On Infringement Of Personality Right By News

The thesis consists of three parts, as shown in the following: Chapter one: Freedom of Press and the occurrence of infringement of personality right by news Starting with the peculiarity and function of news and the right of Freedom of Press through researching related problems, the article aims to probe in essence the origin of infringement of personality right by news and defines it accordingly. First, the author introduces related problems about news and Freedom of Press. News is the report of the fact happened recently. Freedom of Press refers to the freedom of expressing the opinions and achievement of the ideological consciousness, political study, academic discussion, literary and artistic creation by news media, which involves the freedom of interviewing, disseminating, press, criticism and so on. Today, Freedom of Press is the fundamental freedom of citizens that regulated in any democratic country's constitution, is the reflection of the freedom of speech regulated in the constitution through the activity of news. Meanwhile, it is the method that the public enjoys the authority to know, and the term that public use the right to supervise. When this right is used improperly, tort by news will occur, then exert a tremendous negative influence. Both safeguarding Freedom of Press and avoiding of such a right abused are inevitable requirement raised by the existing law. Every country safeguards Freedom of Press and restricts it in the law at same time. Based on the researching the origin of tort by news, the author analyses different opinions about the definition of tort by news, then concludes its definition as follows: it is an action which shall bear the legal liability, in the case that the news media, its employees, other citizens participating in the action of news use the right of Freedom of Press by public media improperly, and infringe upon the lawful rights and interests of another citizen or legal person. Therefore, from the point of view of civil law, the definition of infringement of personality right by news is as follows: An action which shall bear the civil liability in the case that the news media, its employees and other citizens participating in the action of news use the right of Freedom of Press by public media improperly and infringe upon the personality right of another citizen or legal person. Correctly defining the infringement of personality right by news has an important significance about balancing the protection of Freedom of Press and personality right. Chapter two: The subjects and objects of infringement of personality right by news In this part, the author expounds the subjects and objects of infringement of personality right by news. Firstly the author sums up the types of obligatory subjects and rightful subjects of infringement of personality right by news regulated in current laws of our country. The actor who implements the act of tort and shall bear civil liability is the obligatory subjects, the victim whose personality right is infringed is rightful subjects. Obligatory subjects have four types: the media published the tortious works; the author of news; the source of information and the media reprinted or relay the tortious works. The author suggests that the provisions on the types of obligatory subjects in current laws have some defects, mainly including: the journalist who infringes other's right while fulfilling the duty hasn't been regarded as obligatory subjects; the editor hasn't been regarded as obligatory subjects; the provisions that the media reprinted or relayed the tortious works are regarded as obligatory subjects aren't completely reasonable. Rightful subjects have two types: the victims, including citizens, legal persons and other organizations; near relatives of the dead whose rights are infringed. Secondly, the author expounds the objects of infringement of personalityright by news. The objects are personality right certainly. There is no concept of personality right in current laws. Theoretically, personality right is the right inherently owned by civil subjects with the personality interest as the object, and the right which is needed to safeguard independent personality of subjects. For the first time, The personality right is specified in《Civil Law of the People's Republic of China(draft)》in law clearly. Personality right of citizens includes the rights such as life and health, personal name, portrait, reputation, honor, credit and privacy, etc. Personality right of legal persons includes the rights such as name, reputation, honor and credit, etc. From the view of relevant and current laws and the practice of judgment, the main types of objects of the personality right infringed by press are: the right of reputation, the right of portrait, the right of personal name, the right of privacy. Sometimes several kinds of rights will be infringed by a piece of works. Chapter three: Civil liability of infringement of personality right by news This part expounds the essentials, the reasons of demur and the methods of bearing civil liability of infringement of personality right by news. Firstly, the author introduces the general doctrine about civil liability's essentials of infringement of personality right by news. According with this doctrine, infringement of personality right by news is one of the civil general torts. It has four essentials of general torts: damaged fact, causality, illegal act and fault. The infringement of right of reputation is frequently occurred among infringement of personality right by news. And comparing to the right of personal name, portrait and privacy, it has more evident invisible feature. It is difficult to make sure the fact that is subject to harmful result and state. Therefore by researching on how to decide the damaged fact of the infringement of the right of reputation by news, the difficult question about deciding the damaged fact of infringement of personality right by news will be resolved. There are two standards to define the damaged fact on the infringement of the right of reputation by news, one is that the tortious worksis published, the other is "to cause certain affect"and "to cause damage". Illegal act refers to that the actor one violating the laws and regulations on protecting personality right of citizens and legal persons causes other's personality right being damaged, and the causality is existed between the tortious act and the damage. The fault of infringement of personality right by news includes intention and negligence. The intention refers that the news media and it's employee know or should know that the content disseminated must or may damaged the others rights, but wishes or allows such consequences to occur. Negligence refers that the news media or it's employee violates the special and attentive obligation to the others borne. At the same time, the views of author towards the component of civil liability of personality right infringed by press are: The rule of "Announcement"shall be adopted to the damaged fact recognized, and the fault by the work involving public figures shall be treated as directly intent . Secondly, author introduces the reasons of demur of infringement of personality right in by news provided by the existing laws, which including five circumstances as the follows: Basically accurate content; The content without insulting other's personality; Objective and Accurate report done based on the duty behavior of government organs; obtaining the permission of the party involved; objective and impartial comment; the objects which are unable to be recognized. Thirdly, the main methods of bearing civil liability are introduced. They are mainly: Cessation of infringements, rehabilitation of reputation, elimination of ill effects, extension of apology and compensation for losses. Regarding with the civil sanction of the tort by news, there is the view of rectification or answer being included, which are not supported by the author. Because such a measure is not provided in the General Principles of the Civil Law and it has not a feasibility in the judicial practice as well. However, the active rectification by new media shall be treated as one of the reason to be...