Article 1028
Where civil entities have evidence showing that the content reported by newspapers, periodicals, networks, or other such media is untrue, infringing on their right to reputation, they have the right to request that the media promptly employ necessary measures such as corrections or deletions.
I. Purpose of this Article
This article is a provision on remedies for infringement of the right to reputation by inaccurate media reports.
II. Evolution of the Provisions
Prior to the promulgation of the Civil Code, there were no clear provisions in the current laws, regulations and departmental rules of the mainland as to whether the person entitled to reputation could directly request the newspapers, periodicals, the Internet and other media to correct or delete the content of the media if it found that the content of the newspapers, periodicals, online and other media was untrue. In trial practice, the people's courts hear disputes involving false media reports infringing on the right to reputation, mainly referring to the relevant provisions of the 1993 Answers on the Right to Reputation (no longer valid) and the 1998 Interpretation on the Right to Reputation (no longer valid). However, in view of the fact that the distinction between the right to claim for personality rights and the right to claim for tort liability in the era of major infringement is not clear, and the legislation is also presented in the form of the right to absorb the right of personality claim, in trial practice, the people's courts mainly focus on determining whether the actor constitutes infringement and how to bear the liability for infringement, and there is little discussion and discussion on whether the right holder can take remedial measures in a timely manner through the right to claim for personality rights. For the first time, the Personality Rights Section of the Civil Code clarifies the right to claim for personality rights of the subject of rights, and the separation of the right to claim for personality rights from the right to claim for infringement, which makes many new features and methods appear in the protection of personality rights. Specifically, in the process of deliberating and soliciting opinions on the personality rights section of the Civil Code, the relevant departments proposed that paragraph 2 of Article 27 of the Regulations on the Administration of Publication stipulates that "if the content of a work published in a newspaper or periodical is untrue or unfair, resulting in the infringement of the legitimate rights and interests of citizens, legal persons or other organizations, the parties concerned have the right to request the relevant publishing unit to make corrections or make a defense. and if it refuses to be published, the parties concerned may file a lawsuit with the people's court", in order to minimize the impact of infringement of the right to reputation, it is recommended to add a provision in the Civil Code that the owner of the right of reputation request the media to correct and delete false reports in a timely manner.
These recommendations were eventually adopted. Article 807 of the Civil Code on Personality Rights (Draft) provides that "where the content reported by newspapers, periodicals, online and other media is untrue and infringes upon the right to reputation of others, the victim has the right to request that the media promptly correct or delete it." Where the media does not perform in a timely manner, the victim has the right to request that the people's court order the media to make corrections or delete it within a set period of time. The Civil Code (Draft) sets the serial number of the article as Article 1028 and makes the following amendments to the content of the article: first, the term "victim" is changed to "civil subject"; (2) the expression "with evidence to prove" is added, clarifying the evidentiary requirements for the civil subject to assert the right to make such claim; (3) the phrase "infringing on the reputation right of others" is changed to "infringing on the right of reputation"; and (4) it is deleted" Where the media does not perform in a timely manner, the victim has the right to request that the people's court order the media to correct or delete the expression within a set period of time".
3. Interpretation of Provisions
This article is about the obligation to correct and delete inaccurate media reports.
This provision is in line with the provisions of Article 1025, Paragraph 2 of the Civil Code. Where the content reported by newspapers, periodicals, online media, and other media is untrue and infringes upon the reputation rights of others, the media's obligation is to correct and delete it (which shall also include the obligation to apologize). Failure to perform the obligation and refusal to correct, apologize or delete the act constitutes an infringement of the right to reputation by omission, and the media must also bear tort liability.
However, it is not comprehensive to stipulate only a time limit for correction or deletion, and an apology should also be included. The necessity of stipulating this article lies in the fact that the media's obligation to correct and apologize was originally a content that should be stipulated in the news media law, but the mainland has not enacted such a law, so the legal adjustment of media behavior can only be undertaken by the civil law. Articles 1025, 1026 and this article of the Civil Code are tantamount to drawing a line for the conduct of the media, playing the role of the news media law, which is conducive to protecting the legitimate rights and interests of civil subjects, protecting the rights of the media to report and criticize the news, balancing the interests of rights protection and media supervision, and promoting social progress.
4. Cases
A medical care supplies company sued a certain industrial and commercial newspaper and a medical device company for infringement of the reputation rights of legal persons
Facts: "XX Industrial and Commercial Daily" sent reporter Zhao Moumou to the provincial medical company for an interview. Xu, the manager of the company, introduced to Zhao that many of the medical devices and equipment purchased by the staff hospital from a medical care supplies company with more than 2 million yuan had quality problems, and a medical care supplies company also sold goods at a price higher than the national price. According to the above interview, Zhao Moumou wrote a press release on "The Management of the Supervision of the Production and Marketing of Medical Devices Should Be Strengthened", which was published in the "XX Industrial and Commercial Daily" after being reviewed by the editorial department of the "XX Industrial and Commercial Daily". Subsequently, a medical and health care supplies company reported to the "XX Industrial and Commercial Daily" that the above report was untrue. Later, the large-scale medical equipment was accepted by professional and technical personnel, and met the product quality standards, and no problem was found that a medical and health care supplies company sold goods at a higher price than the national price. Therefore, a medical and health care supply company sued the court. The court held that "XX Industrial and Commercial Daily" criticized a medical and health care supplies company by name in the newspaper without verification of the criticism manuscript written by reporter Zhao XX, resulting in the untruthfulness of the report and causing damage to the reputation of a certain medical and health supplies company, and its behavior infringed on the reputation of a certain medical and health supplies company, and should bear civil liability. In particular, after the article was published in the newspaper, the provincial medical company sent a letter to the newspaper to confirm that the situation reported was basically true, and it was also an infringement.
5. Analysis
This case is a typical case of defamation infringement caused by false media reports in mainland judicial practice. As far as the facts of this case are concerned, the newspaper criticized a certain medical and health supplies company by name in the newspaper for having quality problems in its products without verification, but after professional inspection, the company's products did not have problems, and the newspaper's report was inconsistent with the facts, which constituted an inaccurate report. A medical and health care supplies company can request the "XX Industrial and Commercial Daily" to correct or delete the relevant reports, and if the "XX Industrial and Commercial Daily" does not correct or delete, a medical and health care supplies company can file a lawsuit. The false report led to a decline in the performance of a medical and health care supplies company, damaged its reputation, caused damage to its reputation, constituted an infringement of the right to reputation, and also damaged the economic interests of a medical and health supplies company. At the time of the adjudication of the case, the mainland's rules on media infringement were not yet perfect, and the court presciently ruled that the victim had the right to request the media to take necessary measures such as correction or deletion in a timely manner, which had a certain impact on the adjudication of media infringement cases in mainland China, and laid the foundation for the subsequent formulation of judicial interpretations related to the right to reputation and the formulation of Article 1028 of the Civil Code.