网络诽谤的争议问题探究

司法解释关于明知是捏造的损害他人名誉的事实,在信息网络上散布,情节恶劣的,以‘捏造事实诽谤他人’论的规定,属于平义解释而非类推解释。作为诽谤罪对象的他人并不排斥公众人物,但根据我国宪法的规定,刑法必须适当降低对公众人物名誉的保护规格。司法解释关于网络诽谤情节严重规定的缺陷,不在于客观归罪与扩大处罚范围,而在于不当缩小了网络诽谤的处罚范围。告诉的才处理并不意味着必须由被害人自诉,而是指不得违反被害人的意愿进入刑事诉讼程序。     

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.     

Re-Defining Defamation: Psychological Sense of Community in the Age of the Internet

In the era of traditional media, courts typically relied upon geographic constraints, including where a plaintiff lived or worked, to determine the appropriate community in defamation cases. The rise of the Internet has dramatically changed society – easily and immediately linking users across geography while allowing the rapid spread of information through a variety of channels that pose a challenge to the traditional media model centered around editorial judgment and professional ethics. Thanks in part to its global reach, the Internet has allowed users to engage in both business and social relationships around the world. Because of this, a person's need for a good reputation can no longer be confined solely to location. As a result, this article argues that courts must begin to evaluate other factors when determining relevant community in online defamation cases, positing that courts should utilize factors associated with psychological sense of community theory.     

Freedom of Expression,Autonomy, and Defamation

Law and Philosophy -     

论互联网时代诽谤罪的公诉范围

我国刑法对诽谤罪采取自诉为主、公诉为补充的双轨制模式。由于刑法但书“严重危害社会秩序和国家利益”的公诉依据具有模糊性,同时司法解释本身缺乏解释力和可操作性,存在同义解释、近义解释等问题,加剧了公诉诽谤罪和其他罪名之间的冲突和竞合,特别是当被害人为地方领导干部时,诽谤罪的公诉权在实务中存在被滥用风险,部分限制公诉权的要件在实务中被淡化甚至忽略。从相对狭义的角度看,“严重危害社会秩序和国家利益”只有在行为人对侵犯个体法益具备主观故意,但对侵犯社会法益或国家法益不具备主观故意(或无法证明其具备故意)的情形下,才有其独特的法律适用价值并不与刑法其他罪名相冲突。为妥善处理和平衡诽谤犯罪中惩治犯罪和保障人权的关系,适应互联网时代的内外部变化,建议通过修改我国刑法,将诽谤罪区分为情节不严重、情节严重、情节特别严重的三种形态,为充分保障宪法权利,情节不严重的不作为犯罪处罚;为充分保障自诉权,情节严重的为绝对告诉乃论;为依法惩治犯罪,对符合特定形式要件和实质要件,情节特别严重的诽谤犯罪可以依法公诉,以维护网络信息秩序。     

网络诽谤犯罪立案管辖之困境与价值抉择

本文对网络诽谤犯罪案件载体与形式进行了重新评估,并解释了刑法扩张的合理性,试图从诽谤犯罪规制的价值选择出发,考察域外法制,平衡社会公益与公民权利,平衡言论自由与公民人格尊严,提出修正现行法律规范的建议,或加强公权力救济、强化现行法律框架下的侦查权合理运行。     

Mapping Defamation Defences

The general neglect of tort defences is most significant in defamation actions. This paper attempts to reduce to a few guiding principles the numerous, and apparently unrelated, doctrines recognised as defences by the law of defamation. Defining the cause of action as an injury to the claimant's reputation, it argues that they fall into three classes: (i) defences which exclude unlawfulness because the injury was inflicted in pursuance of a right or liberty of the defendant; (ii) defences which exclude blameworthiness because the defendant was not at fault for causing the injury; (iii) defences which relieve the defendant of liability despite the injury being both non iure and negligent: this group, not being underpinned by recognised principles, deserves particular scrutiny. The rule of repetition should be qualified by recognition of a defence of ‘warranted republication’; the remainder should be abolished, being an anachronistic hangover from the old requirement of malice.     

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。     

Tilting at Windmills: the Defamation Act 2013

In April 2013, the Defamation Act was passed, the culmination of a four‐year political campaign. The legislation is intended to ameliorate the ‘chilling effect’ of libel law on scientists, online commentators, NGOs, and others. This paper considers the main changes wrought: reform of the main common law defences, changes relevant to scientific discourse and online speech, and revisions that will impact on process. It identifies areas where there will be problems of interpretation for courts, and suggests that the Act will fail to provide clarity for publishers keen to assess the legality of their actions. The paper also contends that more attention should have been paid to remedies (in particular, the desirability of discursive remedies such as the right of reply). The question is posed whether the Act addresses the core problem with libel law: the juridification and over‐complication of public sphere disputes, and the attendant cost of embroilment in legal proceedings.     

What Conversation? Free Speech and Defamation Law

Common rationales for free speech are offered in legal writing across many countries, even though their laws regulating speech differ markedly. This article suggests another way of thinking about speech, based on particular qualities of speech which help to explain why public speech – or at least public speech perceived as valuable for cultural, political or other purposes – is frequently thought of as a conversation. That often appears as the ideal, but a conversational conception can limit what is seen to be at stake in the control of speech. Instead of imagining public speech as open exchange that leads to agreement, here a slightly different vision is offered based more on the articulation of incommensurable world views and dissent. Implications of such an approach are considered for scholarly understanding, particularly of defamation law – an area of law commonly seen as important for the range and style of public speech.     

试论诽谤罪的立法完善

随着经济的增长,社会的发展,人民关注社会热点并加以评议的热情高涨,言论自由难以避免地出现言论过激现象,有的言论则影响了个别领导的＂政绩＂。诽谤罪由于立法的缺陷,成为公权介入的借口,从而激化了社会矛盾。因此,完善诽谤罪的立法,有利于保障公民言论自由权行使,推进我国民主法治进程。     

Some Cases from the Defamation Jurisdiction of the Archdeaconry of Richmond

Unusually, the archdeaconry of Richmond had two consistory courts, one in Chester and one in Richmond. This may well be the first study to be based upon the Richmond records. The mid-sixteenth century ‘explosion’ in the ecclesiastical defamation workload which other commentators have identified was being felt later, possibly by as much as a century, in Richmond than anywhere else in the country. The Richmond records provide the first firm evidence that the ecclesiastical courts were prepared to countenance defamation actions based upon the wrongful imputation of murder. Allegations of sexual irregularity were by far the most common subject of ecclesiastical defamation actions. Women were most likely to complain about allegations concerning their constancy; men for those touching upon their probity.     

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.     

英美诽谤法的特殊抗辩事由研究

英美诽谤法为实现保护言论自由和尊重个人名誉的平衡,设计了诸多精细的特殊抗辩事由,包括以真实性作为完全抗辩的依据;涉及公共利益的、基于事实的、真诚的公允评论;法律授予特殊场合的特权抗辩(绝对特权和受约制特权)及制定法规定的严格责任抗辩事由.这些抗辩事由使英美法诽谤法实现了法益平衡的目的.     

Winners and losers and Why: A Study of Defamation litigation

This article summarizes the results of a study of 534 reported defamation cases decided over a period beginning in 1976 and ending just before the Hutchinson and Wolston decisions of mid-1979. A major aspect of the study was the comparison of media and nonmedia defamation cases, which appear quite different. Each case was studied to identify, among other things, the plaintiff and the defendant, the statement that provoked the suit, the context of that statement, the role of state and federal law in resolving the case, and the procedural stages at which each case was resolved. A follow-up study to identify changes since Hutchinson and Wolston is in progress.     

名誉权与言论自由:宣科案中的是非与轻重

本文围绕不久前审结的一场名誉权诉讼展开讨论。文章首先分析了该案涉及的事实和法律问题;然后揭示并讨论了该案中被遮蔽和忽略的具有重要意义的宪法问题;最后则对法院审理名誉权诉讼时应当遵循的原则作了进一步的讨论。本文的基本观点是名誉权诉讼包含了公民人格尊严和言论自由两种基本权利之间的紧张关系。处理名誉权诉讼的正确办法不是先验地确定何种权利当然地具有优先性,而是在民主宪政的一般原则之下,根据每一案件的具体情况,判断什么是最值得保护的价值,并在此基础上平衡各种不同利益。