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Acts of banter,It's just a joke, a joke, and a kind of "insincerity". It refers to an act in which the signifier makes an expression for the purpose of joking, and expects others to recognize his lack of sincerity.
[News Background Events].A few days ago, the entry "Zhang Xuefeng said that liberal arts are all service industries" sparked heated discussions among netizens. On December 9, Zhang Xuefeng posted an "apology" Weibo for remarks such as "the service industry is summarized in one word, that is, licking". On December 12, Weibo blogger "Gu Yanyou" posted on Weibo, believing that Zhang Xuefeng's remarks were a blatant "personality debasement and provocation" for the liberal arts students, and wanted to sue Zhang Xuefeng to the court for Zhang Xuefeng's previous remarks. At present, he is collecting evidence for the prosecution. (*News published on the Internet).
1. What is "banter"?
1. Mocking means that the expression of intent is not made out of the true intention of the expressor, and the other party is expected to understand that it is not out of the true intention. Behaviors such as "jokes", entertaining speech, bragging, etc. The act of banter is inconsistent between the inner true meaning and the expressed meaning, and has no effect meaning, because the consequences pursued by the actor are not legal but psychological.
2. The expression of intent of the joking act is invalid, regardless of whether the counterpart believes it or not. The legal evaluation is invalid. If the counterparty believes that the joke is true, according to the principle of good faith, the joker has the obligation to clarify the misunderstanding to the other party in a timely manner to avoid the other party from suffering a reasonable loss of trust interests.
3. Because there is no intention of setting legal obligations for oneself, "jokes" are not legally binding. The invalidity of the legal consequences of the act of banter is in line with the expectations of the actor, which is also determined by the non-seriousness of the purpose of the act of banter.
The purpose of the perpetrator of the joke can be discerned by the recipient, and the perpetrator's conduct is bona fide. An important reason for the legal exemption of the legal consequences of a joking act is to indicate the recognizability of the act. This visibility is based on the objective measurement of a rational person. If it exceeds the scope of what a rational person can identify, then it is beyond this "degree" and will be excluded by the law. Therefore, it can be examined from the motive and good faith of the perpetrator, and if the appearance can be seen to a low degree, it may be determined to be fraudulent.
4. At the same timeMockery must also maintain basic legal boundariesOnce the playful remarks and behaviors are manifested as insults (embodied in inappropriate verbal evaluations, belittling and degrading the personality of the counterpart), defamation (manifested in the dissemination of false facts on the issue of authenticity), and infringement of privacy rights (disclosing and disseminating information about the private lives of others protected by law), which affect the public's evaluation of the victims, it constitutes an infringement of the right to reputation.
2. An act of banter is an act of defamation infringement when it meets the constitutive elements of the tort
Even if Zhang's relevant remarks are "joking acts" in civil law, in general, there is no need to be too serious when there is no infringement of reputation. However, banter is not a place outside the law, and although there is no real meaning at the legal level, once there is an objective fact of damage to the reputation of others, it can also be determined as a reputation infringement.
1. The composition of the infringement of the right of reputation includes four elements:The perpetrator objectively has facts that harm the reputation of others, and the third party is aware of it. The perpetrator is subjectively at fault. The target of the infringement should be a specific person. The consequences have caused serious damage to the victim's reputation.
2. Several key points must be proven:
1) Plaintiff Subject:The need to have an interest in the fact of the act of defamation infringement is essentially a requirement of a legal conflict of interest. The plaintiff argued that his civil rights and interests had been infringed by the remarks.
The target of the infringement should be a specific person. A specific person is a specific natural or legal person. If there is no specific person, there is no such thing as a victim in law. If the designated object is a specific person in a specific environment and under specific conditions, it can also constitute an infringement of the right to reputation of others.
2) Subjective intentionality:The criterion should be whether the perpetrator had actual malice. This type of fault includes both willful and negligent behavior. Regardless of intent or negligence, as long as the infringer is subjectively at fault and objectively causes the social evaluation of others to be lowered, it is an infringement of the right to reputation of others.
3) Consequences of damages:As a consequence, the tortfeasor's conduct causes the victim to feel an unjust social pressure or psychological trauma and mental suffering. And it must be objective and real, not a subjective feeling of the victim, not a person's self-evaluation of his intrinsic value. Therefore, certain acts of the perpetrator do not constitute an infringement of the right to reputation if they do not cause a decrease in the social evaluation of the victim.
Conclusion:According to the principle of "whoever asserts the claim shall bear the burden of proof", in a defamation infringement dispute, the plaintiff needs evidence to prove that the infringement and the substantive rights have been damaged, and the relevant burden of proof is more stringent.
(Author: Wang Honglawyer [Law as the Sword] Yunnan Hengzhi Law Firm).
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