this case, Zhao's act of writing part of Xu's behavior into an article and publishing it in "XX Culture and Art Newspaper" belongs to the scope of news reporting, and XX Culture and Art Newspaper has a reasonable obligation of review as a news media. As far as Zhao is concerned, his act of writing news content that is obviously inconsistent with the facts and publishing it constitutes a false news report, which is an act of infringing on the right to reputation; As a news media, it did not conduct necessary verification in the process of selecting and editing the manuscript, did not find that Zhao's article had the problem of false reporting, and took facts that were inconsistent with or completely deviated from the facts as the object of the news report, which led to the reduction of Xu's social evaluation, which was the news media's failure to fulfill its reasonable verification obligation and caused damage to the victim's reputation, constituting an infringement of the right to reputation.