News Tort Liability Study

The infringement act of press has been the hot issue in law circle recently, its core lies in its liability for tort, which has not been specifically legislated in China and only can be seen among different branch laws and judicial interpretations, so it is imperfect. In the process of drafting the civil law, there are different opinions on whether to define the infringement act of press as a classification of torts, which leads to different handling results on the cases about the infringement act of press in actual practice. In order to perfect Chinese legislation on the infringement act of press, the paper makes a tentative investigation on the basic problems of its liability for tort combined with foreign legislation and Chinese judicature practice.The whole paper can be divided into five parts. The first part mainly discusses the general theories on the infringement act of press. In the beginning, by analyzing the characteristics of the infringement act of press, it defines the infringement act of press as the act the press unit or journalists impair adverse party's personal right with their news writings. Then it reviews the origin and development of the infringement act of press. Next it attaches great importance to the value clashes in the infringement act of press. There exists the clash between news freedom and personal right in the infringement act of press, so the benefits should be compared to rearrange the order and its liability for tort be constituted based on it. At last it analyzes the reasons and contents of the limitations on personal rights of public figures. The second part deals with the composition requisites of the infringement act of press, which is different from the general infringement act. There are different kinds of infringement act of press, such as news libel, news insult, privacy infringement, etc. As we know news fact is different from subjective truth and legal truth, so the criteria and the burden of persuasion to identify news fact should be researched, we should tell public figure from common figure, public affair from private affair. As for the damage of the infringement act of press, it has its special characteristics. Especially when it comes to public figures, the principle "not accused for petty crime" should be embodied. Thesubjective desire to constitute the infringement act of press includes intentional act and negligent act, with the exception of petty negligence. In the subjective aspect, the formation of the press tort should regard "actual malice" as the criterion of confirming the subjective fault; on the issue of the causation in the press tort, the rule of the correspondence of causal relationship should be applied in principle. The third part of this thesis is concerning the liability of the tort by means of media. on the issue of the methods of bearing the tort liability, we must equally use property liability and non-property liability, in the meantime, we should legitimately define the responsibility for compensating spiritual damage; on the issue of the subjects who have to burden the tort liability, including writers and media, it depends on the choosing of the party concerned. But there is something special on the occasion of the press infringements happening on Internet. Under these circumstances, it is likely that the network users, the network service providers or the network content providers should take the unbeneficial consequence. As for the fourth part of this thesis, we will discuss something about the counterarguments against the claim of burdening the tort liability of the press, including the sound supervision by media, the public advantages, the curiosity of general public, the privilege of the press, the permission expressed by those directly involved, the true content, the public places and so on. Among these counterarguments, the public advantages and the curiosity of general public also sub-include the public persons and the fair comment. The fifth part puts forward the suggestion on legislation. The writer proposes that the infringement act of press should be stipulated independently in the civil law. Its main content includes establishing the basic concepts concerning the infringement, differentiating the public figure from the common figure to form the independent composition requisites of the infringement, perfecting the remedy of the infringement and defining the counterarguments claim of the infringement act of press.Through the thorough analysis on several issues about the press tort liability above, this thesis proposes that we should tell the public figure from common figure and treat these two people categories differently based on the consideration about thecontrast of diverse interests, and we should stipulate the distinctive regulations about the tort liability of the press, so that we could coordinate the value clash between the freedom of the press and the right to personal existence and freedom.