Research On The Legal Regulation Of Commercial Defamation Under The Network Environment

With the rapid development of Internet economy in the 21 st century,the network has become the engine of national economic development.Not only does it change consuming behavior and give birth to new consumption patterns,it also breaks the original economic pattern.The emergence of new network enterprises has triggered the network wave of traditional enterprises.The development of network economy tempts enterprises to expand the field of competition from the traditional offline field to the online Internet field,but no matter where the field of competition extends,goodwill is crucial for enterprises.Good corporate image can help enterprises stand out from many competitors and attract limited consumers’ attention to their own products or services.However,shopping malls are like battlefields.In order to obtain rich network economic dividends,many enterprises " take an unusual path ".Depend on the development of network technology,commercial slander disputes spread from offline to online,and the number of cases shows a surge trend.At the same time,defamation in the Internet environment is complex and diverse,which brings challenges to the identification of commercial calumny.It is not only difficult to effectively regulate commercial defamation disputes,but also tough to effectively provide protection for the infringed.The " Anti-Unfair Competition Law " has went through many changes and added the Internet unfair competition clause,but it only slightly modifies the commercial slander clause and replaces individual words,which lags behind the complex commercial slander situation and cannot form effective regulations on the new commercial slander.In civil judicial practice,because of lacking juristic guidance on the identification and responsibility of commercial defamation disputes in relevant legal provisions,it creates a great space for the discretion of judges.Similar cases have the phenomenon of different judgments in the same case.Through the analysis and investigation of commercial defamation cases for the past few years,it is easy to see that commercial defamation appears in new forms of expression such as improper evaluation on the trading platform,defamation by using the software scoring mechanism,and using the network navy to guide public opinion.However,there are many shortages in the judicial practice in the commercial defamation actions,the relief of damage results,and the litigation process of commercial defamation disputes,including the lack of systematic understanding of competition relations There are different ways to identify subjective fault,there are disputes over the application of responsibility bearing mode,the application of discretionary factors is not clear,and the burden of proof of the infringed is too heavy.On the ground of the available literature,this paper dissects the above issues and comes up with the following suggestions: we should expand the interpretation of the competition relation,and even render up the identification of this element in specific cases;Insist on deriving subjective fault from objective behavior,and on the basis of analyzing the behavior mode and behavior subject,this paper comes to the conclusion that the damage caused by negligence can be traced;The relief of damage results should be based on the principle of comprehensive compensation,and the scope of compensation should cover the loss of overall profits,the expenses required to eliminate the impact and the loss of goodwill impairment;At the same time,the judge should give a detailed description of the selected discretionary factors to clarify the significance of each factor.As for the party’s request for apology,the judge should adopt a unified attitude and explain in detail that the goodwill damage cannot be applied to apology.Additionally,it is also essential to build up the responsibility assignment of commercial defamation litigation under the network environment.The inversion of the burden of proof can be implemented in proving whether the operator has fulfilled the duty of care and the interests of the infringer,so as to alleviate the burden of proof of the victim.Improve the electronic evidence collection system and encourage the infringed to seek relief through legal channels.Through the in-depth discussion on the legal regulation of commercial defamation under the network environment,we can deepen the reasonable authority of China’s judicial trial and maintain the continuous operation of a fair and orderly market competition order.