Self potential and local media era

Author: blue and

(published in the "Youth Daily" China)

This is the best of times, it was the worst of times.

This sentence, perhaps on the precision at this time. Needless to say, we are now in the era of change in a large surge, various groups, interests, ideology intertwined collision, a contention of a hundred schools of thought trend.

This time, gives us a hitherto unknown behavior and the space of imagination, but also brings hitherto unknown confusion: we hand in calling for democracy, on the other hand, but also in deliberately plan obtaining monopoly opportunity; on the one hand for the rule of law, on the other hand, but also in the treatment of body odor banner waving people wield absolute power, pleasure; on the one hand seek justice, game of chance on the other hand in rob discourse hegemony manufacturing asymmetric; hand in advocating kindness and conscience, on the other hand do their best trampled dignity and weak......

These contradictions, in Yao's father v. Zhang Xian defamation case, embodied most incisive. We acknowledge,The defendant Zhang Xian early is right intention in the Yao Jiaxin case,But this kind of justice is the violent emotions of kidnapping,Gradually evolved into a use unscrupulous divisive tactics out of justice. In order to its so-called "realization of judicial supervision" and "justice" target,The defendant Zhang Xianshun when it,Make full use of the technical advantages in the media age will be different words and means, indiscriminate spread to the whole society. The purpose of justice to go to the non implementation of a non justice means. So, extremely easy to lead the society into a value to replace one tyranny by another cycle of evil, evil.

After Yao's case, the defendant Zhang Xian through the micro-blog, blog, rumors, all kinds of shady fabricated amplification and public security, and the violent emotional catharsis propagation, kidnapping, making public opinion "public opinion", and then attempted kidnapping judicial. Such behavior will only destroy original social contract and moral system, in the weak balance of the society into the last straw, lets the entire trust system crumble, so easily lead to social unrest.

In addition, it also created a media violence intervention judicature is extremely bad precedent. If this kind of protection mode become the paradigm, eventually led to the court is not based on facts and laws, but the network db. So, not only justice drifting further and further away, it will make everyone into public opinion and the judicial terrorism vortex, unable to extricate themselves.

We are grateful for the media age. The point opposite micro-blog instant communication, the mass of individual sounds vision can be realized. In micro-blog space, everyone isREPORTERVoice, once issued, through the "fission" type propagation effect, caused the whole society of onlookers. Micro-blog also becomes the carrier of public opinion the most powerful ever. Micro-blog appears, and makes the discourse filtering and voice of the official monopoly become history, individual voice to respect and communication. This is a great technology revolution, its progressive significance remarkable.

But, this kind of right is abused. In the case of simple, simple in fact law; in the case of complex, complex network "in public opinion". In this case, a commercial, team oriented "network mob" which are active, orders are out, all the wind from, organized, step by step force strangulation of dissent. The group identity of virtual, unified, vulgar, common words, flesh search, insulting, telephone harassment of dissident, and the units and departments of malicious complaints, harassment besieged, all network violence and the hegemony of discourse, cut off the alien, to realize the network in, eventually making a sound strong monopoly. This approach, is tantamount to the virtual space created a network version of the cultural revolution.

So, the Internet into a slaughterhouse, violence, the commercialization of the false "opinion" cause a temporary clamour, the real sound to send. If the control practices become the only proper course to take to reach the goal, everyone to use, then, an open and free Internet does not buffer the social contradictions of the "safety valve" role, it will promote community opposition, eventually in a cocoon around oneself, the fear, the nest, has the egg peacefully?

So, how to better use to regulate this discourse right, how to really enjoy the blessings of micro-blog era, this is a need to face the new topic.

Network tort is do what one wishes without restraint, its root lies in the extremely low price, the cost of infringement, the perpetrators and victims of the loss and suffering serious asymmetry. As the mainstream development of virtual life, legal lag disadvantages. At present the network infringement punishment are largely limited to civil aspect, mainly is the general principles of the civil law "regulation" and "tort liability act", the tort discretion the main idea in the reality, but due to the severity of network tort consequences far beyond the reality of infringement, this kind of punishment is still thin whip penalty crime, no warn others against following a bad example, therefore, the network legislation imminent. In this case the plaintiff in the litigation request "change" increase in the defendant in the20Continuous media30Day issued not less than3000The word of apology, no one seems to have no predecessors, but increase the cost of infringement, frighten the network mob good intentions manifest.

In fact, regardless of the reality or the network world, sacred private right such as home, the wind can enter, the rain may enter, the king can not enter, natural rogue thief can not enter. We should prevent the public power expansion of private rights in the field of hijacking, also beware of the weak polymerization flagrant violation by fairness and justice in the name of individual rights behoove. So, in the case of privacy protection to benchmark value self-evident.

In such a complex network environment, today's trial, be not easily won. This case from the case to date, has been nearly half a year, in the process, the case was artificially with too many tabs, given a value too much, clamoring to "network mob" means the siege, the reputation infringement case with simple become fantastic and complicated, but in fact, we are pursuing is very simple:

We need the dignity, need not hurt; we need to compromise, not hatred; we need reason, need not violent; we need to civilization, does not need the savage. Our request is not high, is to respect and accommodate each other, only a sincere apology, just return to common sense: between people is not just a dragon and a tiger in combat, fight at outrance zero sum game, there is forgiveness, compassion and love......

We look forward to the future society is a respect for the moral and legal, maintain rational social fear and forgiveness.

This is the case, perhaps the value.

[from blue and lawyers "Yao's father reputation right case agent word"]

Author:Blue and lawyers

Tel: 13811416498

Electronic mailbox:Lanhelawyer@163.com

Medicine Qingwei v. Zhang Xian reputation infringement case

The first word agent (short version)

 

The presiding judge, judge:

Blue and lawyers as the plaintiff in the case of Mr. Yao Qingwei's agents to participate in today's hearing, honored. Because, today we will witness the classic case Chinese since media era.

In the case of the bowelOn the background of social mentality, tangled, complex media context, special characters, its social and historical value than the case itself. The case will be the construction of civil society, the virtual space of network privacy protection, regulation, moral and legal boundaries of discourse power expansion, and the relationship between the independence of the judiciary, public opinion and the judicial, far-reaching impact the civilization of rule of law and judicial ethics problems. The positive effect of the continuous fermentation, is serious day after day. Bold predictions, today's trial, will go China law and social civilization.

Before making specific agency comments, the lawyers protested to the defendant Zhang Xian, the reasons are as follows:

9Month29Day, the first day of the evidence exchange, Zhang Xianyi out of the courtroom for the media talk a lot of nonsense: medicine Qingwei v. the reputation infringement is in "a waste of judicial resources", and said: "is not for the sake of a piece of money, medicine Qingwei come, I'll give him on the spot". That night, the defendant Zhang Xian in his blog, entitled "thank blue and lawyers sent me value6000Yuan toilet paper "article, will be submitted to the court by the plaintiff, notarial evidence as toilet paper. The paper he had "although the price is expensive, in addition to the toilet to wipe my ass with what else? Ha ha, but still no toilet paper in toilet, put it, to "," within the solution urgently to me to wonder, to a piece of money demand, medicine Qingwei willing to spend such a high price, this is not you deliberately do? I put a piece of money to you not to go? Oh!" , "Yao was alive, he said the farmer difficult, now, his father finally can use the price of toilet paper for migrant workers brothers to make a little contribution." Like a pair of legal and rogue image, but what about the teacher's dignity.

The defendant Zhang Xian this kind of frivolous speech should be a model for others, not only about the university teacher identity, and contempt for the plaintiff and his agent serious insult, judicial, trampling on the dignity of the law.

Until today, no infringement accused Zhang Xian fails, Cichangbihe, talk nonsense, as in the past to the language violence to the plaintiff and their families and even agents strong, even stir up enmity, frame, Diaocijiasong attack. The private network space full of complaints swearwords, absurd violent, very person can understand.

The most ridiculous is, the defendant Zhang Xian to stop hearing, malicious slander of the agent, which means despicable absurdity is as the acme of perfection. On the second day before the evidence exchange, i.e.11Month10Day, the defendant Zhang Xian to the public security department report said the case the plaintiff agents to serve their school Xi'an Electronic and Science University bombings, killing the desire for. After the Xi'an City high tech District Public Security Bureau Branch into a large number of police investigation and verification, the allegations are It is sheer fiction., false reporting system.

The defendant Zhang Xian's words and deeds then no boundary, pragmatism popular, often collide with moral and legal bottom line, Bimu or the world, public opinion in an uproar, bad social impact.

In view of this, the court drew reprimand him on the.

Now the case put forward the following agents, for the collegial panel determine:

 

One, the fact of infringement

The defendant Zhang Xianyuan Department of Yao's case the families of the victims civil agents. Since this year4Months, the through opening in Sina, Sohu, Tencent NetEase, each big door website, blog micro-blog, spread to the plaintiff and his family series of comments. It has been proved that, some fact declarative speech without investigation and verification, are purely fictitious; in addition, such as "murderers," parents "nationality", expelled people "do bitch archways stand", "it is necessary to destroy the Yao's body, and destroy the Yao's soul" and other violent insults, the there are.

The defendant Zhang Xian by fabricating series called the authority of the truth, the plaintiff and his family malicious slander, and wantonly insulting, misleading the public opinion, the public has caused a major misunderstanding, bad social impact, reduce the image a demeaning and social evaluation, seriously disturbed the normal life, to the plaintiff and his family brought tremendous mental trauma. The defendant Zhang Xian's behavior has constituted an infringement of the plaintiff.

The accused Zhang Xian of cyberspace tort claims, probably can be classified as follows. In view of the evidence has been submitted to the court and the cross examination, the agent word glory, only one representative speech enumerating, singles, be as. (Note: the following micro-blog, blog content is for the original copy, without any modification, such as punctuation, grammar, logic, language and other defects are the original heritage; in order to avoid the tedious length, deliberately guide, insulted the intelligence of suspicion, not its one by one analysis ()The specific micro-blog omitted)

    1The social contradiction, the government dignitaries, fake identity background as well as the military procurement shady, set up the bureaucratic, businessman, army worms and other social image. Give the child a stick ", two", "two rich generation", "two generation" and other sensitive label, stimulate the public nerve, intensify the social tensions, the plaintiff and his family to public criticism. (Slightly)

 2, the Xi'an City Intermediate People's Court of criminal judgment despite the fact that, outside the law for punishment, as the criminal investigation role, making "the mysterious man in black", alluding to the plaintiff in the Yao Jiaxin murder involved in crime, as the case to investigate the accomplice, criminal responsibility, to life in prison in the frame. (Slightly)

3"The police released, not as", "black" the Shaanxi high court, Procuratorate "shady", "politics and Law Committee of Shaanxi's", "the Shaanxi government mediocre officers lazy politics" in Party committees and governments and public security departments in various shady, alluding to the plaintiff by money, power and other social relations, and public security, procuratorate, court, politics and Law Committee trading power for money, collusion out power rent-seeking. (Slightly)

 4Deliberately torn, social class, create antagonism, the Yao Jiaxin case evolved into rich and poor matchups, game elite and civilian, even the traitors and the people's life and death battle, guide social antagonism, the plaintiff to the social emotional opposite. (Slightly)

 5The plaintiff, alluding to the media and academic authority, manufacturing aims to make Yao to use leniency in meting out punishment of public opinion, misleading the public, the intervention of the judiciary, to try to make judicial shady. (Slightly)

    The comments, we can't take the isolated perspective and metaphysical thinking mode, and it should be placed at the special context of events. The accused Zhang Xian of "Shaanxi public security's" theory as an example: the core power inside outside the power rent-seeking, trading power for money, rent seeking market buyer, in Yao's case, in addition to drug father, with others? The defendant to the plaintiff Zhang Xianci into theory is not a word, but look for business crony background and prior to the "shady" on logical relation, structure of the intended to be completely bared there and then slander.

In addition, the defendant Zhang Xian in his blog, wrote and reproduced on large attacking and insulting the plaintiff and his family's article was naked, insulting and personal attacks on the plaintiff, such as "fall into the cesspit climb out also kick ass from the fart spray men father dear", "bitch vertical arch", "his ass wipe clean", the words below the vicious, rare.

The defendant Zhang Xian in the network space in addition to the plaintiff naked insulting, also released a series such as "army worms", "four sets of real estate", "the mysterious man in black", "mysterious grandfather", "judicial cancer" and other sensitive information. The information related to the identity of the plaintiff, language, family income and involved in the crime, judicial case in drug interference "astonishing inside story", create a sensation, public opinion in an uproar.

At present there is enough evidence, the above information is fabricated, the defendant Zhang Xianxi deliberately false information, misleading the public, spread rumours to injure others'reputation. Prove the following:

(omitted)

    The above evidence, the defendant Zhang Xian to spread the so-called on the plaintiff and their families "fact" declarative statements, not investigation and verification. I also show that, can not guarantee that told the truth, this statement by than ordinary people more curious and suspicion, not of the facts based on.

On the contrary, the news reports, the plaintiff and the family real situation are described. Evidence (9On the plaintiff and his wife) the original unit two as proof that, the plaintiff in the2003Years has been transferred, the forces are only army generation chamber engineer, did not take any administrative duties, the defendant Zhang Xian cloud "is responsible for the ordnance procurement" fat, his wife also just Xi'an Huashan mechanical and electrical limited company general staff.

Moreover, Xi'an City Intermediate People's court in4Month22The Yao Jiaxin case made the first instance judgment, the judgment that, for the case of Yao people, without any friends, about are not true to the rumors plaintiff in crime, as for the use of money and power intervention judicial facts are create out of nothing, causeless.

As for the defendant Zhang Xian said "shady" army ", Xi'an police inside", "Shaanxi people's Procuratorate shady", "the Shaanxi high court," shady "politics and Law Committee of Shaanxi's" behind the scenes plotting theory, originated from where?Please be confirmed, to facilitate supervision, if there is no evidence, then in the period of social transition contradiction intense as CuO entransy to pay now, as a teacher of the people, not to Renkuan sermon, the gentle, but imagination, out of thin air, the manufacture is easy cause social unrest citizens distrust of the National Army and the public and opposition what is the intention?

To sum up, accused Zhang Xian of micro-blog and blog series of tort speech, except directly to the plaintiff and his family outside insult shouting "common language", the so-called "secrets disclosed the fact" the statement content untrue, pure fabrication. The behavior of the plaintiff's right of reputation infringement.

Two, the subjective intent

    Available evidence sufficient to show, the defendant Zhang Xian in manufacturing rumours before, had the full understanding of the plaintiff himself and his family, to spread rumours to injure others'reputation system, there are obvious subjective intention.

Zhang Xian has repeatedly claimed that the defendant, the plaintiff's situation cannot be found, "know nothing at all", all his "astonishing inside story" are based on reasonable imagination, curiosity suspicion and netizens are misleading, only for the purpose of judicial supervision.

This kind of representation, confusion in logic, clear in meaning: on the one hand, with the purpose of justice of dissembling improper; also cleverly obscured the truth, the so-called "know nothing at all", "reasonable imagination", dilute the behavior of the subjective malice.

But the fact is not so "pure". In essence, the defendant Zhang Xian in the Yao Jiaxin case verdict before it has fully aware of the identity of the plaintiff and family status, the reasons are as follows:

1,3Month23Day, the Yao Jiaxin case heard in the day, Xi'an local is the largest circulation newspaper "China Daily"A8Edition published in Yao's parents interview article "dialogue Yao parents: his behavior gave my heart apart",The plaintiff and the family economic situation made accurate and detailed description. The defendant Zhang Xian as an agent, has proven the housing problems, at the "Weifu Sifang" to the plaintiff's living area survey neighbors, to prove that he was exhausted all means to the medicine, the largest circulation in the local newspaper provides such information is not clear, may not pay attention to.

In addition, the defendant Zhang Xian has the report as evidence submitted to the court, proving there are two:

(1), the defendant has to read the reports, the information provided is know;

(2), the authenticity of the reported approval.

Apparent, the defendant Zhang Xianzao in3Month23Japan, already through the newspaper to know the identity of the plaintiff to background and family situation, he did not know about the description of reality, it is a lie.

2To provide evidence, the defendant:2011Years3Month24On the "Legal Daily"08Version "Yao Jiaxin was education narrow disadvantages", clearly medicine Qingwei identity and family,The defendant Zhang Xianyi will the report as evidence, at least two points:

(1), the authenticity of the content approval;

(2), can prove that the defendant at3Month24China has the "Legal Daily" know the truth.

3(, evidence9Two copies of the document) unit, is sufficient to prove the identity of the plaintiff background:

3Month24Day, documents the human resources department Xi'an north Huashan electromechanical Co. Ltd. on display an employee the plaintiff wife "the former Department of Xi'an north Huashan electrical and Mechanical Co., Ltd., the comrades in2001Years5Months in the production department of our company as a warehouse keeper,2009Years12From this unit official retirement"

On the same day, the original unit of the plaintiff's Chinese Liberation Army803That opened the factory army generation chamber show that: "Yao Qingwei is my room engineer,2003Years of change, has not held any administrative duties."

3Month25Day, the plaintiff will pass the bar will this two documents submitted to Xi'an City Intermediate People's court, in the Yao Jiaxin case files. As an agent, scoring is the most basic requirements, the defendant Zhang Xian can fully understand the real situation through access to files in the form of.

4,2011Years4Month2Day and6Day, Xi'an court court judges were interviewed Zhang Xian, Wang Hui, Wang Huizhi, Gong Zi father reasonable village branch secretary Zhang Guangming, form3A record of conversation. The record clearly that, when the judge told the plaintiff identity. General contents are summarized as follows:

4Month2Day, Xi'an City Intermediate People's Court of the victim to the Yao Jiaxin case husband Wang Hui clarified: "Yao's father is a peasant origin, admitted to military post in the eastern suburbs a factory when the military representative, his mother is a retired worker in Huashan factory."

Wang Hui's father, the king said: "the rational repay you give us, compensation money can't give Bei Lei Cun (i.e., the victim's father Zhang Pingxuan village)." So that, the Yao Jiaxin case relatives did not give up the civil compensation. The defendant Zhang Xian about the family of the deceased to give up the civil compensation, not the principal intention.

Gong Zi village branch secretary Zhang Zhiguangming said: "if the case is not a fair judgment of the situation, World Horticultural Exposition opening of the time, I will take them, under the banner to demand justice judgment."

4Month6Day, display Xi'an court judges and Zhang Xian court transcript of the conversation, Zhang Xian hand that Yao without any death reason, even if the plot was established, only "slight surrender" (note:The concept of Zhang Xian's original), and made it clear that, "the death penalty is sentenced to death, the number of claims or to compensate how many." Also said, "I have made a few posts on the Internet, many domestic and foreign post person, there are a lot of people said to aid victims home."

Three notes Xi'an City Intermediate People's court that, Wang Hui, Zhang Xian et al. Hand to ask the court to the death penalty, on the one hand claim economic compensation. In the three report, about the case facts is the core,4Month2Day, Xi'an Intermediate People's court judge to have the victim's family told Yao Qingwei's true identity and family situation, the defendant Zhang Xian as its citizens agent should know the judge informed.

In addition, the defendant Zhang Xian in the first exchange evidence before, had5The initiative and medicine Qingwei call to apologize, privately, compensation for losses, slap kneel, begged the plaintiff withdraw. In the9Month25On the phone, the defendant Zhang Xian admit to4Month6On the court, "asked me to drink tea, Ting Zhang long to look for me to talk about some things,...... Was introduced to you is a representative of the army, I finally know the military representative is stem what of, that is in quality inspection or what happened."

Thus, even3Month23Day,24Day,25Day, the defendant Zhang Xian be out of touch with reality, really did not know, that is beyond all dispute, at the latest4Month6Day, the plaintiff's true identity and family background already know.

     To sum up, the defendant Zhang Xian in spreading rumours before, had the full understanding of the background and family situation, communication and all sorts of false information, not as the media, is the premise to imagine in ignorance and suspicion made, their words and deeds are obviously subjective intention. Thus, even if the defendant Zhang Xian argued that the series of false speech is reproduced netizen, also is in knowing the truth under the premise to deliberately distorted the facts do reproduced, with obvious subjective malice. Therefore, no matter what kind of rhetoric, the defendant Zhang Xianjie shall assume the tort liability of difficult words.

Three, the motivation of doubt

Thus, there is a is not open around the puzzle to be cracked: the defendant Zhang Xian knows the true identity and family background, such as the power of identity, frequently made four sets of real estate, trading power for money and other series of rumors, the real motive?

The defendant Zhang Xian repeatedly emphasized that such a purpose is to supervise the judicial. Regardless of its authenticity, to express itself, there is a logical paradox, lack of trust in the judicial system to take all the way to supervise the behavior itself based on justice, doubt.

In fact, the rumor concentrated outbreak, i.e.4Month22Day, Yao is Xi'an City Intermediate People's Court of First Instance sentenced to death. The defendant Zhang Xian about the "justice", "the army of two was the guillotine" and "from the body and soul completely eliminated the Yao" sentencing objective has been reached.

Therefore, the purpose of the supervision of the judicial justice in Yao was sentenced to death after rumors concentrated release is a false proposition. For we cannot from the justice reason, reel silk from cocoons can only from the evidence of existing complex:

1The defendant, Zhang Xianyu9Month22To9Month27Day, continuous5Call the plaintiff, apology, compensation for losses in private, slap kneel for consideration for withdrawal

In the9Month29The day before the exchange of evidence, the defendant Zhang Xian continuous5Call the plaintiff, afraid of hearing that voice, because once the court "is the series, endless......" (Zhang Xian.).

On the phone, the defendant Zhang Xiansui repeatedly to kneel, slapping, apologize to price begged withdrawal private reconciliation, but has the responsibility for excuses shirk and language through coercion, the plaintiff did not hear the slightest from a sincere apology, which refused to.

In the telephone, the defendant Zhang Xiansui repeatedly chicanery, pass the buck, but also very explicit to manipulate these false information to the,"Is that your family strong, they (Wang Hui) home vulnerable" (Zhang Xian said), social emotional confrontation.

2Zhang Xian, the defendant submitted5Month29Day two micro-blog published apology, that Zhang Xianye had for his family to the plaintiff and spread rumours to injure others'reputation behavior feel ashamed, but soon to be deleted

2011Years5Month29Day, the plaintiff could not the defendant Zhang Xian to insult and defamation, personally find Zhang Xian home to explain the situation. Both sides in the Security Department of Xi'an Electronic and Science University face to face4Hours of conversation. The defendant Zhang Xian in the subsequent micro-blog himself admitted that "do have misunderstood the local people", and the "Yao and his parents apology", but these two micro-blog less than two hours to be deleted.

Subsequently, the defendant Zhang Xian in his micro-blog, blogs also become aggravated to insult to the plaintiff, and inform the plaintiff on the phone: "I am now a public figure, I represent a part of people's position, cannot easily change."

In the4Month6Day, Zhang Xian said the hospital Xi'an tribunal judges and a transcript of the conversation, Zhang Xian, "I have made a few posts on the Internet, many domestic and foreign post person, there are a lot of people said to aid victims home."

Subsequently, SHANG network contributions to become another highlight of Yao's case. Then, rumors and online donation of inter related, or separate? This issue has carefully conceal mentioning, even when the donor was reasonable request to understand the contributions to have network owing to human flesh search, the siege.

Today, Zhang Xian is accused of making false claims true motives are a mystery......

 

Four, the consequences of the violation

Have a bad social influence accused Zhang Xian of tort, serious affront to the dignity of the plaintiff and the social evaluation of extreme depreciation, hurt to the plaintiff and their families.

In this case, the defendant Zhang Xian in his micro-blog, blog, make many against the family and false information, by express or implied to guide the audience to produce subjective cognition negative for the plaintiff. In the Zhang Xian micro-blog comments, a lot in this false information under the guidance of the audience does not grant the plaintiff "powerful, have the financial resources to protect life, son, bribe media, manufacturing shady judicial interventions" error evaluation, more unknown truth netizens frequently interfered with the family, with its over eight years in all the cross was the human flesh search, insulting and telephone harassment.

These encounters serious interference and to the plaintiff and his family physical and mental trauma. The plaintiff wife unbearable pressure, suffering from severe depression treatment in hospital.

The defendant Zhang Xian acts causing serious consequences, the details are as follows:

1, causes a netizen detractors, arouse social violent emotions, now part of review excerpts: (omitted)

Therefore, the defendant Zhang Xian such micro-blog cause net friend of many bad comments, so the social evaluation depreciated, negative social effects with butterfly wings spread effect.

2, the defendant Zhang Xian micro-blog and blog audience number, as a public figure, and his comments divergent effects are difficult to measure, the medicine Qing Wei reputation infringement consequence serious

The defendant Zhang Xian because of innuendo and passion in the Yao Jiaxin case, frequent media focus, has become a public figure, the network space has become the Yao Jiaxin case related information publish authoritative platform.

According to statistics, the defendant Zhang Xian opened the real name authentication micro-blog blog in Sina, Sohu, NetEase Tencent, much home website. The four portals micro-blog number of fans (followers) near100Million. The blog pageviews, Sina only a up500Million, and many micro-blog blog article was reproduced the world each big forum, audience numbers are difficult to statistics.

The difference between the network and reality is spreading rumors about the efficiency and the influence of as different as heaven and hell. In the realistic human point linear propagation on the point, the rumor is at best only you know I know all that, the audience and the effects of surface are narrow; but the network communication is passed a point opposite, breaks through the linear transmission limitations, real freely to outer space that everybody knows. Information by Internet, meter at the speed of light in transmission efficiency, global coverage in the media space, the formation of network propagation effects of a "fission" style, individual information immediately become the global dissemination of information, regardless of color no boundaries by the mass audience reception, instant infinite zoom, visibility in a man of the people of Obama ". Rumours spread through the network, it is easy to form the media frenzy, the wind Yela, sweep away the millions of enemy troops as I roll.

Therefore, such as the defendant Zhang Xian invented "army worms", "the official two generation", "two rich generation", "justice," shady "shady" politics and Law Committee of Shaanxi High Court "shady", they easily lead to social unrest and hatred of information, spread, infinite zoom. On the right of reputation damage mass dissemination of false information is difficult to estimate the effect of these. "People's Daily", "procuratorial daily", "China Youth Daily", "Legal Daily", "Southern Weekend" and other domestic dozens of media on the network rumor "Zhang Xian phenomenon" criticized, Xinhua news agency is more bursts20A rare gesture Yu commentary, the heavy combat network rumor. Thus, network rumor social harm also how big.

9Month7Daily, Nanfang Daily newspaper "commentator Zhou Hucheng to Yao father apology", said in the article "in the real situation that father Yao Jiaxin medicine Qing Wei family, I fell into a deep remorse....... Obviously I was misleading, the Yao as a privileged family. This among them, have a certain degree is misleading by drug victims Zhang Miao's agent, associate professor of a university Xi'an Zhang Xiansuo sent to Internet speech. Therefore, in the medicine Qingwei sued the Zhang Xian case, I have to reflect on their own behavior earlier, in an information fragment era, find the real information is so important." "Medicine Qingwei is obviously not what privileged, also not is what rich tycoon, just an ordinary people....... Once the dissatisfaction to the privileged social emotional fire was lit, and hard to extinguish. Then, the network, off the reel of medicine accused the voice. The truth is good, is wrong, the result is the heaven and earth, wrong." "No matter how, social emotional that has been hijacked in the certain degree. Non rational become mainstream, Yao at the cost of his own life for his murder, the problem is this crime is not the behaviour of the family, but the family had to carry a heavy chains of morals......"

This article largely reflects the many people were false information becloud the true mentality, through this article, can see Zhang Xian of fabricating false statements made public on medicine Qingwei and their families have serious misunderstanding.

   The qualification of the 3, the network reputation right infringement responsibility

Against the accused Zhang Xian of the plaintiff, is Internet defamation typical, by its nature, it is the extension of traditional network reputation infringement, but the infringement by means of a new medium, hence the general principle of tort liability is also applicable to the network tort, also belong to the general tort. According to "general principles of civil law"106Article, the principle of fault liability for tort. Internet reputation infringement take fault liability principle,Should be based on the behavior of people exist on subjective reasons premises liability. As previously discussed, in this case, the defendant Zhang Xian spreading rumors, has fully understood the plaintiff for himself and his family situation, its subsequent behavior obviously subjective intent, to spread rumours to injure others'reputation system. So, the perpetrators have subjective fault.

In addition, because of the characteristics of network virtual,The process of infringement and the results are more complex than the reality of the situation, on the basis of a reality is conducive to protecting the rights of the legitimate rights and interests of the principle, behavior of network tort in the behavior of human and social evaluation of the victim down whether a causal relationship exists between, generally without the burden of proof: as long as the implementation of the infringement, but also cause the lower the reputation disparaging or evaluation of the society, should have the causality between the behavior and the harm, unless the perpetrators have evidence to the contrary causal relationship does not exist.

In this case, the defendant Zhang Xian's torts includes libelous statements, such as "moth" "accomplice", "justice", including the naked insults, such as "murderers," parents "do bitch torii" etc.. Zhang Xian's tort exists objectively, and these violations have enough evidence to prove that Yao Qingwei is on the premise of identity and family status, purpose, obvious subjective intention, behavior existence fault; apparently devaluing and these behaviors have been administered Qingwei building adult dignity harm and social evaluation, based on above enumeration of those extreme comments and Mr. Zhou Hucheng's letter of apology, also can see Yao Qingwei's reputation reduce causal relationship and accused Zhang Xian of tort behavior.

To sum up, the defendant Zhang Xian implementation of the infringement of the reputation right behavior, the behavior is in knowing the real situation, subjective fault, and this led to the plaintiff's reputation happened, obviously a causal relationship exists between tort and damage result, therefore the defendant Zhang Xian infringement of the plaintiff's reputation was established.

According to "general principles of civil law"101Article1Paragraph: "citizens, legal persons shall enjoy the right of reputation, the personal dignity of citizens, legal persons shall be protected by law, prohibit the use of insult, libel or other means to damage the reputation of citizens, legal persons." "Tort liability law" article36Article1Paragraph: "Internet users, Internet service providers use the network infringes upon the civil rights and interests, it shall bear tort liability." "The Supreme People's Court on Several Issues concerning the trial of cases of reputation right answer" No.8Article3Paragraph: "the article content untrue, the damage to the reputation of another person, shall be identified as infringing the right of reputation" therefore, the defendant Zhang Xian should bear the corresponding tort liability on its behavior.

 

Five, the final statement

This is the best of times, it was the worst of times.

This sentence, perhaps on the precision at this time. Needless to say, we are now in the era of change in a large surge, various groups, interests, ideology intertwined collision, a contention of a hundred schools of thought trend.

This time, gives us a hitherto unknown behavior and the space of imagination, but also brings hitherto unknown confusion: we hand in calling for democracy, on the other hand, but also in deliberately plan obtaining monopoly opportunity; on the one hand for the rule of law, on the other hand, but also in the treatment of body odor banner waving people wield absolute power, pleasure; on the one hand seek justice, game of chance on the other hand in rob discourse hegemony manufacturing asymmetric; hand in advocating kindness and conscience, on the other hand do their best trampled dignity and weak......

These contradictions, in Yao's father v. Zhang Xian defamation case, embodied most incisive. We acknowledge,The defendant Zhang Xian early is right intention in the Yao Jiaxin case,But this kind of justice is the violent emotions of kidnapping,Gradually evolved into a use unscrupulous divisive tactics out of justice. In order to its so-called "realization of judicial supervision" and "justice" target,The defendant Zhang Xianshun when it,Make full use of the technical advantages in the media age will be different words and means, indiscriminate spread to the whole society. The purpose of justice to go to the non implementation of a non justice means. So, extremely easy to lead the society into a value to replace one tyranny by another cycle of evil, evil.

After Yao's case, the defendant Zhang Xian through the micro-blog, blog, rumors, all kinds of shady fabricated amplification and public security, and the violent emotional catharsis propagation, kidnapping, making public opinion "public opinion", and then attempted kidnapping judicial. Such behavior will only destroy original social contract and moral system, in the weak balance of the society into the last straw, lets the entire trust system crumble, so easily lead to social unrest.

In addition, it also created a media violence intervention judicature is extremely bad precedent. If this kind of protection mode become the paradigm, eventually led to the court is not based on facts and laws, but the network db. So, not only justice drifting further and further away, it will make everyone into public opinion and the judicial terrorism vortex, unable to extricate themselves.

We are grateful for the media age. The point opposite micro-blog instant communication, the mass of individual sounds vision can be realized. In micro-blog space, everyone isREPORTERVoice, once issued, through the "fission" type propagation effect, caused the whole society of onlookers. Micro-blog also becomes the carrier of public opinion the most powerful ever. Micro-blog appears, and makes the discourse filtering and voice of the official monopoly become history, individual voice to respect and communication. This is a great technology revolution, its progressive significance remarkable.

But, this kind of right is abused. In the case of simple, simple in fact law; in the case of complex, complex network "in public opinion". In this case, a commercial, team oriented "network mob" which are active, orders are out, all the wind from, organized, step by step force strangulation of dissent. The group identity of virtual, unified, vulgar, common words, flesh search, insulting, telephone harassment of dissident, and the units and departments of malicious complaints, harassment besieged, all network violence and the hegemony of discourse, cut off the alien, to realize the network in, eventually making a sound strong monopoly. This approach, is tantamount to the virtual space created a network version of the cultural revolution.

So, the Internet into a slaughterhouse, violence, the commercialization of the false "opinion" cause a temporary clamour, the real sound to send. If the control practices become the only proper course to take to reach the goal, everyone to use, then, an open and free Internet does not buffer the social contradictions of the "safety valve" role, it will promote community opposition, eventually in a cocoon around oneself, the fear, the nest, has the egg peacefully?

So, how to better use to regulate this discourse right, how to really enjoy the blessings of micro-blog era, this is a need to face the new topic.

Network tort is do what one wishes without restraint, its root lies in the extremely low price, the cost of infringement, the perpetrators and victims of the loss and suffering serious asymmetry. As the mainstream development of virtual life, legal lag disadvantages. At present the network infringement punishment are largely limited to civil aspect, mainly is the general principles of the civil law "regulation" and "tort liability act", the tort discretion the main idea in the reality, but due to the severity of network tort consequences far beyond the reality of infringement, this kind of punishment is still thin whip penalty crime, no warn others against following a bad example, therefore, the network legislation imminent. In this case the plaintiff in the litigation request "change" increase in the defendant in the20Continuous media30Day issued not less than3000The word of apology, no one seems to have no predecessors, but increase the cost of infringement, frighten the network mob good intentions manifest.

In fact, regardless of the reality or the network world, sacred private right such as home, the wind can enter, the rain may enter, the king can not enter, natural rogue thief can not enter. We should prevent the public power expansion of private rights in the field of hijacking, also beware of the weak polymerization flagrant violation by fairness and justice in the name of individual rights behoove. So, in the case of privacy protection to benchmark value self-evident.

In such a complex network environment, today's trial, be not easily won. This case from the case to date, has been nearly half a year, in the process, the case was artificially with too many tabs, given a value too much, clamoring to "network mob" means the siege, the reputation infringement case with simple become fantastic and complicated, but in fact, we are pursuing is very simple:

We need the dignity, need not hurt; we need to compromise, not hatred; we need reason, need not violent; we need to civilization, does not need the savage. Our request is not high, is to respect and accommodate each other, only a sincere apology, just return to common sense: between people is not just a dragon and a tiger in combat, fight at outrance zero sum game, there is forgiveness, compassion and love......

We look forward to the future society is a respect for the moral and legal, maintain rational social fear and forgiveness.

This is the case, perhaps the value.

 

    Yours sincerely

Xi'an Yanta District People's court

   

  Agent: blue and lawyers

2011Years12Month29Day

 

Attached: blue and lawyers

Tel: 13811416498

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