Defamation in cyberspace: A Japanese perspective

The aim of this paper is two-fold: first, to introduce how Japanese law and its jurisprudence have dealt with the case of on-line defamation, which is arguably one of the most acute problems in modern society, and second, to critically examine the efficacy of such an approach. The recent decision of the Supreme Court in on-line defamation (as oppose to off-line defamation) will be introduced as an exemplar of the way Japanese law and its jurisprudence have dealt with such an acute problem. A first step will be to provide, by way of background, a brief overview of how defamation in a conventional sense has been treated by the Japanese legal system. The second step will be to outline how the Japanese jurisdiction has dealt with on-line defamation, that is to say, to what extent the Japanese court regulates on-line defamatory comments made by the ordinary people. A third step will be to examine the efficacy of such an approach, and the final step will be to examine whether the UK court can learn a lesson from the Japanese jurisdiction. The author will draw upon Japanese jurisprudence, in order to consider whether a valuable lesson might be offered to the UK jurisdiction.     

过错与抗辩：以名誉权侵权为重点

不法性不应作为一般侵权行为的构成要件,而应由过错要件吸收。过错本质上为主观范畴,但其衡量标准可以客观化。言论自由与名誉权同属宪法规定的基本权,法律应慎重处理二者冲突的情形。名誉权侵权中应区分不同的行为人主体和被报道对象而作具体分析。其中,过错具有独特含义:就故意而言,应指言论发表人对该言论的虚假性明知或对其真假完全的漠不关心;就过失而言,应指言论发表人未尽一般理性人的注意义务。行为人享有除真实性抗辩外的多种无过错抗辩。     

Arab Defamation Laws: A Comparative Analysis of Libel and Slander in the Middle East

Nations in the Arab world are known for their restrictions on press freedom, with public officials often using defamation laws to hinder good journalism. To promote reform, this article analyzes defamation laws of six Arab countries – Egypt, Jordan, Kuwait, Lebanon, Libya and the United Arab Emirates – and compares them to international norms. In areas with strong press protections, three characteristics related to defamation law were identified. First, defamation cases should be handled by civil lawsuits rather than police complaints, so journalists are not threatened with jail for their reporting. Second, the law must afford greater scrutiny for public figures than for private individuals so that the powerful cannot stifle public debate. Third, truth must be an absolute defense against allegations of defamation, so that people cannot protect an undeserving good reputation. The analysis reveals that defamation provisions in these countries are not in alignment with international norms.     

中国内地与香港媒体诽谤问题比较研究

诽谤就是损毁名誉,保护名誉不受侵害的法律在国际上通称为诽谤法,中国称为名誉权法。诽谤法最早诞生在英国。鸦片战争后,英国占领香港,并将英国法律移植到香港。1997年7月1日中国对香港恢复行使主权,实行“一国两制”,香港原有法律基本保持不变,在香港延续了一百多年的英国普通法传统得以继续保留。     

Defining Defamation: Community in the Age of the Internet

The ability to instantly communicate with a global audience has created numerous legal uncertainties as jurists struggle to adapt age-old jurisprudence to modern-day technologies —and defamation jurisprudence is no exception. The definition of a plaintiff's community is critical to his or her ability to succeed in a defamation lawsuit, often determining whether the plaintiff is a public figure or whether the plaintiff's reputation has been injured in his or her community. This article examines federal and state defamation jurisprudence to compare the factors courts have used to define community in both traditional print and broadcast cases with the factors used in more recent Internet defamation cases. It then suggests three possible rubrics courts could employ to more uniformly define community in Internet defamation cases.     

新媒体背景下的诽谤罪认定

新媒体作为现代传播体系中不可或缺的组成部分,在信息传播过程中具有信息传播的即时性与广泛性、信息平台的数字性与多样性、信息交流的自由性与持续性和信息受众的平等性与互动性等特点。因此,在新媒体的背景下,在认定诽谤罪中的散布行为时应考量“公然性”的条件;在认定损害结果时应着重传播手段的严重性;在认定犯罪主体时应根据不同的传播方式区别对待;在认定犯罪主观故意时应当包括间接故意,以此准确认定诽谤罪。     

Crimes,arrests, and elections: Predicting winners and losers

Political candidates are frequently identified as being either “law and order” advocates or “soft” on crime; however, the importance of actual arrest and crime levels on election outcomes has not been examined empirically. One particular set of candidates for whom arrest and crime rates might be expected to be predictive is publicly elected law enforcement officials. Using 1976 Florida County Sheriff election data, this article examines the capacity for discriminating between winning and losing incumbent sheriffs by using county arrest and crime data in association with socioeconomic and political information. The findings show that a significant discrimination is obtained (significant = 0.009, canonical correlation = 0.59, and 76 percent of the counties were correctly classified) and that crimes and arrests are significant factors in determining the outcome of sheriff elections. The results indicate that although traditional political factors, such as party affiliation and number of terms in office, and socioeconomic factors, such as income, density, and unemployment rates, do well in discriminating winning from losing candidates, a sheriff-election model must also incorporate crime and arrest information, particularly information on murder and rape.     

Freedom of Expression,Autonomy, and Defamation

Law and Philosophy -     

National Constitutional Courts in supranational litigation: A contextual analysis

The article examines the role of national constitutional courts in supranational litigation. It firstly illustrates their value and situates well‐known judicial doctrines affecting their jurisdiction in the context of the normative claims, policy agenda and institutional framework promoted by the European Union. Against this background, it gauges the potential of national constitutional courts in countering the process of intergovernmental and technocratic encroachment of national constitutional democracies characterising the most recent evolutionary stages of the European integration process. It is claimed that constitutional courts are in the position of reinforcing, resisting or correcting Union measures with a detrimental impact on national constitutional principles. After having identified in correction the approach more coherent with their constitutional mandate, the article highlights a disturbing paradox: in remaining faithful to their constitutional role, constitutional courts contribute to the sustainability of a comprehensive institutional setting corroding the idea of constitutional democracy on which they are premised.     

Organizational downsizing and age discrimination litigation: the influence of personnel practices and statistical evidence on litigation outcomes

The present study examined relationships between reduction-in-force (RIF) personnel practices, presentation of statistical evidence, and litigation outcomes. Policy capturing methods were utilized to analyze the components of 115 federal district court opinions involving age discrimination disparate treatment allegations and organizational downsizing. Univariate analyses revealed meaningful links between RIF personnel practices, use of statistical evidence, and judicial verdict. The defendant organization was awarded summary judgment in 73% of the claims included in the study. Judicial decisions in favor of the defendant organization were found to be significantly related to such variables as formal performance appraisal systems, termination decision review within the organization, methods of employee assessment and selection for termination, and the presence of a concrete layoff policy. The use of statistical evidence in ADEA disparate treatment litigation was investigated and found to be a potentially persuasive type of indirect evidence. Legal, personnel, and evidentiary ramifications are reviewed, and a framework of downsizing mechanics emphasizing legal defensibility is presented.     

商业诋毁侵害客体性质研究——以相关裁判文书为考察样本

关于商业诋毁侵害客体的性质,理论界以法人名誉权说、商誉权说、信用权说等进行概括陈述式的简易说理,而实务界中相关司法裁判也形式各异。对此问题的思考,可以分离出内部和外部两个观测视角。从内部视角看,具有高度经济利益性和适度人格依附性的商誉概念不仅可以作为商业诋毁最"适格"的客体承担者,而且还具有从一般利益走向类型化权利(即商誉权)的正当理由。从外部视角看,作为理论框架的"经济人格权"较传统民事人格权、商事人格权而言具有更为丰富的内涵,可为商誉权这一权利类型的生成提供解释空间。明确商业诋毁侵害客体之性质,既有利于宣示反不正当竞争法对商业诋毁的"规制主权",又有利于法院在司法裁判中的准确理解和统一适用。