The Defenses Of Media Tort Liability

With the continued advance of the reform and open policy, along with our further liberation of thought, people’s consciousness to express their opinion and supervise power enhanced a lot, therefore, media which is considered as social intermediate organization is increasingly welcomed by people. Media, as a connection of political state and civil society, plays a role to supervise legislation, judicial and administrative power, therefore also referred to as “the fourth power” by western society. However, the infinite expansion of the media rights also infringes the private rights quietly, especially the personality of private right. As the development of new media like Internet and We media, people’s will to express strengthens a lot, the phenomenon that the media abuse personality right become commonplace, even small-scale operations. The conflict between freedom of expression and personality right has become a real problem to be solved.How to solve the conflict between freedom of expression and personality right, more consistent view is to build a sound system of the defenses of media tort liability. However, in the aspect of legislation in our country, there is no such a media law to regulate the behavior of the media, relevant judicial interpretations of the justifications exist legislation technology coarse, facts and opinions regardless, fair comment, narrow applicable condition, poor operational problems; judge in the judicial practice in the understanding of the justifications have error, media win rate is low, there is the illegal phenomenon such as “the judge to make law ”.How to build the system of the defenses of media tort liability? First of all, two problems should be solved: one is how to define media’s lawful act and media infringement; the second is how to balance the relationship between freedom of the press and personality right. Because that our country’s law and judicial interpretation have no separate media tort, the behavior of media has no legal basis, it can only be indirectly determined from the angle of the justifications to judge whether its behavior is legal or not, the behavior which conforms to the rules of behavior is the legal justifications, otherwise, it is tort. How to balance the relationship between freedom of the press and personality right, which is the basis of the media tort liability defense system problem, and legislators and the judge should solve the problem first. Secondly, how to perfect the media tort liability defense: news and news commentary boundaries should be strictly distinguished, which is the boundary of that fact and opinion, only in this way can we truly distinguish authenticity defense and fair comment defense, and we should refine five justifications of applicable conditions and scope of application; we should refer from British and American national judicial precedent to make “public figures defense”standardized and institutionalized. Finally, on the question of how to apply the justifications, the judicial judge shall refer to typical cases at home and abroad to instruct trials with specific case and make abstract rules specific.