"Kyoto lawyer" 101 Kyoto casesTheory research department / finishing

   In micro-blog on swearing to bear legal responsibility what kind? Beijing Haidian District people's court and the Beijing first intermediate people's court through the first and second instance verdict, affirmed the micro-blog right of free speech, also gives the legal boundaries.

Mention of the court of first instance verdict, personal micro-blog share emotional self platform, rather than rational pursuit of justice official media. Compared with the formal speech, speech on the micro-blog arbitrariness stronger, more strong subjective color, corresponding to the free speech grasp the scale is larger. But undeniable, freedom of speech is relative, the exercise to shall not infringe other people's legal rights. As the civil rights of projection in the real society and extend micro-blog, freedom of expression is not restricted.

The second instance court, personal micro-blog as a free speech space, can be personal point of view, through the empty words, expression, to the thing to human sense, provides a platform for the guarantee for the realization of our constitutional freedom of speech...... Especially relates to the content of the criticism, but also often played a positive role in the supervision of public opinion . In view of micro-blog has some positive significance to enrich people's spiritual life, each Internet users should maintain it, avoid using micro-blog speech to attack each other, avoid micro-blog become mutually invective space. Otherwise have posts against the others.

 

Case synopsis

　　2010Years5Month25To27Date, Qizhi software (Beijing) Co., Ltd. chairman Zhou Hongyi in Sina, Sohu, NetEase web micro-blog continuously published a large number of shelling Kingsoft Corp's remarks, including "Do things stealthily", "conspiracy", "witness", "murder a person with a borrowed knife", "crowding out" and other words, Zhou Hongyi's micro-blog media quote. Zhou Hongyi is the founder Qihoo company,360Security guards are the main Qihoo inc..

　　5Month30Day, slobber war up to the legal level. Partner Yang Damin Kyoto firm lawyers Beijing Kingsoft Internet Security Software Co. Ltd. of Zhou Hongyi micro-blog walk through speech, filed a lawsuit against damage Jinshan business reputation and product reputation behavior, claim the RMB1200Million, and asked Zhou Hongyi to publicly apologize.

The case was the media called "the first case micro-blog litigation".

Jinshan and360The long-standing enmity, both the intensification of contradictions from360Speaking of compatibility problem of security guards and Jinshan network shield.

　　2010Years5Month21Day, Kingsoft Corp said, the day has a large shield Jinshan network users, to the Jinshan software service charges360Security guards malicious uninstall shield Jinshan network. Found Kingsoft security laboratory investigation, 5Month20On the evening of,360The user security guards full version update, an excuse to compatibility problems, to entice users to uninstall shield Jinshan network.360Said the response, Jinshan network shield are difficult to uninstall, non normal forcibly injected the browser browser crashes, resulting in a large number of their own vulnerability was used as Trojan channel problems, it will let the user in the use of360Security guard or shield Jinshan network of choice.

After the two sides slobber war continuously, intensified.

　　2010Years7Month1Day, Beijing Haidian District people's court formally accepted the case.

　　2011Years2Month18Day, Beijing Haidian court made the first instance judgment, sentence Zhou Hongyi to stop the infringement, and delete micro-blog20A; Zhou Hongyi seven consecutive days in Sina, Sohu, NetEase three big websites published apology statement micro-blog home; decision Zhou Hongyi compensation Beijing Kingsoft Internet security software company limited economic losses including notary fees eighty thousand yuan; other claims rejected the plaintiff.

The first trial after the service, Kingsoft Internet Security and Zhou Hongyi for the verdict of the first trial both appeal.

　　2011Years8Month22Day, the Beijing first intermediate people's court made the two trial, sentenced Zhou Hongyi to stop the infringement, remove the relevant micro-blog two; Zhou Hongyi7Sina, Sohu, NetEase days at three sites micro-blog home published apology statement sentence; sentence Zhou Hongyi to pay Beijing Kingsoft Internet security software company limited economic loss of fifty thousand yuan.

 

First battle

A, Jinshan charges

Beijing Kingsoft Internet security software company claims, Zhou Hongyi successively in Sina, Sohu net, easily, Tencent site by micro-blog published articles without investigation and verification, only subjective conjecture, fictional facts, malicious slander, defame a large Kingsoft Corp business reputation and product reputation of the false statements, bad effects of extremely serious the students estate business activities of Kingsoft Corp, violated the Beijing Kingsoft Internet security software company's right of reputation and business reputation. Zhou Hongyi as the person in charge of a certain influence on competition in the industry, the discreet bears note meaning obligations, should for their words and deeds have expected consequences. Influenced by Zhou Hongyi adverse remarks and market factors, Jinshan software at2010Years5Month26Japanese stock market decline reached11.9%The market value of the loss, more than6Billion yuan. Excluding the impact of market factors, Zhou Hongyi should bear the liability for damages. Therefore, request the court to order Zhou Hongyi to stop the infringement, and to withdraw the relevant micro-blog; Zhou Hongyi7Day issued a statement of apology in the Sina, Sohu, NetEase, Tencent micro-blog home, at the same time in the "Securities Daily" "Legal Daily" published the apology to eliminate influence; any Zhou Hongyi compensation for Jinshan software security company limited economic loss1200Million and notary fees.

At the same time, Beijing Kingsoft Internet Security Software Company Limited issued the following evidence, prove that Zhou Hongyi's violation of the right of reputation Kingsoft Internet Security Software Co. ltd.:

(1Zhou Hongyi micro-blog) notarized32A, these micro-blog contains "do things stealthily", "conspiracy", "witness", "murder a person with a borrowed knife" and other words, the golden hill as "Yue buqun", "black", use a lot of obvious insult, disparaging language, several network media including traditional media attention and reported;

(2Zhou Hongyi is Sina authentication plus)"VPublic figure.

(3Kingsoft Internet Security Software Co. Ltd.) website publicity management team and Ge Ke written testimony, display Ge Ke as senior vice president of the company;

(4)2010Years5Month25Day,26Kingsoft software stocks, Jinshan software stock issuance,2010Years11Month5Kingsoft software stocks within one yearKLine chart;

(5Yahoo!) website article "Zhou Hongyi speech did not forget to attack the Jinshan: let its market capitalisation fall6A million ";

(6Xinhuanet.com) article "Zhou Hongyi: my little speech let Jinshan lost6A million "

(7Beijing Kingsoft Internet security company) for the payment of the notarization fee20892Element.

For Kingsoft Internet Security Software Co. Ltd. the prosecution, the defendant Zhou Hongyi argued: "micro case" occurred, Beijing Kingsoft Internet Security Software Co. Ltd. has not been established, therefore Zhou Hongyi comments on the "dot" case and Beijing Kingsoft Internet Security Software Co. Ltd., the plaintiffs have no right to sue; Zhou Hongyi's comments were micro-blog fact basis, not to insult, libel plaintiffs personality content. In its published micro-blog, there is no subjective loss caused by the intentional heart; there is no causal relationship between the loss and micro-blog Jinshan shares.

Two, attorney opinion

After the court proof quality certificate, Beijing Kingsoft Internet security software company party lawyer that the agent:

First, the plaintiff has the right to sue.

Beijing Kingsoft Internet Security Software Company Limited is a listing Corporation Jinshan Software Company Limited under the wholly owned subsidiary, is the Jinshan software's core business. The defendant in the micro-blog stated "golden hill" or "Kingsoft Corp" did not make a clear distinction between, on the public, the implementation of the shameless behavior was described in micro-blog in Jinshan Department is all related enterprises, is not unique to a listing Corporation or a software company, the right of reputation damage by the consequences of the final by Kingsoft all corporate. Without the foundation of the group company, the Associate Company as a whole reputation right is infringed, the core enterprise as authorized representative filed a defamation lawsuit and claim the case and the legal agreement, with the judicial practice of guiding significance, but also can save the judicial resources.

Second, the accused tort remarks as false.

The so-called "series of articles published by micro-blog opened the Kingsoft Corp painted" without adjusting verify, only by subjective assume, fictional facts, malicious slander, misleading the public, resulting in a bad extremely serious influence to the plaintiff and activities, the Kingsoft Corp of good reputation and corporate image. The defendant cannot provide true evidence of infringement claims relates to the series micro-blog article, should be identified as content untrue. Series of comments the content untrue constitutes a violation of the plaintiff in as the representative of the "Kingsoft Corp" the right of reputation.

Third, Jinshan shares fell a causal.

Affected by the bad comments and other market factors, Jinshan software in Hong Kong stocks2010Years5Month26Day decline reached11.9%The market value of the loss, more than6Billion yuan. Jinshan software stocks in a certain period of time, the abnormal drop, with a dense spreading false statements, widely reported in the media, micro-blog click rate, time of event and the defendant repeatedly show admission, in public, tort and the case can be found the defendant involved huge stock market decline of causality.

Fourth, the defendant has subjective fault.

Defendant2010Years5Month29Held in Beijing, the fifth China Internet webmaster conference speech, and show off their comments led to Jinshan shares fell second days12%Six hundred million, market value dropped. "According to40The micro-blog calculation, each1500According to each million100Word count, each word value15Million "show the defendant serious consequences for their actions to be aware and should be alert, but deliberately spread false facts, malicious speculation, disparaged as a competitor, the plaintiff has subjective fault.

Fifth, the case of great social and legal significance

Compared to newspapers, radio, television micro-blog and other media, has the characteristics of large amount of information, spread quickly. Because of the special function of its timely, rapid, information sharing, and become a kind of new media the most efficient, provide a more broad space for our personal expression of thoughts, feelings. But in the online citizens' freedom of speech should be restricted by the laws of the state of the same. The defendant in the network and the realistic society has a certain degree of visibility, as the person in charge of the national well-known Internet companies, more should take the responsibility to purify the network environment, the network resources propaganda health culture, create new custom civilization network responsibility and obligation. The micro-blog can foresee the article content will cause the lower social evaluation, affect the business reputation and corporate image of the circumstances, still wantonly intensive release, due to traffic and load a huge amount, and a large number of references to other media. The defendant breach of social morality, obvious subjective malicious, his behavior should be condemned by public opinion, and bear corresponding civil responsibility.

　　

Three, the court of first instance view

Beijing Haidian District people's court in the demonstration the defendant Zhou Hongyi's speech on the micro-blog will constitute a tort, such as to constitute an infringement, scope of responsibility and hours, proposed the following considerations:

First, the court of micro-blog characteristics.

Micro-blog is characterized by individual perspective, few words, instant expression, want to comment on what people feeling, let the audience to share his wonderful and sentiment, and these comments and insights as the public information on the Internet can refer to, learn for others. Personal micro-blog share emotional self platform, rather than the pursuit of rational justice official media, compared with the formal speech, speech on the micro-blog arbitrariness stronger, more strong subjective color, corresponding to the free speech grasp the scale is larger. But undeniable, freedom of speech is the phase of the exercise , not to infringe other people's legal rights. As a citizen society projection and extension of the micro-blog, freedom of expression is not restricted.

In micro-blog, when citizens freedom of speech and other interests of right conflict, since media "micro Bo characteristics influence the audience not specific, comprehensive", whether the micro-blog people's speech is affected by the guarantee of freedom of speech, constitute unjust injury to others the right of reputation damage, should also be benefit measure, comprehensive consideration of hair word specific identity, issued by the specific content of the speech, the audience, the relevant context specific situation, speech caused or may lead to the consequences of such judgment.

Secondly, the court is analyzed from the identity of Zhou Hongyi, that limit and the duty of care to Zhou Hongyi micro-blog freedom of speech should be higher than the requirements of ordinary Internet users or consumers.

The court thinks, Zhou Hongyi is a citizen, but not the ordinary citizen, but Jinshan competitors Qihoo360The chairman of the company, or micro-blog plus"V" public figures. Competitors are responsible for close relationships of interests between the human identity and the company which makes it difficult for competitors, make evaluation is objective, not the slightest feeling color, and difficult to avoid inner impulses have negative evaluation will reveal to the public opponent of competition. Once published on the rival review comments, more often because of personal position, interests, feelings caused significant biased comments. Zhou Hongyi in personal negative evaluation for competitors to reveal to the public, should think thrice before acting, restraint and.

The court then think, Zhou Hongyi as an important figure in the realistic society, the projection is also very important in the micro-blog field level, has many fans, more right to speak, should assume more responsibility. Zhou Hongyi for individual words and deeds on the micro-blog and its consequences have more conscious awareness, attention should be paid to overcome his opponent for competition competent assumptions, intentions inherent impulse malicious suppressed, more consciously to be restrained for your own words, to avoid the false or not fair and objective comments constitute defamation to competitors, then the damage to its goodwill.

Therefore, to limit and the duty of Zhou Hongyi micro-blog freedom of speech should be higher than the requirements of ordinary users or consumers, in the micro-blog speech is constitute an infringement of reputation right, should adopt the basic facts or approximately true insult, libel, without the use of words, comments are fair and reasonable, high standard not to malicious damage each other for reputation the only purpose, and consider the exemption is involved in public interest.

 

The second battle

One, both appeal

The first trial after the service, Zhou Hongyi for the verdict of the first trial of second instance court of appeal, request to withdraw the first instance judgment, rejected Beijing Kingsoft Internet Security Software Co. Ltd. all requests or remand.

Zhou Hongyi in the appeal claims: first, the court found the facts wrong. Because of its in micro-blog on "dot" case of the review is Beijing Jinshan software company, not the Beijing Kingsoft Internet Security Software Co. ltd.. "Dot" case occurred in the2005Years, when Beijing Kingsoft Internet Security Software Co. Ltd. has not. Zhou Hongyi in a micro-blog, Beijing Jinshan software company still exists. Therefore, the court of first instance found Zhou Hongyi in Beijing Jinshan software company limited speech invasion made the right of reputation Beijing Kingsoft Internet security software company belongs to the fact that the error. Second, the court erroneous application of the law. Zhou Hongyi thinks, judgement of whether a reputation infringement but focus on two points, namely: the concoctive fact behavior or insult or slander speech. The Kingsoft Corp in the "dot" case "perjury" description, the Kingsoft "malicious interference"360An full guard function description, the "Ge Ke excluded" the description is based on the facts. The micro-blog using "do things stealthily", "conspiracy", "witness" and other words belong to the exercise of citizens the right to criticize, accord with the normal Chinese idioms, and not fake, insult or slander others. In addition, in the judgment of first instance, the court considers restrictions and a duty of care to Zhou Hongyi free speech requires appropriate higher than ordinary users or consumers. Zhou Hongyi think violated "that all citizens are equal before the law" in the provisions of the Constitution for the practice of the court. Third, illegal procedure in the court. The court cited by Kingsoft Internet security software company "Jinshan software meeting memo recorded" in the judgment, the violation of basic rules of evidence, as the evidence has exceeded the time limit for adducing evidence. The plaintiff in the indictment cites micro-blog only nine, the defendant has also carried on the examination, but however the court of first instance judgment is required to remove the micro-blog directory20The court trial, the plaintiff is beyond the scope of.

Beijing Kingsoft Internet security software company also appeal. The reason mainly has: first, not on the part of the case description details and facts of the court of first instance verdict. A trial in2005Years "dot" case of the Kingsoft Corp to produce virus report said the situation: "really visible Beijing Kingsoft Corp issued false virus outbreak reporting materials, in the 'micro case' played an inglorious role" to describe and fact through access to a certain extent. Easy to make the public Kingsoft Corp as frame drop company report misleading and false. "The fact that dot" case is: Beijing Kingsoft Corp is issued2005Years virus outbreak in Beijing City, but the content is to provide network monitoring Beijing City Public Security Bureau office, the appellant has reason to believe that the network at the government supervision departments as the real situation, by means of monitoring technology has been the outbreak of the . Evidence of Beijing Kingsoft Corp did not know this issued its own description of the material is used to "report" drop company, the Kingsoft Corp is actually being used. Second, the first support eighty thousand yuan less than the amount of compensation appellant damage. During the Zhou Hongyi micro-blog frequently, Jinshan software stock loss six hundred million multivariate objective existence, can not deny the causality.

Two, the second attorney opinion

In the second instance court, Kingsoft Internet security software company litigation agent Yang Damin lawyer grounds of appeal against the defendant Zhou Hongyi issued the following agents:

First, the court did not the wrong person, a fact not wrong.

There is interest in Beijing Kingsoft Internet Security Software Co. Ltd. with the case, because the case infringement words theory leads to the enterprise reputation. Zhou Hongyi in the micro-blog does not Jinshan company were clearly distinguished, but generally refers to the "mountain" brand, the tort claims caused the damage must be "golden hill" the brand. Beijing Jinshanan Software Co. Ltd. as the "related enterprises and core subsidiary company Jinshan software" banner, will inevitably result in the "Gold Mountain" brand reputation damage and direct damage.

Second, the concoctive fact, spreading false information, the law does not apply the improper.

Jinshan no "perjury".

Perjury is a serious illegal and even criminal acts, in the absence of judicial organs that confirm set of circumstances, any individual or unit includes are not a substitute for the judiciary trial media. Zhou Hongyi to prove "Jinshan perjury" issued several articles and criminal judgments. But in this article and criminal judgments are did not appear "Jinshan perjury" argument or conclusion. Subjects in criminal judgment in court representation of the fabricated evidence for soldiers and the command of the "subordinate officers", did not mention the Kingsoft Corp or the Jinshan staff. Zhou Hongyi is not negative responsibility to use public figure status, widely spreading false facts lossy Kingsoft Corp's reputation, its subjective malice obviously.

360Constitute unfair competition.

Jinshan net shield and360Compatibility problems have been dealt with security guards between, that the court's civil judgments have been identified360To guide the practice of shield Jinshan network users to uninstall constitute unfair competition.360A suspected of unfair competition and slander goodwill in fact is very clear. Before the technology compatibility problems has not been identified by authorities, Zhou Hongyi will use "tricks", "sabotage", "bargain" and other words to describe the Jinshan, defamatory. Zhou Hongyi's grounds of appeal can not be established.

"Ge Ke excluded" false.

Zhou Hongyi in the micro-blog in Jinshan "Montenegro", think "Ge Ke such old Jinshan is squeezed out". In the trial Zhou Hongyi said the source of "hearsay", did not provide any evidence, shall be determined on the facts are not real.

The right to criticize to guard the boundary.

First the plaintiff cannot provide evidence of infringement allegations are true, the extensive use of limit insulting, disparaging, subjective and misleading statements over the citizens to exercise freedom of speech for critical remarks, constitute a violation of the plaintiff reputation

Public figures should be restricted freedom of speech.

The identity of the different people have different social responsibility. The law, regulations or judicial practice subject to different identities such as consumers, women, and children's rights and obligations are done differently, it is because of the differences of status of different subjects and may be affected on the related rights and obligations, in order to achieve the true sense of equality . Zhou Hongyi belongs to the social public figure, with fans and more right to speak, should assume more responsibility for their own, the consequences should have a more sober understanding. The Zhou Hongyi micro-blog comments from by restrictions and the duty of the demand to have higher than ordinary users or consumers.

A procedure is not illegal.

　　1 "Jinshan software meeting memo" belongs to the authorization.

"Memorandum" is actually equivalent to the power of attorney, solve the problem of entrusting other Associate Company, so it should not be the proof time limit.

　　2 Nine micro-blog is enumerated type description.

Although the plaintiff only mentioned in the first nine micro-blog indictment, not the micro-blog each content of all listed, but to refer to some paragraphs or vocabulary methods were illustrated, the plaintiff has all the infringing micro-blog as evidence submitted to the court and the defendant.

Three, the court of second instance view

Whether in speech about Zhou Hongyi constitute infringement issues, Institute court of second instance and a trial method consistent point of view. The Beijing first intermediate people's court think, personal micro-blog as a free speech space, can be in a personal perspective, through the empty words, expression of thinking Duirenduishi sense, provides a platform for the realization of China's constitution guarantee freedom of speech. At the same time, because of the micro-blog speech is arbitrary, subjective color, and even some incident expression, have become elements to attract attention "fans". Especially relates to the content of the criticism, but also often played a positive role in the supervision of public opinion. In view of micro-blog has some positive significance to enrich people's spiritual life, each Internet users should maintain it, avoid using micro-blog hair words to attack each other, avoid micro-blog become mutually invective space. Otherwise everyone may be others post against.

Zhou Hongyi held that, as a self proclaimed "network war veterans", as a public figure, think network spread fast wide, more should be cautious in their words and deeds....... Under this premise, in the context of Zhou Hongyi micro-blog, can't read Zhou Hongyi's subjective good faith, also cannot rule out the possibility of using Kingsoft security technology on the accused and obtain their own interests.

In the scope of infringement, the court of second instance is the court of first instance has narrowed. Trial court that, involved in the case "dot" case occurred in the2005Years, the object is a Kingsoft Corp in Beijing. And the plaintiff Beijing Kingsoft Internet Security Software Co., Ltd. was founded in2009Years, although Zhou Hongyi is accused of infringement micro-blog time is2010Years, reading Zhou Hongyi micro-blog users won't because of the comments directly to the plaintiff in the case of lenovo. So, the court found the content involved in the "micro" case due to the absence of any relationship with Beijing Kingsoft Internet Security Software Company Limited, and therefore not a trial.

The court found only two micro-blog tort. Such as: "it is nothing but want to live together first", "first shouted at the top of his voice, 'indecent!'" , "just like a pair of upright gentlemen look", "golden hill is really a moral man?" Offensive obvious description.

The court of second instance also identified week speech and Kingsoft Corp stocks there is no causal relationship between the evidence.

 

The lawyer handling the case summary

The verdict said: "personal micro-blog as a free speech space, can be in a personal perspective, through the empty words, expression of thinking Duirenduishi sense, provides a platform for the realization of China's constitution guarantees freedom of speech"...... "But relates to the content of the criticism, often play a positive role in the supervision of public opinion".

The court's decision to give a qualitative and a positive evaluation of the media for a micro-blog. That is to say micro-blog as people communicate, express their views, to express the feelings of the platform itself there is no good and evil, good and bad, good and bad, with the non issue. It is a platform of communication and media.

However, if people use this one platform or media to infringe the legitimate rights and interests related to the legal problems: micro-blog freedom of speech should not be bound by the law? The answer is in the affirmative. Any person including the micro-blog freedom of speech in the realization of individual liberty, not to infringe upon the legitimate rights and interests. This should be the legal boundary micro-blog freedom of speech.

How to identify the micro-blog speech is a violation of the legitimate rights and interests of others?

This is a complex problem, whether an infringement, really need a concrete analysis of concrete problems. In judicial practice, personal think should at least grasp the following three standards:

First, the facts of speech Is it right? True? There is no fudge the truth? The fictional facts? If not true, it should be responsible for.

Second, speech described while objective reality, but the fact Is it right? Can without the agreement of the parties and the wide spread? If spread relates to the infringement of personal privacy problem.

Third, micro-blog speech language whether offensive or defamatory language.

These three standards should be the basic standard of evaluation of similar cases.

In the "micro-blog era", the case micro-blog infringe the legitimate rights and interests of more and more. For the infringed person, take reputation infringement. For corporate, commercial libel cases have occurred from time to time. This new type of tort or criminal cases should be caused widespread concern in the whole society.

All comments

Professor Xu Xin of Beijing Institute of Technology College of law:

Micro-blog, God gave the best gift Chinese. In the freedom of speech as the luxury of society, micro-blog provides the most dynamic platform for the constitutional protection of the right of free speech.

"The first case" micro-blog has an important guiding significance for the future micro-blog infringement case. The decision to micro-blog function gave a positive evaluation, to provide a larger space for the micro-blog freedom of speech.

Guarantee freedom of speech is the first principle, then considering the restriction of malicious insults and defamation. Micro-blog personal share emotional self platform, speech. Standard infringement should be a general tort is more strict, the amount of compensation to consider micro-blog influence and communication range, degree of freedom of speech should be broader, so that micro-blog this speech tools and platforms to obtain sufficient space for growth.

The definition of freedom of speech to distinguish between public and private space "". The government or government officials criticized, degree of freedom of speech should be more. Government or government officials should be "ignored" by the criticism, even the most harsh language, even if the news section distortion, even serious distortion. General should not support a government or government officials reputation infringement lawsuit. Methods the government can clarify the facts obtained "relief", and to clarify the fact also is the duty of the government is supposed to do. We may wish to refer to America New York Times v. Sullivan's verdict, micro-blog speech "should not inhibited, full of vitality and wide open, although it may contain the government, official or personal fierce, harsh, even sharp attack".

The essence of freedom is micro-blog tolerate meanness, sharp speeches. As American the NAACP case verdict said, "if the freedom of expression to find the survival of the breathing space, we must protect the wrong opinion expression."

Slander and rumors for information flow freely, the truth from the freedom of the press. As long as there is free speech market competition, the truth will usually win. People's eyes, will ignore slander recognition rumors tell the truth. Therefore, in order to reduce the micro-blog of slander and rumor, need more micro-blog freedom space.

Contained in the "Caixin"

 

Free speech and privacy protection micro-blog Era

Beijing Yingke Law firm partner Wang Beibei:

Known as "the first case" micro-blog Kingsoft Corp v.360Chairman Zhou Hongyi micro-blog infringement case, Recently by the Beijing first intermediate people's court made a final decision, The two trial of the first instance that Zhou Hongyi should be removed from the original micro-blog20A reduced to2A, Zhou Hongyi should be compensation for Jinshan software amount to5Million yuan.

With the development of Internet technology, micro-blog has become the life of the information bearing and speech communication platform. As a new network media, its powerful forwarding function make everyone become a source of information, a message can be transmitted around the world in half an hour, provides excellent expression way for citizens to realize the freedom of speech. But micro-blog as an open information platform, the speech is very arbitrary, subjective color, it is difficult to shut sb. who some have an ulterior motive. Ordinary users do not know the truth is difficult to make a correct judgment from the mass of the letter interest, some irresponsible remarks often because the us to obtain a high degree of concern in a short period of time and frequency transfer.

Highlight micro-blog era free speech and privacy protection contradiction, is very important to a reasonable boundary is defined as micro-blog free speech in the sense of justice.

In this case, the court fully understand the micro-blog as share their perceptual characteristics of the platform, in defining tort liability boundary of it has not been too harsh on the freedom of speech, grasp the scale is the rational pursuit of justice official media more. But this does not mean that micro-blog is a legal vacuum, table as the verdict: "freedom of speech is relative, the exercise to shall not infringe other people's legal rights. As a citizen society projection and extension, micro-blog in freedom of speech is not unlimited. In micro-blog, when the public people freedom of speech and other interests of right conflict, consider micro-blog influence the audience not specific, wide 'media' characteristics, whether the micro-blog people's speech is affected by the guarantee of freedom of speech, improper hurt the reputation of others right harm, should also be method interest measure, considering the specific identity, spokesman issued by the specific content of the speech, the audience, the relevant context specific situation, speech caused or may lead to specific consequences to judge off."

This also means that different subject, comments on the same event obligations prudent different. As in the case of Zhou Hongyi as the chairman of Jinshan rival company's special status and capable of network media power of public figures, for his published remarks about Kingsoft Corp than ordinary people accountable care more.

Freedom of expression as a fundamental right of citizens, is specified to the contemporary countries, no theory is western or Eastern countries, socialist or capitalist countries of the constitution. It as a basic principle, also written into the "Convention on the civil and political rights". But the freedom of speech is relative, should be subject to reasonable restrictions contained , as the Convention, "the exercise of the right of free speech with a specific obligation and responsibility, so be certain limit System, but these restrictions provided by law and necessary for the following conditions: (a) respect the rights of others or reputation: (b) the protection of national security or public order, or of public health or morals."

A personal freedom of speech on the opposite is often the other person's personality right. The ideal state of the freedom of speech should be everyone self-discipline, follow the public ethics, respect for private property, rational to express their point of view. But in this network Non reality environment , participants are often very difficult to an objective and fair attitude to participate, to express personal views. Network is increasingly popular today, in this case as a typical, also sounded the alarm for us all, freedom, democracy is the basic point of each individual human rights radius is the same, beyond the legal limit to exercise the right of free speech, violate the legal rights of others, should bear corresponding legal responsibility.

Contained in the "Caixin"

"The first case" micro-blog can knock micro-blog rational?

Deputy director of Administrative Law Committee of the all China Lawyers Association, the Zhejiang star lawyer office director Yuan Yulai:

"The first case" micro-blog, a trial has been completed, Zhou Hongyi constitute defamation, the judgment to meet the psychological expectations of our. This Is the beat in our micro-blog main reason. A major feature of micro-blog is frank, straightforward, by feeling and hair, not over in one's mind, often not rational, will involve the legal liability issues. We really have to be careful, not always a moment.

 

"The first case" micro-blog and online free speech law boundary

Hongkong Shanghai Shue Yan University Professor, visiting professor of Fudan University, Communication University of China distinguished doctoral tutor, Shantou University Master unripe adviser Wei Yongzheng:

Abstract: with the development of the digital technology and the Internet, China has formed a system of mass media (including their website) and many users use a variety of media to spread such two different communication system. "The first case" micro-blog sentence would citizens online speech constitutional rights status, legal boundaries on free speech on the web -- have made beneficial exploration.

 

Data compilation:

Associated with the network reputation dispute applicable law

　　

"People's Republic of China Constitution"

Article thirty-eighth The personal dignity of citizens of the people's Republic of China are not violated. Prohibition of civil insult, slander and false accusation by any means.

Article thirty-ninth Citizens of the people's Republic of China are not violated residential. To illegally search or invade citizens prohibit residential.

Article fortieth The freedom and privacy of correspondence of citizens of the people's Republic of China shall be protected by law. Except for the needs of state security or of criminal investigation, inspection of communication by the public security organ or the procuratorial organs in accordance with legal procedures, no organization or individual may, for any reason, violations of freedom and privacy of correspondence of citizens.

　　

"PRC Criminal Law"

Article 246th by violence or other methods, openly insulting others or fabricating facts to slander others, if the circumstances are serious, is less than three years imprisonment, criminal detention, control or deprivation of political rights.

The crime mentioned in the preceding paragraph, tell just processing, but the serious harm to the social order and national interests except.

　　

"General rule of the civil law"

Article 101st: citizens, legal persons shall enjoy the right of reputation, the personal dignity of citizens are protected by law, prohibit the use of insult, libel or other means to damage the reputation of citizens, legal persons.

 

" The people's Republic of China Tort Liability Act "

Article thirty-sixth Internet users, Internet service providers use the network infringes upon the civil rights and interests, it shall bear tort liability.

Network users utilize the network to commit a tort, the infringee shall have the right to inform the Internet service provider to take delete, shielding, broken links and other necessary measures. The network service provider after receiving the notice did not take necessary measures in a timely manner, jointly and severally liable for damage to expand with the network subscriber.

The network service provider knows that a network user infringe upon the civil rights and interests through the network services, and fails to take necessary measures, shall bear joint and several liability with the network subscriber.

"The Supreme People's Court on the implementation of<The general principles of the civil law of the people's Republic of China>The views of a number of issues(Trial)"

140 in written, oral and other forms of propaganda field the privacy of others, or fabricating facts publicly vilify others personality, as well as by insult, libel, damage the reputation of others, cause certain influence, should be identified as infringing citizen's reputation right behavior.

150 citizens of the name right, portrait right, reputation right, reputation right and corporate name right, reputation right infringement, Rong Yuquan, a citizen or legal person to claim compensation for losses, the people's court may according to the degree of fault of infringer, violations of specific circumstances, the consequences and effects to determine the liability of compensation. 151. infringes upon the right of name, name right, portrait right, reputation right, the right of honour and profit, the infringer shall in addition to compensation for victims of losses, its illegal gains shall be confiscated.

　　

" Answers to the Supreme People's Court on Several Issues concerning the trial of the case of the right of reputation "

Eight, ask: because of a dispute over the right of reputation, publishing critical articles written by, how to determine whether an infringement?

Answer: because of a dispute over the right of reputation, publishing critical articles written by the people's court shall, according to the different situation of processing:

This paper reflects the problem basically true, not insult others personality content, should not be regarded as infringing the right of reputation.

This paper reflects the problem is basically true, but insulting others personality contents, the reputation of others injured, should be identified as infringing the right of reputation.

The basic content of the false, the damage to the reputation of another person, shall be identified as infringing the right of reputation.

Nine, ask: reputation dispute caused by literary works, how to determine whether an infringement?

Answer: writing, published literary works, not to describe specific object in life, just like someone plot and life works in the case, should not be regarded as infringing the right of reputation.

Describe the true literary works, insult, libel on a particular person or privacy disclosure damage to its reputation; or did not specify the true name and address, but the fact is fact specific to particular people or certain people as objects of description, insult, slander or privacy disclosure of the contents of this, caused the damaged reputation, should be identified as infringing the right of reputation.

Editing and publishing units in the works has been identified as infringing the right of reputation or told obviously belong to the infringing the right of reputation, should publish a statement to eliminate effects or take other remedial measures; refuse to publish a statement,

Don't take other remedial measures, or to continue to publish, publish infringing works, should be deemed as an infringement.

Ten, ask: tort liability form how to grasp?

Answer: the people's court in accordance with the provisions of the "general rule of the civil law" article 120th and article 134th, it may order the infringer to stop the infringement, rehabilitation, eliminating the effects, make an apology, compensation for losses. Restore the reputation, eliminate the effect, make an apology can be in written or oral form, content to be given by the people's court review.

Restore the reputation of the scope, eliminate the influence, should generally be quite and scope of tort caused by adverse effects.

The citizen, legal person is because reputation right infringement claims for compensation, the infringer shall compensate the economic loss caused by the infringement; civil and puts forward the spirit damage compensate request, the people's court according to the infringer's fault degree, violations of specific circumstances, the consequences of the damage caused to the victims, the discretion of the spirit.

 

"Interpretation of the Supreme People's Court on Several Issues concerning the trial of the case of the right of reputation"

Nine, ask: on product quality, service quality, criticism comments caused a dispute over the right of reputation, how to determine whether an infringement? 　　

Answer: consumers over producers, operators, sellers concerning product quality and service quality of criticism, review, should not be identified as infringing the right of reputation. But the opportunity to libel, slander, the damage to its reputation, should be identified as infringing the right of reputation. News unit to producers, operators, sellers concerning product quality and service quality of criticism, review, the basic content is true, do not insult the content, shall not be considered an infringement on the right of reputation; the main content untrue, the damage to its reputation, should be identified as infringing the right of reputation. 　　

Ten, ask: how to determine the range affected by the reputation right infringement of the production, management, sales losses and amount of compensation? 　　

Answer: by the range of production, management, sales against losses and amount of compensation for the right of reputation, can according to the customer return, caused by cancelling the contract losses to properly determining tort.

　　

"Internet information services management approach"

Article fifteenthThe Internet information service providers shall not produce, copy, publish, transmit information having the following contents:

(a) against the basic principles of the constitution;

(two) of endangering national security, leaking state secrets, subverting the government, undermining national unity;

(three) harm national honor and interests;

(four) to incite ethnic hatred, ethnic discrimination, undermining national unity;

(five) undermining national religious policy, promoting cults and superstitions;

(six) spread rumors, disturbs social order, undermining social stability;

(seven) distributed obscene, pornographic, gambling, violence, murder, terror or instigates crimes;

(eight) insult or slander others, infringe upon the legitimate rights and interests;

(nine) other contents prohibited by law, administrative regulations.

Article sixteenthThe Internet information service providers found on its website the information transmitted in this way clearly belongs to one of the fifteenth list, it shall immediately stop the transmission, keep the relevant records, and report to the relevant authorities of the state.