The Dividing Line Between Freedom Of Speech And Crime Of Defamation

Measure of free speech can value and characterize the society because tolerant and free atmosphere can provide the healthy growing and develop of person and society. As a basic human right, free speech is generally be preserved by the constitution. Correspondingly, rumors can rock the whole society. When the right is abused, basic civic right is trespassed and public order is challenged, the bottom line of exercising the free speech right is becoming another topic deserving deep thought.Though the libel is set in the criminal law of China to protect the reputation and privacy right of citizen, it will also has inflict between free speech right and libel under some circumstances causing by difference of value orientation. That is why substantial problems cannot be avoided when the criminal and civil judicature are practicing. Choosing civil law or criminal law when regularizing speech seems to be ambiguity in juridical practice. Amounts of wrong libel cases were repealed, which has caused significant impact on public trust. As private prosecution, libel can only be changed into public prosecution after investigated by government when meet the requirement of both gross violation and endanger social and national interests badly. Libel’s being improper private use by justice organization has caused people unsatisfactory and worries to the disrespect of free speech right. No wonder the saying such as remove the libel was coming up in recent years. Due to the difference of human’s value, morality, legal and basic qualities, the limitation of free speech is also vary with each individual. The regulation of free speech and practice of libel shall be precise defined so as the problems may take place because of the loose justice.Social science shall focus on the new issues or critical issues occurred in the new time and put out theoretical guidance. In order to carry through this theory direction, the thesis chose free speech and libel as the object of study. The existing research copies generally start from law or constitution perspectives(personality, reputation and privacy right) to discuss libel and free speech, which is not comprehensive nor systematical enough to libel’s incriminate standard, constitution, and whether apply to civil or criminal law under free speech circumstance. At present, protection of citizen’s right of free speech is getting more important. The conflict of libel’s stipulating human behavior is also keep social development at bay. During preparing and the process of this thesis, the following methods have been involved. The first is comparative study. Such as introduce balancing of interests principle in civil law countries and actual malice principle in common law countries. The second is conceptual analysis. Define free speech and libel, and then put out the opinion of their range of application and condition. The third is legal interpretation. Understanding relevant laws, regulations and interpretation, explore the real intention of free speech and libel, so that to find out how to judge more reasonable in domestic justice practice.Considering from theory and precedent, in this thesis, the definition and solution of the conflict between free speech and libel will be set out as followed.In the first part, define free speech and libel. Free speech’s scope of application shall not be limited to oral, written and online speech, but also include all forms of public speech. In the definition of libel, clarify the difference between libel behavior and crime in the first place. Secondly, introduce law and regulation of free speech and libel in Chinese civil law, criminal law and administration law. It is easy to distinguish the form of free speech and libel. But when citizen are expressing opinions that may clash others’ right of reputation, differential treatment shall be taken to deal with these kinds of problems. This shows that the set of libel shall be valuable and realizable, at the same time, the boundary between free speech and libel also need further discusses.In the second part, study the judge of libel’s boundary. In civil law countries, the authenticity and pertinence to public advantages takes more emphasis. In common law countries, the psychological states is more important, which means whether the speech is true or not, if malevolence is involved, responsibility shall be taken. This thesis summarize legislation model and judicial experiences in different countries through extracting the facts and law facts, officials and public characters as well proportionality principles and procedural applications from legal precedent.In the third part, analyze the complication and conflict between free speech and libel. At present, domestic scholars usually hold two different opinions. One is to judge by level principle of the basic rights, which is unstable and lacking support from constitution. Another is to remove libel which is also improper because of libel is constitutionalist. In this thesis, the author think ambiguous definition of “seriously damage the social order and national interests” may cause the weaken the judicial credibility. Also without a clear definition to different people such as officials and public characters, ways to express free speech is still limited to citizen.In the last part, combining issues put forward earlier, raise the opinion of defining free speech and libel. First of all, judge the boundary of libel and free speech base on the key component. Actual intent and vilification purposiveness shall be applied to libel while indirect intent still shall be applied to free speech. If damage of reputation is caused because of the vilification, civil law can be used to regulate the improper behavior. Moreover, as libel is actual damage offense, if the damage has not yet occurred, free speech is still applicative. Secondly, to discuss the boundary of free speech based on three principles. According to risk tolerance principle, apply civil or criminal law by measuring the damage degree to allow the risk in practice. Complying with proportionality principle, take intent and action into consideration and regulate some of the libel with civil law to alleviate negative influence. In the priority principle of public welfare, due to public characters bear higher monitor standards, part of common people’s improper behavior and comments shall be within the tolerance range. In conclusion, the most important is to investigate the crime strictly, and then reevaluate the boundary of free speech and libel. Reduce unnecessarily use of criminal law and control free speech and libel by civil or administration law to ensure citizens’ right of reputation.In this thesis, the way to solve the conflict between free speech and libel has great value to right exercising. The exploration of relationship between free speech and libel also shows the social evolution and human right awareness is getting revival.