XXIV

1.Issuing improper comments may infringe upon others’ right of reputation.Under this kind of disputes, to determine whether infringement occurs, firstly, it is necessary to determine whether the comments have obvious directivity.Secondly, it is necessary to determine whether the content of the speech objectively caused harm to others.The aforementioned “directivity” judgment includes at least two dimensions.The first is the direction expressed by the written comments, which mainly judges whether the comments are “special” or “general”, “explicit” or “implicit”.The second is the orientation of the audience’s understanding after receiving the expression, which mainly determines whether the received speech information has understanding certainty or correspondence.

2.Improper reprinting of Internet users may also constitute a reputational infringement.When the court determines whether the reprinting network information by Internet users constitutes an infringement, the following factors will be considered: (1) whether the reprinted subject has undertaken the obligation of due diligence to its nature and scope of inf luence; (2) the degree of infringement on the personal rights of others;(3) the possibility of causing serious discrepancies with the content and misleading the public by substantial changes made to the information such as adding or modifying article titles.

Case 1: Around 18 : 28 on January 28, 2015, the entertainment channel operated by Company W published the article entitled “A Hundred Male Stars Have Been Suspected of Prostitute and Left the Case Record”.The author used letters to refer to characters in the article.As soon as this article was published, many people speculated that the letter H refers to the male star Huo.Two days later, J made a post on Weibo, and wrote the star names one by one for each of the letters in the article, among which,there was “H = Huo”.At the same time, several excerpted pictures of the original article were uploaded.Huo believed that Company W and J infringed upon his reputation rights jointly.((2017) Jing 01 Min Zhong No.6460)(https://www.daowen.com)

The court held that: To determine whether Company W infringed reputation rights, it should first determine whether the articles involved are clearly directed, so that the relevant public can associate H with Huo after reading the article.Secondly, it should be determined whether the articles involved caused an objective decline in Huo’s reputation.(1)Whether the company’s article pointed to Huo.Judging the directivity of written comments includes at least two dimensions: the first is the direction expressed by the written comments, which mainly judges whether the comments are “special” or “general”, “explicit” or “implicit”.The second is the orientation of the audience’s understanding after receiving the expression, which mainly determines whether the received speech information has understanding certainty or correspondence.If the article is“implicit”, it is necessary to further examine the personal characteristics mentioned in the comments, and judge whether these “implicated” personal characteristics are recognizable and significant enough to make a third person aware that the dissemination of the “implied signs” has a direct or high degree of correspondence with Huo, so that H can directly be associated with Huo.If both conditions are achieved, then it should be determined that the article points to Huo.In this case, it can be seen from the text in the case that the “one” actor’s unique expression and the corresponding facts of the statement indicate that the facts stated are not abstract and general descriptions, but specific facts about a particular actor.In addition, text in the case provided characteristic elements of specific individuals, such as the initial of the last name, place of origin, gender, occupational attributes, performing a number of costume dramas as the art feature and all the dramas being shot in a photography base.They are all “specifying” and “implicitly” referring to a specific individual, rather than ref lecting the general living conditions of the actors in the film and television base of Hengdian in an abstract way, as W Company argues, without specific directions.

(2) Whether the article constituted a defamation infringement of the right of reputation.The dissemination of improper comments is the main form of infringing on citizens’ right of reputation, and the impropriety of speech is mainly ref lected in the reprehensible nature of speech content.If disseminating harmful, false facts to a third person is not conducive to the reputation of a specific person or group of people, or making inappropriate comments against the reputation of a specific person or group of people based on false facts transmitted by others, sufficient to cause the social evaluation comments of that specific person or group of people to be worse, it can be regarded as defamation, and thus constitutes a violation of others’ right of reputation.In this case, the text in the case issued by Company W was a description of the improper sexual relationship between Huo and a female.As the publisher of the text in question, Company W could not prove the facts in the article it disseminated.Therefore, Company W should bear the consequences of not being able to provide evidence, and the content of the text involved in the case was therefore regarded as a false fact.Since this can be criticized by social morality and mainstream values, it is enough to damage the reputation of the parties and thus reduce social evaluation.Misinformation will have obvious defamatory significance.

(3) Whether J constituted joint infringement.The court considers the following factors to determine the fault and extent of network users’behavior when reprinting network information: ① due care undertaken by the person or group reprinting the information in accordance with its nature and scope of inf luence;② the apparent degree of infringement on the personal rights of others;③ the possibility of causing serious discrepancies with the content and misleading the public by substantial changes made to the information such as adding or modifying article titles.In this case, J, as a real-name authenticated online user with nearly 200,000 followers, has a large influence in the online community, and should assume a higher duty of attention in accordance with his identity and scope of inf luence.Secondly, the excerpts reproduced by J relate the fact that there is an improper relationship between others, which has a significant impact on personal reputation.Once the untruth spreads, it has obvious defamatory significance, and it should be spread more cautiously.Furthermore, J not only failed to fulfill the corresponding duty of attention when reprinting excerpts, but also further added explanatory notes to the reprinted information without factual basis, further expanding the spread of false facts.