论名誉权诉讼中的公共利益原则——基于对公众人物理论的反思

肇始于美国的公众人物理论对英美法系国家的诽谤法和大陆法系国家的名誉权法制都产生了不同程度的影响,但国内外学术界对这一理论的看法仍莫衷一是。我国司法实务界积极在审判实践中将公众人物理论作为涉公共言论名誉权案件的裁判依据,但司法实践的适用与公众人物理论和真实恶意原则的本意发生了很大偏移。因此,应通过案例指导制度确立名誉权诉讼中的公共利益原则以取代公众人物理论,将主观因素和客观因素相结合确定公共利益的具体内涵。在具体适用规则上,应确立具有公共利益属性的公共言论的真实抗辩事由,涉公共利益名誉权纠纷应采故意或重大过失的归责原则,同时减轻公民和媒体在涉公共利益名誉权纠纷中的举证责任。

On the Principle of Public Interest in the Lawsuit of Reputation Rights——Reflection based on the Theory of Public Figures

The theory of public figures began in the United States had had different degrees of influence on the law of libel in Anglo-American legal system and also on the law of reputation in civil law countries.However,the domestic and international academic circles still have inconsistent view on this theory.China’s judicial practice circles actively use the theory of public figures as the basis for judging the reputation of public opinion in the practice of trial,but the application of judicial practice has greatly deviated from the intention of public figures theory and the principle of true malice.Therefore,the public interest principle in the reputation right litigation should be established through the case guidance system to replace the public figure theory,and the subjective and objective factors should be combined to determine the specific connotation of the public interest.On the specific applicable rules,the real defense of public speech with public interest attributes should be established.The public interest reputation dispute should be based on the principle of imputation of intentional or gross negligence,while reducing the burden of proof for citizens and the media in disputes over the public interest reputation.