At 3:40 p.m. yesterday, the Weibo name "Talk Show Yang Bo" posted a timed Weibo, suspected of being harassed and threatened by fan Han, and had suicidal thoughts.
The background of the Weibo post is that a fan posted a long post on February 2 saying that Yang Bo concealed his relationship when he had a girlfriend and kissed a fan, causing the fan to be "mistressed" without knowing it.
As for the rights and wrongs of the incident itself, this article will not discuss whether it is true or false, and this article only talks about the possible infringement of the Internet in this blog post.
The second paragraph of the blog post reads: "Han Ruxue is a madman, and the leaders of her college and the police station near Xiamen University know about this matter. "Her harassment and threats for more than three months also drove me crazy. Many of the short essays are made up. Just because I don't agree to break her shoes.
1- Does the name, location, and relevant "communication" facts disclosed in this paragraph constitute online infringement?
Article 110 of the Civil Code stipulates that natural persons enjoy the rights to life, body, health, name, portrait, reputation, honor, privacy, marital autonomy and other rights. Article 111 stipulates that the personal information of natural persons shall be protected by law.
In the author's opinion, the blog post may be suspected of infringing on the rights to privacy, reputation and personal information.
To be established, a privacy infringement needs to meet four elements, act, result, causal relationship and subjective fault. To determine whether Yang violated Han's privacy, it is first necessary to determine whether the blog post information involves Han's privacy.
Privacy refers to the tranquility of a natural person's private life and the private space, private activities, and private information that he or she does not want others to know.
"Intimate activities" mainly refer to activities that are not related to the public interest and do not want to be known to others.
"Private information" is information that individuals are unwilling to disclose, and may include personal physiological information, property privacy, family privacy, communication secrets, conversation secrets, personal experience privacy, and so forth.
In addition to announcing the name and the institution, there is also an emotional entanglement between two people. Generally speaking, the emotional entanglement between individuals, whether it involves normal feelings or "splitting legs", "being a junior", etc., is usually a private activity, and the details, texts, and chat records of the exchanges between the parties are private information and should not be arbitrarily disclosed. Therefore, the emotional entanglement involving Han on Yang Bo's Weibo may be suspected of violating privacy.
2-Yang Bobo's publication of Han's name and school name violates privacy or personal information rights?
The author believes that the individual's school is personal education information, and Yang Bo's disclosure of the name and school of others is a disclosure of Han's personal information rights and interests, which constitutes infringement.
Personal information refers to all kinds of information recorded electronically or otherwise that can identify a specific natural person, either alone or in combination with other information, including the natural person's name, date of birth, ID number, biometric information, address, ** number, email address, health information, whereabouts information, etc.
The privacy provisions of personal information are applicable.
Zhang Zhiwei believes in the article "The Boundary between Privacy and Personal Information: Judicial Determination Standards for Private Information" that private information is information that is not willing to be known by others, is secret, private, identifiable, and is recorded in a specific way.
However, it should also be pointed out that in individual cases, the blog post is disclosed at the same time as the name and the school attended, and after the general person or a specific range of people understand it, they can quickly locate the specific person, which may further lead to the consequence of invading their privacy and constitute a privacy infringement.
3- Is it an infringement to disclose personal information that has already been disclosed by the person in question?
Article 1036 of the Civil Code stipulates that the perpetrator shall not bear civil liability in any of the following circumstances in the processing of personal information:2) Reasonably handle information that the natural person has disclosed on their own or that has already been lawfully disclosed, except where the natural person explicitly refuses or the handling of the information infringes on their major interests.
This provision applies to the exemption from the processing of personal information, and can also be considered by analogy with respect to personal privacy information and privacy. Paragraph 2 provides that civil liability may not be borne for the reasonable handling of information disclosed by individuals on their own, except where the handling of that information infringes upon their major interests.
The key to whether Yang Bo's act of re-disclosing relevant information is not responsible, the key is to see whether the scope of re-disclosure and processing of information is too limited, and whether it infringes on Han's major interests.
4- Should privacy protections be curtailed when it comes to public figures?
In social events involving public figures or public information, the personality rights of public figures should be appropriately tolerated, and their privacy space is limited compared to that of ordinary people. In judicial practice, it is generally believed that the protection of public figures and the general public should be different, and the degree of protection for the general public should be higher and the scope of protection should be more comprehensive. The protection of the privacy of public figures should be reasonably limited to comply with the principle of fairness.
If a person chooses to become a public figure, he must pay a certain price, that is, in matters concerning him, the balance needs to be tilted in favor of freedom of speech, and only by maintaining such a small imbalance can the whole society be balanced.
However, this does not mean that "public figures" do not have the right to privacy, and private life matters and private living spaces that transcend social and public affairs, or do not involve public activities or matters of public figures, should still be protected by privacy. For example, in this case, Han's behavior of writing a small essay and posting screenshots of chat records may constitute an invasion of others' privacy.
5- The boundary between freedom of expression and the violation of the right to privacy
Freedom of speech is a fundamental right of every citizen, but freedom also has limits, especially in the online world, where carelessness constitutes infringement.
For emotional disputes, which are not yet illegal but involve morality, the whistleblower publishes information, texts, and records related to himself on the Internet platform, of course, it is freedom of speech.
However, freedom of speech also has certain boundaries, and if the whistleblower wants to legally break the news, he should pay attention to the authenticity of the incident, such as the information is untrue, and the remarks related to him may constitute defamation and infringe on the reputation of others; If the information is true, but there are insulting words such as abusive, it will also constitute defamation infringement. In particular, if it involves the reputation and privacy of others, it shall be published with caution.
At the same time, this kind of emotional entanglement between the two parties generally belongs to the privacy of others, and this kind of sharing without the consent of others still constitutes a privacy infringement according to the degree of speech.
Of course, if it involves illegal crimes and public interests, it can be published. Article 990 of the Civil Code stipulates that the name, title, portrait, personal information, etc. of the civil subject may be reasonably used for the purpose of news reporting, supervision, etc., for the public interest; Where the use unreasonably infringes upon the personality rights of civil subjects, civil liability shall be borne in accordance with law.
6-Do Yang Bo's remarks such as "madman", "broken shoes", "pretending to be pitiful and sympathetic", "premeditated slander", and "small essays are all made up" constitute defamation infringement?
Freedom of speech is a basic right enjoyed by citizens, especially in the increasingly developed online social networking, citizens' freedom of speech has been greatly expanded, but citizens should fully enjoy the right to express themselves freely on the Internet, while maintaining the necessary objectivity and rationality, and must not harm the legitimate rights of others. Disseminating inappropriate remarks on the Internet to insult or slander others, damage the reputation of others, and be known to a third party, causing others to lower their social evaluation, will constitute an infringement of others' right to reputation.
Yang Bo's remarks such as "madman", "broken shoes", "pretending to be pitiful and sympathetic", "premeditated slander", and "small essays are all made up" are analyzed from two aspects: first, whether the relevant facts are true, and if not, they constitute defamation; Second, if so, whether his words have reached the level of insult.
First of all, the article can directly point to a specific person through the name and school, which meets the specific pointing requirements. In defamation infringement cases, if the perpetrator's conduct cannot be directed at a specific target, it cannot be determined that the right to reputation has been infringed, such as the Zhang Xuefeng incident before this, where Zhang Xuefeng only refers to the liberal arts profession in general, which is difficult to constitute infringement on an individual.
Secondly, as to whether the relevant facts published by Yang Bo are based on whether there is any basis, because there is no in-depth understanding of the incident, if there is more information in the future, it can be judged. With regard to whether the words are insulting in the sense of defamation, the term "broken shoes" is generally considered to be a personal insult and therefore tends to constitute an insult.
Finally, the infringement of defamation needs to be known to an unspecified third party, and because of the infringement, it affects the social evaluation of the victim. Yang Bo and Han exchanged small compositions through Weibo, which met the requirement of being known to an unspecified third party.
7-**Individuals should be responsible for the content of the remarks and revelations
Yang Bo mentioned in the blog post that the "big V", "self-**" marketing account, "eating human blood steamed buns, and blog traffic** commented.
We have also noticed that since the rise of **, many platforms** have begun to pay extensive attention to hot events, especially private life, gossip and other events.
So how to avoid infringement when breaking the news?
Article 1025 of the Civil Code: Where the actor carries out news reporting, supervision, or other acts for the public interest, affecting the reputation of others, he does not bear civil liability, except in any of the following circumstances: (1) fabricating or distorting facts; (2) Failing to fulfill the obligation to reasonably verify seriously untrue content provided by others; (3) Using insulting language or other derogatory language to defame others.
According to the above provisions, first of all, as a ** and individual network user, you have the obligation to verify the relevant content, and you must not use insulting words to demean the reputation of others, and you cannot fabricate or distort the facts, otherwise you should also bear tort liability.
8- The way to solve the problem cannot cross the red line of the law, and online infringement may involve civil, administrative punishment, and criminal offenses
The author has come into contact with a number of cases of online infringement, in which the whistleblower and the infringer are often also victims, but victims should also take calm and legal measures to protect their rights and avoid going to the other end of the law.
With regard to online infringement, if the circumstances are minor, civil liability is generally sufficient, but if the circumstances are serious, administrative penalties and criminal offenses may also be involved.
Article 42: Those who commit any of the following acts are to be detained for up to 5 days or fined up to 500 RMB; where the circumstances are more serious, they are to be detained for between 5 and 10 days, and may be concurrently fined up to 500 RMB
2) Publicly insulting others or fabricating facts to slander others;
Guiding Opinions on the Discretion of Public Security Organs to Impose Penalties for Some Violations of the Administration of Public Security [Gongtong Zi [2018] No. 17] In any of the following circumstances, it is a "more serious circumstance" in Article 42, Paragraph 2 of the "Public Security Administration Punishment Law", and shall be detained for not less than 5 days but not more than 10 days, and may be concurrently fined up to 500 RMB: (1) Using heinous means or methods; (2) Causing a greater impact on the normal work, life, physical and mental health, or reputation of others; (3) Failure to stop despite dissuasion; (4) Using information networks to publicly insult, slander, or falsely accuse and frame others; (5) It is carried out against multiple people; (6) Other situations where the circumstances are more serious.
Penal CodeArticle 246 stipulates that whoever publicly insults others or fabricates facts to slander others by violence or other means, and the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention, controlled release or deprivation of political rights. The crimes in the preceding paragraph are to be dealt with only if they are told, except where they seriously endanger social order and national interests. Where the victim complains to the people's court about the conduct provided for in the first paragraph through information networks, but it is truly difficult to provide evidence, the people's court may request that the public security organs provide assistance.
Article 2 of the Supreme People's Court and Supreme People's Procuratorate's Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases Involving the Use of Information Networks to Commit Defamation and Other Criminal Cases provides that in any of the following circumstances, the use of information networks to slander others shall be found to be "serious circumstances" as provided for in the first paragraph of Criminal Law article 246:(1) The same defamatory information has actually been clicked on or viewed 5,000 or more times, or has been ** 500 or more; (2) Causing serious consequences such as mental disorders, self-harm, or suicide to the victim or their close relatives; (3) Having previously received an administrative punishment for defamation within two years, and defaming others; (4) Other situations where the circumstances are serious.
If an individual's reputation, privacy and personal information rights and interests are infringed, the right holder may consult a lawyer for advice, seek legal protection, and require the infringer to bear civil liability, including requiring the infringement to be stopped, the obstruction removed, the danger eliminated, the impact eliminated, the reputation restored, and the formal apology and the scope of the impact should be appropriate to the mode and scope of the infringement.