| Since last century, with the appearance of broadcast and television and development of press, various kinds of medias spread information widely and rapidly. However, there must be some inauthentic and subjective reports which may have injured human dignity, such as right of reputation and privacy. Lawsuits of infringing the right of reputation are the most representative. Due to the ambiguous recognition of the relationship between press freedom and reputation protection in China, and legislative deficiency of press tort law, it's difficult to try such cases in judicial practice. In order to contribute to the press tort legislation in China, the author explains some detailed problems about revising the press tort law in China with theories and legislation experience of other countries, such as establishing strict constitutive requirements of press tort, prescribed plea instance, the liability subject and methods of bearing liability in press tort, and etc, therefore to balance the relationship between press freedom and reputation protection.The article is composed of five parts.The first part introduces the legal system of protecting both press freedom and right of reputation of other countries, and analyzes why we should balance the benefits of the above two. From the status quo of the deficient legal protection system of the above two in China, the author educes how to revise the relative laws and regulations, that is the other four parts of this article.The second part analyzes four constitutive requirements of infringement of right of reputation: (1) unlawful behavior of infringing the right of reputation; (2) facts of damage of specific person; (3) causality between press tort behavior and facts of damage; (4) subject mistakes of tort behavior. To explain different characters between the four requirements and general requirements of tort, the author want to balance the relationship between press freedom and reputation protection.The third part mainly analyzes the plea instance of press tort. Because of the particularity of press tort, the plea instance of it differs much from general civil tort behavior. With relative legislation and cases of other countries, the author expounds five plea instance: truthful reports, fair comment, patent right to news report, agreement of the sufferer and public figure.The forth part analyzes the liable body and manners of undertaking in press tort. Since the character of press broadcasting is the cooperative behavior of several people, different people functions differently in every link. Therefore, the author analyzes every link in press tort to demarcate liability subject accurately. In addition, the author analyzes four methods of bearing liability: cessation of infringements, elimination of ill effects and rehabilitation of reputation, extension of apology and compensation for losses.In the last part, the author analyzes three points which judges should pay attention to when trying press tort cases: (1) to allot burden of proof reasonably. The author believes that in press tort lawsuits, not the accused party but the plaintiff should bear the burden of producing evidence to prove the inauthenticity of news reports, just like the rule of general tort cases. (2) the privilege of reject attesting in court of journalist. Facing the conflicts between judicial interest and press freedom, the author thinks that we can solve this problem with endowing journalist the privilege of not exposing the provider of information in court. (3) rule of punitive compensation. Since at present the standard of compensation for spiritual damage is not identical, and in some place it is unreasonably low, the author believes that it' s necessary to enact the rule of punitive compensation to protect the interest of sufferer. |
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