On The Infringement Of Personality Right In The Course Of Mass Communication

On the issue of personality infringement by mass communication,there isn't a conclusion as for the relationship between personality right and freedom of expression by now.Many scholars left their footprint in that area.Scholars majoring in public law and communication insist that the value of freedom of expression is higher than that of private rights from their standpoints.Scholars in civil law expressed their point of view that only civil regulations should be applied to tortious act based on the concept of civil law positivism by taking personality rights as their starting point.The former shew a tendency of being sensitive and emotional on discussing the application of the basic right of free speech to cases against media;while the latter shew a characteristic of being practical and somewhat.The idea that public rights precede private rights is not correct on one hand;on the other hand it doesn't keep pace with the time in circumstance of promotion human right and constitutional government.What is most important lies in the approach for basic rights to get into private sphere.Only through this approach can freedom of expression emerge in private sphere.In other words,only after the basic right,say,freedom of expression is turned into requirement of civil law itself,can it take influence over cases of personality rights disputes against mass media logically and convincingly.Under this circumstance,regulations applied by the court are no longer constitutional regulations on basic rights,but civil regulations.This paper consists of five parts.There are more than 160000 characters all together.The main contents of the paper are as follows:Part?.Discussion on the theoretical basis of the protection of personality in view of international human right theoryLegal personality covers a long way from inequality to equality.Personality system in ancient times aimed at dividing people into different classes.Personality in Roman Law was collection of three kinds of status:man in liberty,father and citizen.Status was included in personality."Person" in modern civil law refers to individual of liberty,equality and reasoning.Thoughts of human right,which characterizing in liberty and equality were admitted in private domain by French Civil Code.Specific personality draws more and more attention in contemporary times than in modern times.Certain respects of the subject,such as life,reputation and privacy etc.had been looked upon as inseparable from the subject for a long time from roman law on,and had been thought to be inherent of the subject,based on the division between subject and object,so they couldn't be object of right.This kind of thought doesn't change until modern times.Property law played an overwhelming role in modern civil law.The unbalanced state between personality right and property right in civil law brought about many disadvantages. As a result of humanity and promotion of human right movement,many countries do a lot to complete their laws concerning personality right on one hand,and they manage to protect all aspect of personality by means of judicial cases on the other hand.As a result,personality right achieves equal position to property.Contemporary civil law pay more attention to personality right than property right,which leads to the concept coming into being that personality right is superior.Many countries are carrying out their promises for protection of personality right in both public law and civil law pursuant to international human right conventions.Personality dignity is regarded as of the highest value in judicial cases in Germany.The prophesy that "Personality is getting over it's worship from property" has come true.The idea of human right promotes protection of personality right to a higher stage in contemporary society.The valuable exploration of The European Convention on Human Rights deserves our attention.Caring about personality right is in fact caring about human being.In this sense,freedom of personality and personal dignity avail over different places as well as specific social systems.There is a tension between right of private life and freedom of expression.Restriction on the performance of rights pursuant to law is necessary for sake of protection of other's right,freedom or social benefit.Part?.Discussion on relationship between personality right and freedom of expression:in view of relation between private right and public rightBoth constitutional law and administrative law fall within pubic law,the objects to be adjusted of which should be governmental agents rather than private individuals or groups. Private law consists of civil law,commercial law and international private law(foreign-related civil law) in modern times.Civil law lies in the center of private law.There are different opinions over the relationship between civil rights and constitutional rights,the main point argued of which falls in which on earth between civil right and constitutional right goes ahead of the other.The author suggests that civil law is the fundamental law of private law on one hand,while constitutional law is the fundamental law on the other hand.They take effect in their respective field.The spirit of private law lies in autonomy.The author suggests that private law should prevail to public law considering that individual himself is the best judge and guard on his own affairs.Furthermore,civil law contributes a lot for constitutional law in legal value and principle of law.Only for sake of important public interest,can public law intervene in private law.Both personality right and freedom of expression are basic rights.Personality right is civil right on one hand and constitutional right on the other.Freedom of expression belongs to basic right,but it doesn't belong to civil right.The allegation that constitutional rights precede civil rights is in want of proof.It depends on specific cases which should be in first consideration and which should stand back among them.The prevailing conventions on human rights give no words as to grade between different types of rights.Freedom of expression protected by constitutional law only bears indirect effect on relationship between private persons.The indirect-effect theory prevails in Germany.Theory concerning effect of basic rights on relationship between private ones is state act theory in the United States,which take the opinion that only governmental act is restricted by constitution, while individual act is banded by general law.Part?.Limitation on freedom of expression:in view of obligation to respecting personality rightIt is one of the restrictions on expression of human rights to protect other's rights.Right to reputation and right to privacy are two kinds of rights which set limits to mass media.There stands indirect protection mode of which Germany is the typical,and direct protection mode of which the United Kingdom is the typical in protection mode on reputation. Infringement on reputation is divided into two types:defamation and insult.Defamation by mass media arise from false report,the center of which is the correctness of content.Either willfulness or negligence can lead to civil defamation.Willfulness is necessary for insult. Infringement on reputation by media is confronted with the following challenge:firstly,the separation of public figures from common private individuals;secondly,how to find out who is the real tort feasor and whether the internet service provider is faulty.The contemporary development of communication technology is the main fright to right to privacy.Traditional meaning of privacy lies in the exclusion from intrusion in privacy. Privacy turns into the right of self-control in recent years from the right of being alone.There are two approaches to protection of privacy:the direct protection of which the United States is the typical and the indirect protection which The United Kingdom is the typical.Privacy swings between "right" and "interest" on civil law of different countries.It is treated as "quasi" right in our country."Illegality" can be excluded in the following circumstances:the expression is genuine; fair comment;no identification,etc.Part?.Research of foreign legislative and judicial attitudes concerning mass communication and personality rightAnalysis on relation between personality right and freedom of expression in Germany, the United States,Japan and the United Kingdom will be made in view of theory,legislation and judicature.Protection of personality is more and more open,which means invisible pressure upon mass media.Infringement of reputation or privacy doesn't fall into tortious act to absolute right.Balance of rights(eg.freedom of expression and privacy) between the two parties is necessary in order to make sure whether the act is "illegal".According to the court,personal dignity guaranteed by the Basic Law is at the top of constitutional values.The Constitutional Court announced definitely that only civil law can be applied to private cases through confirming that constitutional regulations bear just indirect effect upon private relations,say, only by way of vague clauses of civil law can they take influence over tort cases.State act theory prevails as for effect of constitutional basic rights on private relations in the United States.According to that theory,only governmental act is restricted by constitution. Private act is under jurisdiction of general law of centre government or states.Only when private individuals go into partnership with the government can private act turns into governmental act.The First Amendment of the Constitution set down freedom of expression. Right to privacy plays an important role amongst personality.There are clauses concerning protection of reputation in Civil Code of Japan,while privacy is introduced into the scope of civil protection through judicial cases.Freedom of expression was introduced in among basic rights,and on the same time the principle that personality should be respected was written in the post-war Constitution.Freedom of expression takes indirect effect on private relations through "public interest".The Supreme Court ruled that speeches related to public interest should not be looked upon as tortious act for want of illegality.Basic rights are not included in British constitution in the beginning.The Act on Human Rights wasn't promulgated until 1998.The defamation act 1996 applies in the United Kingdom for protection of reputation.The following conditions have to be satisfied for defamation:firstly,the speech is defamatory;secondly,the speech refers to the plaintiff; thirdly,the speech has been published.There is no definite distinguishment of so called "fundamental law" from "general law" because constitutional law has the same effect as general law,the latter of which is the main sauce of constitution.Freedom of expression is looked upon to be the same as other rights,eg.right of reputation in respect to their position.Part?.Review on legislation and judicial practice towards personality rights related to mass communicationPersonality dignity is guaranteed as one of the basic rights by Constitution as well as freedom of speech and press.The General Principle of Civil Law gives space of one section to "Personality rights",which provides right of reputation and other personality rights as well. Privacy is introduced in the scope of protection pursuant to respective juridical interpretations, which play a prominent role in personality protection claims against media.But there exist obvious disadvantages:The distinguishment of personality rights in sense of constitution from those in sense of civil law is still in want;No judgement of precedence over the application of freedom of expression to private relations has been set by judicial organs;No explicit diatinguishment of public speech from private speech is made,etc.This paper suggests that the following should be taken into consideration to complete legislation and juristic practice towards personality fights related to mass media in our country:firstly,setting a link of legislation and juristic practice towards personality rights of our country to international convention on human rights.But the application of provisions to basic human rights depends on vague clauses of civil law.Secondly,provisions to basic rights should not be applied directly to personality disputes caused by mass media.The indirect effect theory should be stuck to in our country.Only after basic right to free speech turned into certain value accepted by civil law,can it take effect in civil cases."Public interest" clause in civil law can act as an entrance for basic-right clauses to get into private relations. Thirdly,"General personality right" isn't worth our following.The German "general personality right" was "made" as a contingent measure,which bears obvious intention.The prevailing civil law of China is much better than the Civil Code of Germany promulgated in 19 century in respect of protection of personality right.Firstly,legal interest is within the scope of legislative and juristic protection in our country.Secondly,the demand for newly generated interest with the development of the society is satisfied through construing the vague clauses in civil law.Thirdly,the juristic interpretation,which is typical in China, constitute a connection between social life and legislation.Fourthly,distinguishing political speech and other public speech from ordinary speech and commercial speech.Finally, distinguishing public figure from private individual.The main innovation of this paper can be summarized as follows:firstly,it is the first time in our country that the author made his study systematically on the basis of transubject from civil law to constitutional law on infringement of personality by mass media;Secondly, this paper makes further arguments draws a conclusion that constitutional right doesn't precede private right;Thirdly,it is the first time in our country that the author apply the indirect-effect theory of basic right as for private relations to cases caused by mass media; Fourthly,it is the first time in China that the paper put forth explicitly that the basic right of free speech should not take influence on private relations until it is turned into the value accepted by civil law;Fifthly,it is the first time in China that the author suggests explicitly that public-interest clause in civil law is the best approach for freedom of expression to get into private relations.