Balancing The Conflict Between Commercial Defamation Regulation And Freedom Of Commercial Speech

With the increasing value of commercial freedom of speech,the idea that commercial freedom of speech should be protected has become a consensus.As a typical unfair competition behavior,commercial slander is often presented as commercial speech.Therefore,how to balance the conflict is an urgent issue to be explored.Through the sorting of related cases,this paper finds that the courts in China mainly balance the conflict by determining whether commercial speech meets the three or four elements of the commercial defamation.However,I believe that the number of constituent elements is not the core of conflict resolution,nor the most essential difference between the methods.The application and identification of the elements is the key to balancing the conflict.There are many problems in judicial practice regarding the application and identification of each element such as confusing commercial smashing with infringement of corporate reputation,making the perpetrator to bear excessive burden of proof and verification obligation,no unified view on whether the subjective element is one of the constituent elements of commercial defamation,no unified criteria for determining the consequences of the damage.Based on the above problems,this paper evaluates the practices and puts forward corresponding views: While doing a broad understanding of the competitive relationship,we must not completely abandon this requirement.The authenticity requirements of commercial speech should be comprehensively judged according to the difficulty of verification,the purpose of speech,the influence of speech,etc.The key to misleading judgment is whether commercial speech has caused subjective cognitive bias of the relevant public.Subjective elements should be regarded as one of the constituent elements of commercial slander.Whether the perpetrator is at fault could be determined by whether or not to exercise due diligence.The core benefit of commercial slander is commercial competitiveness and trading opportunities,which should be used as a criterion for determining whether the consequences of damage have been caused.In order to better balance the conflict,commercial remarks involving public interest factors should also be given special consideration in commercial defamation regulations.This paper argues that the public interest factor regulates the fault level in the composition of commercial defamation behavior is more in line with China's situation.