Article 1027
Where literary or artistic works published by the perpetrator depict real people, real events, or specific people, contain insulting or defamatory content, and infringe upon the right to reputation of others, the victim has the right to request that the actor bear civil liability in accordance with law.
Where literary or artistic works published by the actor do not depict specific persons, and only the circumstances in them are similar to those of that specific person, civil liability is not borne.
I. Purpose of this Article
This article is about the infringement of the right to reputation by literary and artistic works.
II. Evolution of the Provisions
Prior to the promulgation of the Civil Code, the laws, regulations and departmental rules of the Mainland did not make any special provisions on the infringement of the right to reputation by literary and artistic works. Article 9 of the Answers to the Answers on the Right to Reputation issued by the Supreme People's Court in 1993 specifically stipulates the following provisions on disputes over the right to reputation arising from literary works: "The writing or publication of a literary work shall not be deemed to infringe upon the right to reputation if it is not the object of description of a specific person in life, but only if the circumstances of the work are similar to the situation of someone in life." Where a literary work depicting real people and real events insults, slanders, or discloses the privacy of a specific person to harm their reputation, or where their real name and address are not stated, but the facts are directed at a specific person, and there is content in the text that insults, defames, or discloses privacy, causing damage to their reputation, it shall be found to be infringing on the reputation rights of others. After the work has been found to have infringed upon the right of reputation of others or has been informed that it is clearly an infringement of the right of reputation of others, the editorial and publishing unit shall publish a statement to eliminate the impact or take other remedial measures; The Understanding and Application of the Answers of the Supreme People's Court on Several Questions Concerning the Trial of Cases Concerning the Right to Reputation further explains the infringement of the right to reputation by literary and artistic works as follows: "It is generally believed that literary works, such as novels, should originate from and be higher than life. The characters in the works are often not simple reproductions of a specific character in life, but should be fictional characters that have been processed and processed by the author. Therefore, when dealing with cases of disputes over the right to reputation arising from the writing and publication of literary works, there is a view that as long as a literary work is not a reportage or biography with a real name, it does not constitute an infringement of the right to reputation of others because it is not directed at a specific person. Filing a lawsuit against the author of the novel for the right to reputation is a self-matching position. However, in the course of adjudicating cases, local courts have found that in practice, there are not only those who deliberately slander others through literary creation, but also those who cause damage to the reputation of others due to the negligence of improper handling of materials. "Judging whether an act constitutes an infringement of the right to reputation of others is not limited by the mode of conduct, and it cannot be considered that a literary work does not naturally constitute an infringement of the right of reputation of others. According to the Answers on the Right to Reputation, to determine whether a literary work constitutes an infringement of the right to reputation of others, it is mainly necessary to see whether the work depicts a specific person in life, has content that insults, slanders or discloses his privacy, and causes damage to the reputation of a specific person. ”
The Civil Code refines and summarizes the adjudication rules determined by the above-mentioned judicial interpretations, forming the prototype and foundation of this article. Article 807 of the Draft Chapters of the Civil Code stipulates for the first time that a work infringes on the right to reputation: "Where a work published by a civil subject has circumstances similar to that of a specific person, but does not use a specific person as the object of description, it shall not bear civil liability." Where a work published by a civil entity depicts real people and real events, or uses a specific person as the target of the description, contains insulting content, and infringes upon the reputation rights of others, the infringed party may request that the infringer bear civil liability in accordance with law. Article 807 of the Civil Code on Personality Rights (Draft) (Second Draft) has been adjusted to a considerable extent: first, the order of the provisions has been adjusted, first providing for the infringement of works, and then providing for exemption clauses; second, the scope of works has been limited to literary and artistic works; third, "civil subject" has been changed to "actor"; fourth, "defamation" has been added to the infringement method; fifth, "the infringed party may" has been changed to "the victim has the right"; and (6) the "not to describe a specific person" in the exemption clause has been adjusted to The plot is similar to that particular person". Article 807 of the Personality Rights Part of the Civil Code (Draft) (Third Draft) and Article 1027 of the Civil Code (Draft) both continue the provisions of the Second Draft, and are finally presented in Article 1027 of the Civil Code.
The basic content, principles and spirit of this article inherit the judicial interpretation and the basic views of the Supreme People's Court on this issue, and compared with the original judicial interpretation, the main adjustment is to expand the "literary works" to "literary and artistic works", so as to cover different forms of infringement of works as much as possible;
3. Interpretation of Provisions
This article is about the liability for infringement of the right to reputation by literary and artistic works.
The determination of liability for infringement of the right to reputation by literary or artistic works shall be determined in accordance with the differences between the provisions of the two paragraphs before and after this article.
(1) A work that depicts a real person, a real person, or a specific person. Any literary or artistic work published by any person that uses real people or real events or specific people as the object of description, due to the certainty of the object of description, as long as the content of the work contains insults, slander, etc., and there is damage to the right to reputation of the subject of the description, it constitutes an infringement of the right to reputation, and the victim has the right to claim the right of reputation, and may request the author to bear civil liability for infringing on the right to reputation. Here, the key is to determine whether the work depicts a real person or a specific person. If the real name is used, it is easy to determine that this is the specific person. If the real name is not used, the criterion for judging is whether the basic personality characteristics, basic life and work experience are consistent, and if there is consistency, it can be considered that the description is a real person and real thing.
(2) Works that do not depict a specific person. If the literary or artistic work published by the perpetrator is not the subject of a specific person's description, but only the circumstances in it are similar to that specific person's circumstances, and do not conform to the principle of consistency between the main personality characteristics and the main life and work experience, it is not a description of real people and real events, and it is not considered to be an infringement of the so-called victim's right to reputation, and the author should not bear civil liability.
4. Cases
Wang v. Liu and four magazines including "XX Literature" in a dispute over infringement of the right to reputation
Facts: Hebei Province's "XX Daily" once published a long newsletter entitled "Rose Resentment", reporting on the struggle between Wang Moumou, a former statistician of a certain company in Funing County, and unhealthy trends. After that, according to the feedback of some people, Liu believed that the article was untrue. Liu said that "it is a positive audio-visual" and wrote a "timely documentary novel" - "A Good Rose - "Special Product Wang Moumou". The article claimed that "Wang Moumou should be exhibited", and used language such as "little goblin", "big monster", "hooligan", and "mad dog" to insult Wang Moumou's personality, and submitted multiple drafts to expand the negative impact. Wang Moumou sued the court. The court held that Liu used his works to insult Wang's personality and infringe on his right to reputation, and that he had submitted his works to the editorial offices of several magazines for publication, further spreading the impact of infringing on Wang's right to reputation. Liu's above-mentioned conduct caused serious consequences to Wang and his family in terms of mental, work, and life, and should bear primary responsibility in this case. For the publishing media, if they have fulfilled their censorship obligations, if they delete insulting or defamatory content, and if the circulation is small and the scope of diffusion is not large, they shall bear correspondingly smaller responsibility, otherwise, if it constitutes infringement, they shall bear primary responsibility.
5. Analysis
This case is a typical case in mainland judicial practice in which the publication of literary and artistic works constitutes an infringement of the right to reputation. In this case, Liu wrote the literary work "A Good Rose Flower - "Special Product Wang XX") against Wang, which was an act of writing literary and artistic works based on real people and real events or specific people as the object of description. The work contains a series of insulting and defamatory content such as "little goblin", "big monster", "hooligan" and "mad dog", which is an act of infringing on the reputation of others, and the victim Wang Moumou has the right to request Liu to bear civil liability in accordance with the law. In this case, whether the media has fulfilled its obligation of reasonable verification is mainly based on whether it has published excerpts and deleted insulting and defamatory content, the size of the magazine's circulation, and whether it has taken the initiative to apologize after publication.