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诽谤侵权法律常识

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发表于 12/13/2017 03:09:23 | 显示全部楼层 |阅读模式
本帖最后由 郭国汀 于 12/13/2017 03:11 编辑

诽谤侵权:没有合法的理由发表有关他人某种不实和诋毁性言论。 构成诽谤侵权的三要件: 1 不真实的诋毁性言论; 2 无合法性; 3 发表。 质言之,真实性及合法得抗辩。诽谤案举证责任倒置由被告承担举证责任,而原告没有义务举证证明自已不存在诽谤言论所指责之事项。

Thomas G Guo 真实性抗辩指某指责系客观事实,并无不实虚假成份。合法理由主要指国会议员在立法院立法过程中的言论,法官,律师在法庭上的言论,记者即时如实报导庭审纪实等特权。而发表是指公开向第三者书面传播,包括图书,杂志,报纸,书信,电邮,博客,论坛,短息,YOUtube,脸书,推特,微信,电视,广播。



Thomas G Guo 书面诽谤,指永久性和可视性诋毁言论,诸如书写,印刷,绘画或肖像;口头诽谤指口头言说诋毁。书面诽谤不仅是可诉的侵权行为,而且是一种刑事犯罪,而口头诽谤仅是一种民事伤害。前者在所有的情况下均可诉,后者仅在证明实际损害时才可诉。


Thomas G Guo 英美法诽谤书面诽谤远比口头诽谤严重。因牵涉面影响力书面诽谤由于现代电子信息传播的广泛性,可能造成极严重的后果故法律后果亦很严重。书面诽谤构成侵权也构成犯罪(属不告不理)。无须证明实际所受损害书面诽谤的受害者可以起诉;口头诽谤仅构成侵权,受害方须证明实际受物质和精神损害。


Thomas G Guo 诽谤言论伤及所涉对象的名誉与公众评价,引起人们对受害者人格人品道德名誉的负面评价,降低公众对某人的尊重信任爱戴支持,转变成仇恨蔑视嘲笑恐惧讨厌。受害人名誉受损精神情感亦受伤害。公共形像的改变,必将影响其社会地位及人们心中的地位。为保护公民名誉权隐私权,有必要限制公民的言论自由权。

Thomas G Guo 公众人物的名誉权和隐私权相对社会公众而言,法律保护力度不如公众,原因在于保护公共利益大于保护公众人物个人利益。言论自由权与公民隐私权和名誉权两者有时相冲突,公正的法律不极端强调任何一方,而是平衡两种利益。


Thomas G Guo 良好的名誉是人安身立命之本。名利是绝大多数人一生的追求。不屑名利者凤毛鳞角,赢得良好的名誉受人尊重信赖爱戴极不易,毁掉他人名誉却轻而易举。电子信息时代故意诽谤他人司空见惯后果极为严重。相互尊重他人的人格尊严,杜绝任意诋毁他人名誉,应当成为国人自觉尊守的行为准则。



Thomas G Guo 依英美加共同法原则,只要指控不真实,对他人的诋毁性言论即构成诽谤。言说者的动机与目的或实际损害与诽谤言论之间的直接因果关系均不影响诽谤构成。言者信以为真实或采信他人不实言论误以为真实而传播均构成诽谤。凡是足以引起人们对评论对象产生否定性评价的不实言论均可构成诽谤。


Thomas G Guo 诽谤者的主观动机不影响诽谤侵权成立,但诽谤罪的成立,取决于行为人的主观动机与目的,两者在适用法律惩罚救济程度上有所区别。若因受害者的不实或虚假言说引起第三者对受害者发表诽谤言论,仍然构成诽谤,但法律救济仅是象征性赔偿,例如赔偿一美元。



Thomas G Guo 言论自由权并非绝对权利而是法律下的自由。法律禁止性规范,如诽谤污辱他人名誉等不在言论自由范筹。构成诽谤取决于足以毁人名誉的不实虚假言论的事实,与言说者的主观动机无关。言说者的过错无法抗辩。故凡涉及他人名誉的言说必须慎重。尊重他人名誉人格尊严审慎行使言论自由权以不触及诽谤为前提。

Thomas G Guo 诽谤侵权及诽谤罪与一般侵权和普通犯罪构成要件不同。犯罪目的和动机是犯罪构成要件,但诽谤侵权取决于后果,言说者的动机与目的不影响诽谤侵权成立,虽有诽谤目的若言论并无诽谤含义,无侵权责任。因轻信误信不实信息,言说者指控他人构成诽谤。诽谤罪须以故意为前提,此种恶意举证责任归公诉人。


Thomas G Guo 英美加共同法系对公共人物的批评指控法律保护力度大,对不实言说大多保护受害人严格要求言说者,因其重视保护个人名誉权隐私权。近20年来,英联邦国家皆偏向美国的审判实务,加调保护言说者,尤其在公民记者对抗公众人物场合。加国最高法院2009年颠覆传统,保护记者对于公共利益问题行使舆论监督权。

Thomas G Guo 记者做为舆论监督的主要实施者,仅在即时准确报导立法院讨论辩论或法庭审理之重大案件时享有特权。记者对一般社会新闻或采访报导没有特权。而对立法辩论及法庭审理,则要求准确报导。 由于立法司法属于对全社会有重大影响的事件,因而法律赋予记者免责特权旨在保障公众对重大公共事件的知情权。

Thomas G Guo 若无把握所述事实的真实性,应及时撤除已发表的诽谤言论,否则一旦证实其虚假将面临加重处罚。言论真实是诽谤案第一抗辩。因举证责任倒置,原告没有义务证明自已不存在被指控的事项,反之被告负有很重的举证责任证明某一事实的真实性。

Thomas G Guo 诽谤侵权后果严重主要因大量多级传播,若传播者随意传播诽谤言论,很可能会被列为共同被告受到追究。传播者欲免责,负有证明自已无过错之举证责任。无过失即行为人已尽已之审慎审查核实之责。对于明显不实或虚假的诽谤性言论,非经核实确认而传播,很可能被责令承担共同侵权之责。

Thomas G Guo 近期文贵针对八位民运志士的大量诋毁性言论指控已构成极严重的诽谤侵权,甚至诽谤罪。希望文贵杜绝任何毫无根据的诋毁他人名誉的言论,否则极可能被众多被诋毁名誉的民运人士起诉索赔巨额损害赔偿。尊重他人名誉人格尊严,也就是尊重你自已!







 楼主| 发表于 12/16/2017 19:07:31 | 显示全部楼层
根据《中国刑法》第二百四十六条规定,侮辱罪,是指使用暴力或者以其他方法,公然贬损他人人格,破坏他人名誉,情节严重的行为。[1-2] 侮辱罪客观上使用暴力或其他方法,公然败坏他人名誉;主观上只能是故意,即行为人明知自己的侮辱行为会造成败坏他人名誉的危害结果,并且希望或者放任这种结果的发生。另外根据《刑法》规定,只有情节严重的侮辱行为才构成本罪。
 楼主| 发表于 12/20/2017 14:03:31 | 显示全部楼层
Republic of Korea Case Summary and Outcome
The Crime of “insult” is an act punishable by prison or fine. The Court in this case looked at the constitutionality of the Criminal Act which considers an insulting an individual publicly as a criminal offense. This Court held that the Criminal Act was indeed constitution because the term “insult” within the text was not ambiguous nor void for vagueness and there was an important interest in protecting individuals from being publicly insulted.

Facts
The complainant was charged with violating the Act on Promotion Information and Communications Network Utilization and Information Protection because he posted defamatory statements about the defendant on a website and blog. The complainant was given a fine of three million South Korean won by the trial court. The decision was appealed to the Court of Appeals and the Supreme Court, who both denied review. The complainant then filed a case with the Constitutional Court requesting review of the constitutionality of the Act. This review was denied. The Complainant again appealed to the Constitutional Court which is the subject of the instant action.

   Decision Overview
The main issue in this case is the constitutionality of the provision of the Criminal Act which states that “[a] person who publicly insults another shall be punished by imprisonment or imprisonment without prison labor for not more than one year or by a fine not exceeding two million won.” The two main tests employed by the Court in determining whether this provision is unconstitutional were, (1) whether the word “insult” in the act was void for vagueness, and (2) whether the provision violates the least restrictiveness test. The court ruled that the term “insult” is not vague because it is reasonable to assume that a reasonable person would know that an insult is a defamatory statement. Therefore, the provision is not void for vagueness. Second, the court ruled that the provision of the Act did not fail the least restrictive test. The Act is intended to protect individuals from defamatory statements and the Act does just that by criminalizing the act of insulting someone publicly.
Three of the Justices dissented, stating that the provision does not meet the least restrictive means test. The dissenting opinion noted that by criminalizing the act of insulting someone publicly, this also incorporates constitutionally protected speech such as, “satirical, humorous literary expressions that use ridicule to expose and criticize the world, twisted, negative intentions taking the form of polite expressions, newly coined words on the Internet that are somewhat violent, etc.” Therefore, the dissenting opinion asserted that the insult provision was unnecessarily vague and did not meet the least restrictiveness test.

 楼主| 发表于 12/20/2017 14:23:00 | 显示全部楼层
Beyond a joke: seven countries where it's a criminal offence to insult a head of stateBy


Joanna Gilllast updated: 15/04/2016

Did you hear the one about the King and the pony? Probably not in some countries where insulting a head of state is a crime

In politics you have to have a thick skin, unless that is, you have a law that criminalises insulting heads of state.
Chancellor Merkel’s decision to allow a German comedian to be prosecuted after Turkey’s president filed a complaint against him is set to test the limits of free speech and satire.
The news has sparked debate over what constitutes satire, but also alerted people to the fact that insulting a head of state is considered a crime in certain countries.


Lèse-majesté from the Latin laesa maiestas or ‘injured majesty’ covers the crime of insulting heads of state.
It was the Romans who first outlawed this behaviour. At first the crime was defined as a violation of fundamental Roman laws. However, when the Roman Empire replaced the republic, the crime evolved into an offence against the emperor himself, although applied more to acts of treason.
But as the cult of personality developed, verbal assaults could also fall foul of the rules. This then passed into Germanic law and feudal law.
In the modern world, most lèse-majesté laws were scrapped along with absolute monarchy.
Governments have long arms
Sticks and stones may break bones, but words can land you in prison and/or with a hefty fine in different countries. Here’s a breakdown of where you have to bite your tongue or face the consequences:
Poland
In Poland not only can you be charged for insulting your own leader, but visiting dignitaries are afforded the same protection from slander. In 2005 police arrested 28 protesters demonstrating against the visit of Russian President Vladimir Putin under Article 136 of Polish criminal law.
There was also the case of Robert Frycz, sentenced to 15 months community service in 2012 for insulting the president on his website Antykomor.pl. Frycz insisted his content was satirical, such as Komor Killer, a game which allowed visitors to fire vegetables at a virtual president. President Bronislaw Komorowski attempted to “distance himself from the case:“http://www.thenews.pl/1/9/Artykul/113203,President-against-law-on-insulting-head-of-state and later said: “Personally, I can manage without such legal protection.”
More recently 17-year-old blogger Zabawny Kuc had his computer confiscated after putting a satirical clip on his Facebook. The video showed President Andrzej Duda played in reverse, appearing to take a bouquet of flowers off a memorial in a drunken manner. But the president intervened, tweeting at prosecutors not to take the matter further.
The Netherlands
In the country which holds massive street parties to celebrate the Queen’s birthday, insulting the monarchy can carry a sentence of up to five years and a fine. In 2007 a 47-year-old man was fined €400 for calling the queen a ‘whore’.
Spain
Spanish satirical magazine El Jueves was fined after publishing an issue with a caricature of the then Prince of the Asturias and his wife performing a sexual act. The edition was pulled from news stands. The magazine was found guilty in violation of laws 490.3 and 491 of ‘insults to the crown’. Slandering or defaming the crown can carry a penalty of up to two years in prison.
Switzerland
The country known for its neutrality has a very strict code on insulting foreign heads of state. In Article 296of its penal code concerning ‘Offences Detrimental to Foreign Policy’ it states:
“Any person who publicly insults a foreign state in the person of its head of state, the members of its government, its diplomatic representatives, its official delegates to a diplomatic conference taking place in Switzerland, or one of its official representatives to an international organisation or department thereof based or sitting in Switzerland is liable to a custodial sentence not exceeding three years or to a monetary penalty.”
Thailand
Thailand’s lèse-majesté laws are some of the strictest in the world. The crime dates back to the 19th century when offending the monarch could lead to beheading or having your hands, feet or ears cut off. The modern concept was enshrined in law in 1908 and updated in 1956 and states: “whoever defames, insults or threatens the king, queen, heir apparent, or regent shall be punished with imprisonment of three to 15 years.” It can cover infractions such as sending critical text messages, or even clicking the ‘Like’ button on Facebook next to an ‘offensive’ post. The law has provoked widespread controversy. Thai fortune teller, Suriyan Sucharitpolwong, who was held under the law, was found dead in his cell in November 2015.
Saudi Arabia
In Saudi Arabia, insulting the king is consider a terrorist offence. Zuheir Kutbi was arrested in 2015 after allegedly insulting the second king of Saudi Arabia, Saud bin Abdel Aziz Al Saud. A counter terrorism law that took effect in 2014 considers all actions that “threaten Saudi Arabia’s unity, disturb public order, or defame the reputation of the state or the king” as terrorism. Amnesty International launched an appeal for his release in January 2016.
Venezuela
In Venezuela it is a crime to offend “in writing, speech or by any other means” the elected or acting president. Guillermo Zuloaga was briefly arrested under this law by Venezuelan military intelligence for a speech that then president Hugo Chavez found ‘offensive’.
This is by far not an exhaustive list, you could also find yourself royally busted for taking a shot at a country’s head of state in Lebanon, Norway, Kuwait, Jordan, Morocco and Malaysia.

 楼主| 发表于 12/20/2017 14:31:50 | 显示全部楼层
Causing disturbance, indecent exhibition, loitering, etc.
175. (1) Every one who
(a) not being in a dwelling-house, causes a disturbance in or near a public place,(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,(ii) by being drunk, or(iii) by impeding or molesting other persons,(b) openly exposes or exhibits an indecent exhibition in a public place,(c) loiters in a public place and in any way obstructs persons who are in that place, or(d) disturbs the peace and quiet of the occupants of a dwelling-house by discharging firearms or by other disorderly conduct in a public place or who, not being an occupant of a dwelling-house comprised in a particular building or structure, disturbs the peace and quiet of the occupants of a dwelling-house comprised in the building or structure by discharging firearms or by other disorderly conduct in any part of a building or structure to which, at the time of such conduct, the occupants of two or more dwelling-houses comprised in the building or structure have access as of right or by invitation, express or implied,
is guilty of an offence punishable on summary conviction.

Evidence of peace officer
(2) In the absence of other evidence, or by way of corroboration of other evidence, a summary conviction court may infer from the evidence of a peace officer relating to the conduct of a person or persons, whether ascertained or not, that a disturbance described in paragraph (1)(a) or (d) or an obstruction described in paragraph (1)(c) was caused or occurred.


CCC
Proof of the Offence[edit]
subsection (a)
The crown should prove:
  • the identity of the accused as culprit
  • the jurisdiction in which the incident occurred (neighbourhood, city/town, and province)
  • the time and date of the incident
  • the commission of one of the enumerated acts:
    • fighting,
    • screaming,
    • shouting,
    • swearing,
    • singing,
    • using insulting or obscene language,
    • being drunk, or
    • impeding or molesting other persons
  • the act causes a disturbance
  • the disturbance is in or near a public place.[1]
subsection (b)
The crown should prove:
  • the identity of the accused as culprit
  • the jurisdiction in which the incident occurred (neighbourhood, city/town, and province)
  • the time and date of the incident
  • loiters in a public place and
  • in any way obstructs persons who are in that place


Interpretation[edit]
A disturbance must be more than mere emotional upset or annoyance. The disturbance must be foreseeable as a consequence from the act. [1]
The actus reus of the offence involving obscene language requires that the obscene language cause an externally manifested disturbance.[2]
Shouting does not include amplification by a device such as a megaphone.[3]
Swearing includes the use of bad, obscene or offensive language.[4]
Disturbance requires more than merely an observing crowd or a crowd shouting anti-police sentiment as officers make arrests.[5]
An officer's belief that the accused's language directed at them was vulgar, aggressive and inappropriate alone is insufficient.[6]
"Loitering" must be an action or inaction without purpose. Simply standing around is not sufficient.[7]

See also[edit]
 楼主| 发表于 12/20/2017 14:34:55 | 显示全部楼层
本帖最后由 郭国汀 于 12/20/2017 14:43 编辑

It shouldn't be a crime to insult someoneMike Harris

Sometimes you have to feel sorry for the police. Beyond already dealing with a raft of ill-considered laws, politicians also want them to act against "insulting" behaviour. Section five of the Public Order Act is so broad that almost any protester on any subject can be arrested and fined for harassment, causing "alarm or distress".
It's not merely theoretical; many ludicrous cases have been prosecuted. The police arrested a student who held up a sign stating Scientology was a cult – surely a matter of opinion? Kyle Little, a 16-year-old from Newcastle, was fined £50 with £150 costs for saying "woof" to a labrador dog in front of police officers. Eventually the magistrates' decision was overturned by a crown court. The very arbitrary nature of deciding what is insulting gives the police a power they can misuse. After a night out with friends, Sam Brown asked a police officer: "Excuse me, do you realise your horse is gay?" Police took Brown to court after he refused to pay an £80 fine. The CPS eventually dropped the case.

Criminalising "insult" has a detrimental effect on freedom of expression. The term is so broad that it creates legal inconsistencies. There is legal authority that defacing the American flag is a non-insulting form of protest but burning a poppy is criminally insulting. It makes little sense.
These powers are widely used during protests. Protest is often directed at an unsympathetic audience and will often directly cause offence. Oil companies may feel insulted by accusations of having blood on their hands, but there is a clear public interest in having opinions on the behaviour of the powerful heard.
Lord Justice Sedley said in Redmond-Bate v DPP: "Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.
Yet, the inclusion of "insulting" in the Public Order Act means there is no clear jurisprudence between the offensive speech protected by Sedley and insult as criminalised by the act. Unfortunately most of these cases will go nowhere near learned judges, and the majority of these fines won't be challenged by a public that has never been informed of its rights. Very few of these cases get beyond a magistrates court, and divisional courts, where some of these fines have been quashed, are often loth to intervene.When asked to determine the meaning of the word insulting under the previous form of the act, the House of Lords held in Brutus v Cozens that "parliament has given no indication that the word is to be given any unusual meaning. Insulting means insulting and nothing else".
This law, combined with our culture of offence, means there is the expectation that opinions deemed offensive should be criminalised. Our tolerance of the harmless eccentric has waned. The British no longer raise an eyebrow at fringe opinions, but demand the full force of the law. One example is Harry Hammond, a 69-year-old evangelist street preacher. Hammond believed homosexuality was a sin and wanted everyone to know this. So he stood in the streets of Brighton proselytising against homosexuality with a sign proclaiming the catchy slogan: "Jesus Gives Peace, Jesus is Alive, Stop Immorality, Stop Homosexuality, Stop Lesbianism, Jesus is Lord."
Instead of ignoring an old bigoted man, a crowd gathered. At one point he fell to the ground in a tussle over his placard, and soil and water were thrown over him. While Hammond was charged under section five, no one in the crowd was charged for assaulting him. He was fined £300 by a magistrate and ordered to pay costs of £395. The court also ordered the forfeiture of his sign. He died shortly after his conviction. Gay rights activist Peter Tatchell described Hammond's prosecution as "an outrageous assault on civil liberties".
While it's easy to see how Hammond's behaviour could rile a crowd, the danger with policing offence is that it's highly subjective. Perhaps only a generation ago, when there was very little tolerance towards homosexuality, a gay pride march could have been prosecuted for insulting Christians like Hammond.
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Luckily, liberty has friends in parliament. Conservative MP Dominic Raab discovered that section five was used 18,249 times in 2009. Less than one in six of these offences had a religious or racial element, the majority were for the non-specified crime of insult. Following pressure from the Liberal Democrats, the Home Office consulted on this issue. My organisation, Index on Censorship, has been lobbying hard for ministers to roll back the culture of offence which has a corrosive effect on free speech. Removing insult from section five would be a good start.
Finding the correct balance between public order and legitimate protest isn't always easy. But asking the police to patrol offence has undermined public trust in them. Rightly so, for it is not the job of local bobbies or magistrates to protect citizens from insult. Christian preachers or mouthy anarchists may irritate, but in an open, free society, robust opinion will insult you: perhaps we all just need to get used to it.

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