Research On The American Civil Defamation And Its Enlightenment

Defamation is a way of reputation infringement. "The citizens and legal persons shall enjoy reputation, no individual shall be allowed to damage the reputation right of citizens and legal persons in the way of slander and insult", which is established in the 101 article of "The General Principles of the Civil Law". However, the regulation classified defamation and insult in the same section which has different constitutive components, and lack of the definition of defamation, composition and defenses. Moreover, At the beginning of our legislation, the legislator did not take the conflict of the reputation and the freedom of expression into account. The legislation always pay more attention to the protection of the right of reputation.In order to building our democracy and legal system, we need to have rich and excellent international environment and learn a variety of useful legal culture at home and abroad. As we are now drafting the Civil Code of the People’s Republic of China, the development of defamation law is significant for the improvement of the whole personal right law. In view of this, the author will introduce the American system of civil defamation law, hoping to get the benefit of enlightenment. American civil defamation system originated from Britain defamation law, they have similar legal principles, rules and framework. So it is necessary to involve Britain defamation law when introducing American’s. And in the 1860s, the American Constitution’s First Amendment was introduced to the field of the law of defamation, continuing to develop on the basis of Britain defamation law and to form its unique civil defamation system.This paper, based on law cases, investigated the concept, origin and development, key component, defenses and remedies of American civil defamation system through historical and comparative analysis for the reference of the improvement of our defamation legislation. Besides the introduction, there are five parts:Part one, overview of American civil defamation system. Firstly, the concept of defamation was introduced, which mainly comes from common law. In common law, the concept of defamation is around reputation damage. With personal reputation protection as the single purpose, defamation is defined as the events that downgrade someone’s social evaluation, make others keep away from, laugh at or drop contact with him or her. Secondly, the origin and development of defamation were described. Stages experienced by defamation were stated with historical development as the main line.Part two, identification of key components of American civil defamation system. Key components of American civil defamation were discussed as the following five points:first, false and slanderous speeches, mainly illustrated the slander and falsity. True or basically true speeches are not deemed as defamation. Explanation to defamation includes reasonably prudent person in same or similar circumstances, context explaining standard and extrinsic-fact standard in implied defamation. Second, pointing at the accuser. According to American and British laws, pointing at accusers is a key component of defamation. Speeches without clear target are not defamation. This was discussed in three sections:explicit identity pointing out, implicit identity pointing out and group identity pointing out. Third, publication, including its components, types and principles, category and publication manner under special situation. Fourth, damages. As the result of defamation, it can be classified into reputation damage, spirit damage and property damage. Reputation damage refers to the external damage of reputation, usually seen as the downgrading of social evaluation. It exists objectively neglecting the feeling of the victim. Fifth, unture false. Practices of American defamation constitutionalization were introduced and analyzed based on cases with historical development as main line. It was found that, the accuser should prove the viciousness of untrue speeches of the accused if the accuser is officer or public figures. The practice of constitution in America indicates their emphasis on free speeches and active attempt to balance reputation right and speech freedom.Part three, accused’s defenses in American civil defamation system. Defamation defense is an indispensable part to balance the interests of the accuser and accused. According to rules of American Tort Law Restatement (second edition)", defamation defenses can be divided into absolute privilege defense and relative privilege defense. Absolute privilege defense endows the accused sure and absolute exemption from liability in certain situation to protect larger value or social benefit. Relative privilege defense only excuses the responsibilities due to providing untrue information to some extend after considering the subjective aspect of the actor on certain conditions.Part four, remedy mechanism in American civil defamation system, which mainly includes damages, ban and withdraw. Therein, damages are the foremost and can be classified into nominal, compensatory and punitive ones, with compensation as the principal and punishment as subsidiary.Part five, enlightment of American civil defamation system. Firstly, demonstrate the necessity of the defamation legislation which need to balance conflicts between reputation right and free expression from legal principle. In our country with written law, judges have no right of "creating law". There is neither judicial review system in China. The constitution taking expression freedom as basic right won’t have impact on civil defamation. So conflicts and balancing between reputation right and expression freedom should be considered during legislation, identifying the concept and constitutes of defamation clearly and endowing space for free speeches with defamation defenses. In addition, officers and public figures should have some tolerance to the behaviors of the public and media impacting their reputation, which needs the law regulations. Legislation perfection suggestions were proposed here in six aspects, which are expected to be concluded into the civil code:first, identify defamation definition and its composition; second, add insinuation and behavior-based defamation patterns; third, add rules about group defamation; fourth, add liabilities of the redistributors; fifth, introduce principles about "public officer" and "public figure"; sixth, add defenses; seventh, admit damages of reputation interest.