| At present,the academic world generally studies reputation infringement in the frame of conflict of rights,and claimed that it is the primary function of the system of reputation infringement that to balance the freedom of expression and protection of right of reputation,and many scholars highlights the particularity of reputation infringement on that basis,and assert introduction of the Anglo-American defense system of defamation law,especially the Theory of Public Figure of America into our country in order to surmount the disadvantages against freedom of expression in our present law.This paper supports that the components of fault and fault liability principle in traditional tort law of continental legal system are the balance mechanisms between behavior freedom and legal rights protection,and the disadvantages in our present system of reputation infringement are not due to the absence of “arms of defense”of defendants,but to virtualization of components of fault and contortion of doctrines of liability fixation.To respond to above academic proposals,this paper has selected the defamation law of UK,especially qualified privilege which plays a central role in the historical revolution of doctrines of liability fixation in the defamation law of UK to be the object of study,as well as the revolution of doctrines of liability fixation in defamation law of some countries of common law,such as America,Canada,Austria and Taiwan in our country,and the study will be concentrated on the two problems of what the fault in reputation infringement is,and what effect will “public”elements have on fault.This paper contains six chapters except the introduction.The introduction contains contents of the following three aspects:Firstly, to summarize all kinds of opinions about the phenomenon of conflicts of rights and their settlements in the academic world,and point out that as far as the phenomenon of conflicts of rights in the field of tort law, the components of fault and fault liability principles are the primary balance mechanisms between behavior freedom and legal rights protection,and then interpret relative articles in present law of reputation infringement in our country on that basis and put forward that virtualization of components of fault and contortion of doctrines of liability fixation are the main obstructions which led to imbalance between freedom of expression and protection of right of reputation.Secondly,to summarize the chief monographs and academic treatises about defamation law and tort law of system of common law in both our country and western countries,and to induce the present conditions of research about this problem in the academic world from them.Thirdly,to interpret the innovations in this paper from the perspectives of topic selection and research methods.Chapter One:The fundamental theories of the defamation law of UK.First of all, summarize the unique legal culture of UK.Starting from classical writings of ideologists such as Locke,Bentham,Mill,Hooke and Hume,this paper will induce the tradition of liberalism,conservatism and empiricism which play central roles in legal culture of UK.Liberalism among them established the orientation of revolution of defamation law of UK,conservatism determined the selection of the route of revolution of defamation law of UK,and empiricism guided the process of formation of common law.Then,introduce reputation and freedom of expression in legal culture of UK.Legal culture of UK always attaches much importance to protection of reputation,and claims that value of reputation should cover human and society these two dimensions.The tradition of defending reputation by duels which has ever been existing for a long time could provide an optimal annotation for the reason of London's being called as “City of Defamation”.Freedom of expression was established in laws finally.After long-term complex struggles,the fights against publication censorship and criminal defamation promoted the broad spread of ideas of freedom and democracy effectively,and provided strong ideological weapons for bourgeois revolution.At last,summarize the skeleton of formation of defamation law of UK.After Norman Conquest,king of UK strengthened controls of district courts,set up Royal Courts and Star Chambers,and maintained Ecclesiastical Courts which had been existing for a long time.A structure in which civil rules was mingled with criminal ones,and different systems of courts performed their own functions had been formed.Systems of defamation in common law had not been established until middle period of the seventeenth century when all kinds of defamation cases should be tried by common courts uniformly.Chapter Two: A general picture of defamation law of UK. Firstly,there are four components of defamation,which are defamatory speeches,publication of defamatory speeches, identifiability of the victim, and sufferings of the plaintiff.Secondly, the defense system of defamation contains authenticity defense,honest opinions defense,absolute privilege and qualified privilege these four,among which qualified privilege features defamation law in common law most properly.It is qualified privilege that is called as”the right to make mistakes”,has the most intimate relation with the idea of freedom of expression,and becomes the original version of revolution in doctrines of liability fixation of defamation law in common law countries.Chapter Three:Reynolds privilege and of public interest defense.Firstly,introduce the case of Reynolds and Reynolds privilege which have symbolic significance in the revolutionary history of doctrines of liability fixation in defamation Law of UK.Starting from the fundamental details and process of hearing of that case,this chapter will emphatically introduce the process of discussion about Reynolds privilege and the standard of responsible reports by Lord Nicholls Birkenhead,and induce two conditions for application of Reynolds privilege,namely that the disputed statement is about public interests and that the behavior of reporting is up to the standard of “responsible reports”.Secondly,after an introduction of the case of Reynolds,it is the successive opinions of House of Lords and Supreme Court that public welfare of disputed discussion should be in a more outstanding position.Thirdly,the public interest defense in the Defamation Law of 2013 of UK is introduced here.The Defamation Law of 2013 has abolished Reynolds privilege in plain language,while add the public interest defense to it.The main differences between them are the cognitive objects of defendants.The former limited.the cognitive objects of defendants to the defendant's cognition about the false of statements,while the latter limited the cognitive objects of defendants to the defendant's cognition about the public interests relative to the disputed statements.Chapter Four: The judgment of fault element and revolution of doctrines of liability fixation in defamation law of UK.Firstly, the doctrines of liability fixation in traditional defamation law of UK.Authenticity defense occupies the key status in traditional system of defamation law of UK, and the defendant should undertake the burden of proof to prove authenticity of the statements. Traditional defamation law adopted strict liability principles without consideration about whether the defendant was in fault relative to the formation of misrepresentations. Secondly, compare the notion of fault in tort law of UK with maliciousness in defamation law of UK. Maliciousness includes not only the defendant's subjective state about others' interests, but also his unjust motivation, while fault is limited merely to the defendant's subjective state. Thirdly, discuss the trend of convergence between fault and maliciousness from three perspectives of their connotations,standards of behaviors and standard of violation.Both of the two legal systems adopt objective methods of judgment of fault,and establish specific duties of care and behavior standards for people in specific vocations at the same time.There has being long tradition of trade self-discipline in media industry of UK,and the standard of “responsible reports”put forward by Lord Nicholls Birkenhead was set up to regulate behaviors of journalists.Public interest defense in Defamation Law of 2013 was similar to that,and the violation of the behavior standard meant that the defendant was in fault,and based on which defamation law of UK classified statements disputed into two categories,namely,statements relative to public interests and statements were not.Reynolds privilege,or public interest defense and fault principle could be applied to the former but couldn't to the latter,which would continually adopt strict liability principle in traditional defamation law of UK.Chapter Five:Observation in perspective of comparative law of the binary revolution in doctrines of liability fixation of defamation law of UK.America,Canada,Austria are selected to be objects of research here,and the four legislative models could be classified into three camps:the Theory of Public Figure of America,Responsible Communication Defense of Canada and Lange Defense of Austria..Before its independence,America had appeared to deviate from defamation law of UK obviously,and this appearance became more significant after its independence.Present defamation law of America is characterized by the facts that different degrees of fault would be applied according to identities of the prosecutors and natures of statements disputed,while fault principle is being adopted comprehensively.The Rule of True Malice should be applied if the prosecutor is a public figure,and when statements disputed are relative to public interests,standards of fault set by defamation law in different states include “true malice”,culpable negligence and negligence.Both Canada and America oppose to defense of freedom of expression in defamation lawsuits,and refuse to adopt the radical ways of revolution of America.Responsible Communication Defense of Canada and Lange Defense of Austria are much the same as Reynolds Privilege of America on the application rules.Traditional system of reputation infringement in Taiwan also adopted strict liability principle in disguised form.Since the year of 2003,the Supreme Court had interpreted the annotation of fault in a series of legal precedents afresh,which was related to the defendant's subject recognition of his fault.The defendant merely needs to make sure that he has just reasons to trust the statements,and judgments of fault have no longer relations to authenticity of disputed statements.Chapter Six:The improvement of doctrines of liability fixation in our country's tort law about reputation.First of all,this chapter proposals that the main disadvantages in our country's present system of reputation infringement are virtualization of components of fault and contortion of doctrines of liability fixation from the perspectives of interpreting of relative articles in present laws and analyzing of classical cases,and the imbalance between behavior freedom and protection of legal rights caused by above facts are the fundamental reasons of why our country's present systems of reputation infringement go against freedom of expression.Second,through drawing lessons from common law countries and Taiwan,this chapter claims that fault in reputation infringement is pointed to defendants' subjective recognition of false of statements disputed,and whether the defendant is in fault has no relations with authenticity of statements.It is also claimed here that all plea instances in defamation law of common law could be covered by the connotation of fault,so there is no need for our country to transplant systems of defense in defamation law of common law.Third,it is claimed here that the element of publicity in statements disputed must be the basis of application of different doctrines of liability fixation and degrees of fault,however,the Theory of Public Figure based on identity of the prosecutor has violated the equality of personality,and a portion of cases in our country which adopted the Theory of Public Figure not only understood and applied this theory improperly,but also deviated form the thought of typal tendency,so this paper opposes the proposal of transplanting the Theory of Public Figure,and suppose that we should draw lessons from judicial experience of UK,Canada and Austria,and select doctrines of liability fixation according to nature of the statements disputed.Since reputation infringement in our country has being adopting fault principle,and considering legal stability,it will be proper to apply different degrees of fault according to nature of the statements disputed,and the optimal choices are culpable negligence and abstract minor negligence. |
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