| Under the market competition environment,commercial defamation disputes have a long history.In recent years,as the development model of "Internet +" continues to ferment in various fields,the situation of commercial defamation has become more diverse,and the constituent elements have become more complicated.The resulting differences,in the determination of the nature of the conduct in judicial trials,not only do not benefit the prediction and guidance of market entities’ operating behavior,but also affect the realization of the credibility of the judiciary.This report found that through the investigation of laws and regulations,the provisions on commercial defamation in the legal provisions are limited to the definition of principle,but lack specific guidance on the behavior and content.In judicial practice,commercial defamation is mainly carried out using the Internet,which shows the characteristics of technicality and concealment.The infringement situations are more diverse and complex.Therefore,this report classifies commercial defamation into three types: real-name dissemination,anonymous comment,and malicious interception.The first type mainly depends on the spread of the Internet,while the latter two mainly rely on technical and hidden features.Subsequently,in order to explore the differences in the constituent elements and responsibility of different types of online commercial defamation,this report conducted a case study and a summary of domestic and foreign opinions.All the judgment documents cited in this report are sourced from the China Judgment Documents Network,and searched for “commercial defamation” as the key word and downloaded a total of more than 400 judgment documents.Among them,183 detailed analyses were selected(after the first,second and retrial procedures is counted as 1,refer to the appendix for the detailed analysis of judgment documents.)Among them,there were 168 commercial defamation cases using the Internet as a tool,accounting for the vast majority.Courts in various regions have shown the trend of expanding the scope of the competitive relationship,while there are differences or even very different approaches to the subjective and objective determination of the defamation behavior and the method of responsibility,which shows some problems,like that the boundaries of the subject of the competitive relationship are blurred,the identification of the defamation information elements is unclear,and lack of standards for goodwill damage judgment,etc.Finally,according to the difficulties and disputes in judicial determination found during the investigation,this report points out that the court should standardize the identification process and terminology when trying such cases,and confirm each one in accordance with the "behavior elements,information authenticity,subject qualification,responsibility ".Standardize the review process.This report believes that online commercial defamation should adhere to the "single behavior model + subject’s fault" principle,that is,different fault principles apply to different actors,and the statements made by competitors should have a higher duty of prudence.In the case of meeting the requirements of fault,any act of fabrication or communication alone can be regarded as infringement.In terms of responsibility,whether or not to use "apologizing " as a method of responsibility for commercial defamation requires analysis based on the specific case and abandoning the "one size fits all" pattern.In addition,the determination of the amount of compensation should take into account the damage that the behavior has caused and may cause,and appropriately introduce punitive compensation.At the legal level,it is necessary to improve the relevant provisions of administrative and criminal responsibilities.For complex illegal subjects,such as unit crimes,cyber naval forces,etc.,different departmental laws are applied to regulate them,and different measures are used to more effectively combat online commercial defamation. |
