Research On The Relationship Between Commercial Defamation And Freedom Of Speech

Protecting the freedom of speech is designed to protect the will of individual,that is,to express his views freely and to accept the right of absorbing others' opinions.Regulating business defamation is designed to protect the goodwill of the business from the adverse effects of others' speech.Reasons which lead to the conflict between the two parties are the ambiguity of the boundaries,overlapping,different value orientations and so on.This conflict is manifested by the obligee who overly assert freedom of speech leading to infringement of the goodwill of the operator or the obligee who overly assert the right of goodwill leading to restriction of the freedom of speech of others.The principle,non-litigating nature and other characteristics of our country's constitutional rights lead to the result that freedom of speech cannot be better protected.The judge,who favored regulation of commercial defamation,often neglected the fundamental right to freedom of speech in the process of hearing the case,so that the interests of the two conflict rights cannot be balanced.This paper firstly describes the basic concept of commercial defamation,focusing on the subject of commercial defamation which is highly controversial.In my opinion,the subject element of commercial defamation should be added by the business operators,the news media,consumers and industry associations,which constitutes the subject element of commercial defamation.Secondly,it elaborates the legal protection of freedom of speech,the necessity of protection and the legal person freedom of speech.Then,according to the basic theory,the article combines with specific cases to analyze the specific performance and reasons of the conflict between the two rights.Finally,starting from the current situation of China,this part discusses the balance method of two conflicting rights above.Legislation should confirm the concept of goodwill and freedom of speech,add freedom of speech into the department law,prescribe corresponding principles to resolve the conflict between the two rights,release more replies and judicial interpretation about the conflict by Supreme People's Court in the existing framework.Judicial processes can apply to “public interest principle”,“right level principle” and “balance of interests principle”.Measure the legal interest in the specific case when it occurs conflict between commercial defamation and freedom of speech.Different subjects with violations should carried different duties of attention in diversified cases.