Legal Recognition Under The Network Environment Of Business Defamation

Business discrediting characterized by destruction of goodwill is a common act of unfair competition and does serious harm to the market order. Especially in the network economy era, the development of Internet technology provides business discrediting with a convenient platform on which information can spread quickly and cross-regionally. Although the “Anti-Unfair Competition Law” promulgated in 1993 has provisions of business discrediting, traditional understanding of elements of the acts has been insufficient to solve new cases in the Internet world. Because of anonymity and invisibility of network behaviors and that rules about jurisdiction of the court and electronic evidence are not perfect, to identify accurately whether the alleged conduct constitutes business discrediting still faces many difficulties.The author has conducted a comprehensive study on the legislative confirmation of business discrediting in the network environment and made detail analysis of legislative limitations and judicial predicaments on the basis of typical cases and existing literature. And the author has tried to make proposals from two aspects of Competition Law and Code of Civil Procedure in order to provide a reference for the solution of Internet business defamation disputes.This paper is divided into four parts:The first part is to introduce business discrediting under the network environment generally. According to typical cases occurred in recent years such as the case of Tencent Inc and Mengniu, the author concludes the particularity of network business discrediting and describes four specific forms.The second part is to analyze the components of the network business discrediting actions and its shortcomings. On the basis of current legislation and theory, this paper elaborates the constitution of network commercial defamation from four aspects of the subject, objective performance, subjective intention and infringement object, and discusses problems in the identification of behavior constitutes. These problems mainly include two kinds: one is with no legal provisions, such as the specific definition of competition; another is current provisions hard to cope with complex actions in the Internet, such as the forms of slander and standards of subjective cognizance.The third part is to expound the problems about identification existing in the present situation and the trial of judicial practice. First of all, the tort disputes of network business discrediting are difficult to determine, so application of the general rules of tort jurisdiction is disputed. Second, the burden of proof does not match the plaintiff’s ability, and this leads to the high cost of judicial activist. Third, the motility of judge lacks criterion and is not conducive to the unity of the ruling. Finally, the author comments on the case of Tencent Inc on base of the above analysis of cognizance of network commercial defamation.The fourth part is to make suggestions to improve our network business discrediting identified in view of the problems in the legislation and judicial practice pointed out above.