The case of the youth film studio infringement of portrait rights. [3]
Second, the Supreme People's Court on the civil rules of evidence of the judicial interpretation of the new problems
China's Supreme People's Court on December 31, 2001 issued a "civil litigation on a number of provisions of the evidence" (April 1, 2002) of the judicial interpretation, which provides that "as long as the general prohibition of the law, do not infringe the law, and do not infringe on the law, the court shall not be held responsible for any violation of the law. The judicial interpretation of the Provisions on Some Provisions on Evidence in Civil Litigation (effective April 1, 20 02) provides that "as long as they do not violate the general prohibitions of the law, do not infringe on the legitimate rights and interests of others, and do not violate the interests of the public and social morality, audio and video recordings without the consent of the other party may be used as evidence. After the announcement of this interpretation, some of the media played "clandestine photography and recording evidence is valid", "clandestine photography and recording legalized" headline articles, some rely on clandestine photography, stalking to make a living, has been wandering in the edge of the law of private detectives have also misinterpreted from this provision of their behavior From this provision, some private detectives misinterpreted the "basis" for their actions to be "legalized". The Economist (UK) published a report on July 20, 2002, entitled "China's private detective industry: illegal but red-hot". The Reference News, July 25, 2002, page 8, reported that China's new Marriage Law, adopted in 2001, stipulates that in the event of divorce, the party at fault must pay financial compensation to the party not at fault, and as a result, more and more people are hiring private detectives to collect evidence of extra-marital affairs. Secret audio and video recordings can be adopted by the court in civil cases, "a move that has boosted the development of the industry (i.e., the private detective industry)". Previously, the courts did not accept evidence obtained by means of clandestine filming and recording, but in accordance with the new rules of evidence on the criteria for determining "illegal evidence", evidence obtained by means of clandestine filming and recording may be recognized by the court. Since the new rules of evidence do not make clear provisions on the subject of evidence collection, in the event that it is difficult for the parties to adduce evidence and the court is unable to collect evidence due to objective reasons, there are bound to be some parties who will have to go through all kinds of channels and try to make use of the power of "friends" or "acquaintances" to carry out clandestine investigation and investigation in secret. Some parties will inevitably seek to collect evidence secretly through various channels and with the help of their "friends" or "acquaintances". China's "Sherlock Holmes" will be from the dream down to earth, the law should give them the provisions of what. [1]
The news media also found a basis for "legalizing" the "clandestine photography" and "clandestine recording" from this judicial interpretation. The legal "clandestine photo secretly recorded" April 1 can be used as evidence "wrote:" the Supreme People's Court on civil litigation evidence of a number of provisions "on" clandestine photo secretly recorded "information can be used as evidence to explain. A party put forward by other evidence and obtained by lawful means, there is no doubt that the audio-visual materials or with the audio-visual materials to check the copy, the other party to raise objections but there is no sufficient evidence to refute the contrary, the court shall confirm its proving power. The China Youth Daily published an article entitled "Judicial Guarantees for News Reporting", which pointed out that the dilemma of news reporting could be resolved in terms of evidence if there were laws that made clear provisions for the rights of news interviewers, such as providing for the right of interviewers to make normal unannounced visits and granting them the right to freely make audio and video recordings. Thus, the rules of evidence in civil litigation adopted by the Supreme Court this time actually make up for the embarrassment of the complete lack of a legal basis for news interviews and reports. An article in the Beijing Youth Daily, "There's more to it than "sneak peeks"", said: "Nowadays, sneak peeks of "black spots" with "pinhole cameras" have become the most eye-catching and irritating program in television news. The most eye-catching and most frustrating program on TV news. If there is a clear statement in law on this kind of interview, journalists will be able to encounter less embarrassment. As for the process of "clandestine filming and recording", how can it be called "infringing on the legitimate rights and interests of others" or violating "mandatory provisions of the law", and how can it be considered "legal"? I am afraid that the authorities will have to explain the judicial interpretation of "legalized" clandestine photo and video recording. What is the significance of legalizing clandestine photo-taking and recording in the media? says that clandestine filming and recording is done in secret, and in the case of critical reporting, it may be done against the personal wishes of the interviewee, or in direct contact with some of the interviewee's private information that people do not want to know. However, this does not make such behavior illegal. This is because, compared with the protection of the public's right to know and the right to monitor public opinion, the personal will of the interviewee and the privacy of the interviewee, which involves public interest, should take a backseat to the right of the public to be informed and to monitor public opinion in the course of a critical report. (People's Daily, April 2, 2002)
However, Hu Yong raised some objections to these views in his article "Beware of the Abuse of Clandestine Photography and Recording," published in the April 2, 2004 issue of the Legal Daily. He said: "The new rules of evidence in civil litigation have only one provision related to clandestine recording, that is, evidence obtained by infringing on the legitimate rights and interests of others or violating legal prohibitions cannot be used as the basis for determining the facts of the case. Although this provision does not exclude all secretly filmed and recorded materials from evidence, it can in no way lead to the conclusion that secretly filmed and recorded materials can be used as legal and effective evidence. ...... With the development of society and the progress of science and technology, on the one hand, people's demand for the protection of personal privacy is becoming stronger and stronger, and on the other hand, the instruments and equipment used for clandestine photographing and recording are becoming more and more advanced and lighter, and thus less and less easy to be recognized. Under these circumstances, people must be cautious about taking evidence by means of clandestine photographing and recording, and the admissibility of evidence of clandestine photographing and recording by the courts should be strictly controlled and grasped. At the same time, the state should speed up the development of laws and regulations on clandestine photography and recording behaviors, clarify the boundaries of legal and illegal, and strictly regulate the production, sale, and use of specialized clandestine photography and recording equipment to protect people's sense of security in modern life, so that personal privacy and dignity are not infringed upon."
After the announcement of this judicial interpretation, the judicial practice of using secretly taken video recordings to win the case. For example, the Business Newspaper reported on August 23, 2002, page 3, a farmer in Henan Province won a lawsuit with the evidence of the video recording; the People's Court reported on June 15, 2002, page 1, Beijing, a housing lease contract disputes in the case of the plaintiff also won the case with the evidence of the tape recording. There have also been cases in which the plaintiffs lost their cases because they had secretly recorded telephone calls. Ms. Kou, a former sales director at Beijing Fornad Electronic Technology Co. Soon after, the company sued Ms. Kou for damaging the company's reputation. During the trial, Fornad submitted 14 telephone recordings and transcripts, including telephone conversations between Ms. Kou and her sister, and chats between Ms. Kou and the company's customers. These recordings showed that Ms. Kou's telephone conversations included: "the company's legal representative ran back to Hebei", "the company's products are not working", "the company is going out of business", and so on. In response to this evidence, Ms. Kou argued that the recorded telephone calls were made by the company without her knowledge, without her consent, and in violation of the law. Therefore, this evidence should have no legal effect. After the court's investigation, it was learned that the company had two telephones, one for the legal representative's exclusive use and the other for the company's employees, including the defendant, Ms. Kou, to use. The other phone was used by the defendant, Ms. Kou, and the other was used by the company's employees. Fonad installed a recording device on the phone used by the company's employees, and most of the company's employees were unaware of this. Accordingly, the Court ruled in the first instance that the Plaintiff company had violated the Defendant's right to freedom of communication and privacy by secretly recording the Defendant's telephones without prior declaration or notification. Therefore, the company to steal the recording information as evidence of illegal behavior, because of the illegal behavior of the evidence, the judge shall not be admissible, so reject the plaintiff company's claim [2].
Frankly speaking, the Supreme People's Court "on civil litigation evidence of a number of provisions" there are still some need to re-interpretation of the place, for example, what is "does not violate the general prohibitions of the law, does not infringe on the legitimate rights and interests of others, and does not violate the interests of the public and social morality," what is What is "legal clandestine photography, clandestine recording", and so on.
Third, the reporter's right to interview, the disclosure of information and the right to know
The reporter's right to interview, is a manifestation of freedom of the press. The release of news programs, is a form of information disclosure (of course, information disclosure and its very rich content), its purpose is to meet the needs of citizens' right to information. The judicial interpretation of the Supreme People's Court's "Several Provisions on Evidence in Civil Litigation" is aimed at solving the problem of the legality of evidence. Regardless of whether it is public or private, it relates to the theoretical understanding of information disclosure and the right to know.
Disclosure of information is a requirement of the rule of law in modern society. It is a legal act in the phenomenological sense, or a governmental act in the broader sense, but the deeper rights basis is the right to know as a constitutional right. The issues of access to information and the right to know are linked to the growing process of democracy and the rule of law. It is only in the context of a highly developed democratic and rule of law social structure that the issue of access to information and the right to know is raised as a rule of law requirement and a civil right.
Disclosure of information is an act, a means, and the right to know is a legal right, a claim. In order to satisfy the right to know, disclosure of information is needed as a means. The right to information has not yet been specifically provided for and recognized in China's existing constitutional and legal structures. Therefore, for China, which is moving toward democracy and the rule of law, the right to know, as a fundamental right, needs to be recognized at the constitutional level, that is, constitutionally validated, which is the key and fundamental way to resolve the right to know issue. This argument is based first and foremost on an understanding of the nature of the right to know. Is the right to know a fundamental constitutional right or is it a derivative or an extension of a fundamental right?
Some scholars are of the view that the right to information is a derivative right, which can be derived from the right to freedom of expression, and that the right to freedom of expression implies the right to information. Therefore, there is no need to specifically recognize a right to information. In my opinion, the right to freedom of expression and the right to information are related, but they do not belong to the same nature. First, the right to freedom of expression is an "output" right, i.e., the right of the subject to send and publish information to the outside world, while the right to information is an "input" right, i.e., the right of the subject to receive information from the outside world, to ask for information, and to obtain information. Therefore, the ways of realizing these two rights are different. Secondly, the right to freedom of expression does not have a specific duty-bearer, as long as it is exercised within the legal boundaries, whereas the right to information generally requires a relative duty-bearer, i.e. someone who is relatively "in the know", which may be an individual or a group, such as the government, an enterprise, an institution, a social organization, a village committee, etc., i.e. anyone who needs to be informed, and who has to be informed. Such persons may be individuals or groups, such as governments, enterprises, institutions, social organizations, village committees, and so on, i.e., all the persons involved in the matters that need to be informed are relative obligors of the right to know. The fulfillment of obligations by the relative obligors is the condition and prerequisite for the exercise and realization of the right to know. (This point may help to resolve the debate about "which subjects are obliged to disclose information". It is not appropriate for the law to use a list of subjects to indicate which subjects are obliged to 'disclose information', as such a list would be difficult to make comprehensive and exhaustive, and the law proposes to use a generalized language to indicate unspecified subjects, so that when the matter in question involves a relative subject, that relative subject will be able to be revealed. It is therefore characteristic of the law that it should be general rather than enumerative, at least in relation to the subjects of the right to information and the subjects of "access to information" obligations). Again, if the right to information is derived from the right to freedom of expression, this would put the right to information in a situation of "misnomer and misrepresentation", which would make it difficult for the right to information to become a fundamental right of significance. Fourthly, we should not regard the basic rights of the Constitution as too "mysterious". As a combination of subjective and objective rights, the basic rights have been enriched and developed with the continuous development of the society and the deepening of people's understanding, and there is no unchanging pattern. The general trend of development is that the more society develops, the richer and more varied the types of rights become, and the greater the likelihood and reality of rights being transformed from contingent rights into legal rights and then into real rights. This is precisely the goal pursued by the rule of law. Therefore, the recognition of the right to information as an important fundamental right to the basic rights of the Constitution is the first and key to solve the problem of the right to information.
The right to information, after being recognized in the Constitution, as a fundamental right, has gained the status of constitutionality and has become a right that cannot be treated casually. For the subject of the right, it means that it has obtained a right to make a request to the obligor, and the right holder can make a request to the relevant obligor to be "informed"; for the subject of the obligation, it means that it has assumed and loaded a responsibility to provide the subject of the right with the "information" (in), which is the key link in the chain. It means that the obligated subject undertakes and carries a legal obligation to provide and supply "information" to the right subject, and the obligated subject shall not refuse the request for information made by the right subject, and once the request is refused, the right subject may file a lawsuit in accordance with the fundamental rights of the Constitution to safeguard the realization of the right to information. Of course, this in turn involves the establishment of a constitutional litigation system, which is closely related to the realization of the right to information as well as the entire mechanism of constitutional fundamental rights, and which is fundamental to solving the problem of the realization of constitutional rights. Of course, constitutional litigation as a major and complex rule of law issues, the need for specialized research.
Fourth, the right to know, freedom of the press and the right to privacy of public figures in conflict
The right to know as a fundamental right, the relative obligation to meet the requirements of this right. Freedom of the press, as a legal freedom to satisfy the right to information, may conflict with the right to privacy of public figures in the process of releasing news works needed by the public. In this case, the question of whether to uphold the freedom of the press or to protect an individual's right to privacy has become a matter of debate.
Prof. Wang Liming, in discussing the issue of minor inaccuracies in news reporting, argued that in order to safeguard legitimate public opinion monitoring, the law should prioritize the protection of press rights, while citizens should tolerate minor damage to their personality rights. He argued that the conflict between personality rights and freedom of the press is a "conflict of values" faced by the laws of all countries. Internationally, most countries tend to prioritize the protection of press freedom. For example, a 1964 United States Supreme Court decision stated that the values of freedom of speech and press would be protected in preference to personal reputation when the publication dealt with a matter of public concern. This is because the law has a variety of values, and when there is a conflict between the interests of society and the personality rights of the individual, the balance of the law should be tilted in favor of the public interest. He also quoted Engels as saying that personal privacy should be protected by law, but when personal privacy is linked to the most important public interest, political life, then personal affairs are no longer ordinary private affairs, but are part of politics. It is not protected by the right to privacy and should be an unavoidable part of news reporting. ...... social interest is a widely recognized defense in national tort law. Matters of public interest should be subject to the scrutiny of public opinion. [3] (P232-233) This view was reflected in a December 2002 decision in Shanghai, China, where the Shanghai Jing'an District People's Court, in its first instance judgment against soccer player Fan Zhiyi for damaging his reputation in a lawsuit against Shanghai's Oriental Sports Daily on December 18, 2002, made a point of adding the following dictum: "[e]ven though the plaintiff Even though the plaintiff believed that the controversial report naming him as a suspected soccer gambler was damaging to his reputation, the plaintiff, as a public figure, should be tolerant and understanding of the slight damage that may be caused by the media in the course of exercising legitimate public opinion supervision." According to the judge presiding over the case, the reason why the Fan Zhiyi case was decided at first instance was that the more advanced concept of "not citing minor offenses" was introduced into the common law system during the deliberation of the case. Some scholars have written that the principle of "no prosecution for minor crimes" not only breaks away from the original principle of "presumption of guilt", but also establishes the principle of "the greatest public interest", i.e., when a public figure has the right to reputation and public opinion, the right to scrutinize the public's opinion, and the right to be heard. The scholar also argued that the principle of "public interest is paramount", i.e., when a public figure's right to reputation conflicts with the right to public opinion and the right to monitor, the public interest must be subordinated to it, thus bringing China's judicial trials into line with international standards. This scholar also believes that the principle of "not citing minor offenses" deserves to be written into the history of Chinese journalism. [4] In my opinion, Prof. Wang Liming's suggestion that citizens should have the "duty to endure minor injuries" is a very dangerous one. Because in our country, where the sense of rights is not well developed, if such an obligation or principle is established, then anyone may infringe upon the rights of the citizens in the name of "protection of the interests of the social public" and on legitimate grounds. Robert Nozick, the famous American liberal political philosopher, pointed out that "the slightest infringement of a right is a violation, and morally impermissible."[5] Those who are in favor of the principle of "protection of the public interest of the community" are also in favor of the principle of "protection of the public interest of the community". [5] Scholars of the opposite opinion believe that freedom is a state of freedom from interference, but the exercise of the right to freedom must not be at the expense of infringing on the rights of others, and therefore freedom is relative. Personality rights, on the other hand, are absolute, and the law provides mandatory guarantees for the exercise of such rights. When there is a conflict between journalistic criticism and the protection of personality rights, emphasis should be placed on the protection of personality rights. In their interviews, journalists should have a strong concept of protecting personality rights, and should not use the exercise of freedom of the press as an excuse to infringe upon the personality rights of citizens, especially the rights to human dignity, reputation, privacy and portrait. [3](P232-233)
"Social interest", "public **** interest" and so on is the main argument for the freedom of the press to take precedence over the individual personality rights. But this is a specious question. First, "social interest", "public **** interest" is a difficult to determine, how to determine the standard? How should the criteria be determined? Who should determine them? Secondly, once any right is recognized by law, it has its own independent value and meaning, and should be in a state of equal protection by the law; there is no question of which right takes precedence over which. Thirdly, in specific conflicts of rights and the litigation arising therefrom, the judge's decision focuses on whether there is infringement and whether the degree of infringement reaches the infringement standard stipulated by the law, instead of judging the case based on the so-called prior theory and doctrine of "prioritizing rights". Fourthly, in specific instances of conflict of rights or individual cases, the subject of the right is very specific, either an individual or a group, and if we give one right superiority over another, we are giving the subject of the right a privileged position, which in fact denies the equality of the subject of the right, and violates the principle of the rule of law and the spirit of the rule of law that everyone is equal before the law. On the surface, it is giving one type of right an advantageous position, but in essence, it is giving the subject of a right an advantageous position, because a right is always a right of a specific subject, not a right outside the subject. Hans A. Linde, Associate Justice of the Supreme Court of the State of Oregon, commenting on the conflict between the two constitutional rights of "fair trial and freedom of the press", considered these to be "two rights against the State". It was generally recognized, he said, that the relatively less important constitutional right had to yield to the more important one. On reflection, however, it was clear that the alleged conflict of constitutional rights was based on a very simple fallacy. It is often true that the rights of individuals at risk in litigation are more important than the interests of society as reported in the press. He fundamentally denies that there is a conflict between the two constitutional rights, asking the hard question "what are constitutional rights for? They are used against the government, he said - usually not to ask the government to do something for you or me, but to limit what the government can do to us. He also pointed out that it is important to recognize that your constitutional rights are no greater than the rights of those you least respect (e.g., prostitutes, thieves, drug traffickers, etc.).[4] Thus, it is important to recognize that your constitutional rights are not greater than the rights of those you least respect. [4] Thus, the doctrines of "public interest" and "social interest" need to be further explained, or else they may become a pretext for violating the rights and interests of individuals. We should be alert to this.
According to a report in The Times, the United Kingdom is proposing to legislate to give sperm donors the right to know the father of their offspring, in order to resolve the conflict between the right to know and the right to privacy. The report said that on January 21, 2004, Melanie Johnson, the Minister for Public **** Health, will announce a piece of fertility legislation at her regular annual meeting. The legislation, which was voted on by the British Parliament, ruled that in the future the children of sperm donors should have the right to know who their biological fathers are, and that the children's right to know about their genetic inheritance should outweigh the sperm donor's right to privacy. This means that men who donate sperm in the future will not be required to keep their identity secret. It is understood that the British government introduced this legislation based on two factors: one is from the perspective of genetic medicine, and the other is from the current situation in Europe. At present, 1,000 babies are born each year in the UK as a result of artificial insemination. Ministers in the British Government believe that children born as a result of an insemination pregnancy have a fundamental right to know who their father is once they reach the age of 18, even if their parents or sperm donors are unwilling to do so. The genetic profile of a child's parents is particularly relevant in medical identification cases, as the genes that children inherit from their biological parents can have a significant impact on their health. It is becoming increasingly clear to scientists that human diseases, such as cancer, heart disease and diabetes, are inextricably linked to genetic factors, and that a person's family history is often the first source of information about the circumstances of a condition. European law and human rights legislation have challenged British justice, prompting the British government to see the need for a change in practice that would allow sperm donors' offspring the right to know their biological fathers, but would allow biological fathers to be traced without financial or other obligations to their offspring, and without being forced to meet children they do not want to.[5] This would be a significant change in the way that sperm donors' offspring are treated in the United Kingdom, where they are not allowed to see their biological fathers. [5] The message of this law is that the resolution of conflicting rights, such as the right to know and the right to privacy, should be achieved through legislation. And the legislation should be based on the full justification of the problems faced by the different rights.