Article 1026
The following factors shall be considered in determining whether the perpetrator has fulfilled the obligation of reasonable verification provided for in item (2) of the preceding article:
(1) The credibility of the source of the content;
(2) Whether necessary investigations have been conducted into content that is clearly likely to cause controversy;
(3) The time limit of the content;
(4) The relevance of the content to public order and good customs;
(5) the possibility that the victim's reputation will be derogated;
(6) Verification capacity and verification costs.
I. Purpose of this Article
This article is a provision on the factors to be considered in determining whether the perpetrator has fulfilled the obligation of reasonable verification.
II. Evolution of the Provisions
(1) Removal of the burden of proof clause
Since the implementation of the original General Principles of the Civil Law, the Supreme People's Court has issued a series of judicial interpretations on cases related to the right to reputation, gradually clarifying the constitutive elements of defamation infringement, the main grounds of defense, and the actor's duty of care. From the previous legal provisions to the Civil Code, there are no special provisions on the principle of attribution of liability for infringement of news reporting and public opinion supervision, that is, the principle of general fault liability is implemented. In the first three deliberation drafts of the Personality Rights Edition, this article requires that the perpetrator shall bear the burden of proof for fulfilling his or her obligation to conduct reasonable review. This paragraph was finally deleted from the final deliberation draft and this law.
(ii) "Review" becomes "verification"
In September 2018, the draft of each sub-part of the Civil Code was released to the public for public comment, and articles 805 and 806 of the Civil Code put forward for the first time the "reasonable review obligation" that should be fulfilled by the perpetrators of news reporting and public opinion supervision. Articles 1025 and 1026 of the Civil Code, which were reviewed and adopted in 2020, were changed to "reasonable verification obligations". Compared with "review", "verification" emphasizes the importance of truthfulness and objectivity in relation to facts, emphasizing the duty of care of actors in news reporting and public opinion supervision to objectivity and truthfulness.
3. Interpretation of Provisions
This article is about the obligation of reasonable verification on the part of the news media.
The "obligation of reasonable verification" explained in this article is the obligation of traditional media as stipulated in Article 1025, Paragraph 2 of the Civil Code, and the online media have the obligation to reasonably verify the reports they produce, and in principle, they do not bear the obligation of reasonable verification of the information published by others on their own online platforms, but only bear the obligations stipulated in Articles 1194~1197 of the Civil Code.
The factors to be considered in determining whether the traditional media have fulfilled their obligation of reasonable verification in news reporting and public opinion supervision are:
(1) Credibility of the source of the content: If it is an authoritative source, it does not need to be verified.
(2) Whether the necessary investigation has been carried out on the content that is clearly likely to give rise to controversy: if the investigation is not investigated, the obligation of reasonable verification has not been fulfilled.
(3) Time-limited nature of the content: whether it must be reported in a timely manner, and failure to report in a timely manner will damage the public's right to know.
(4) The relevance of the content to public order and good customs: Where it is reasonably related to public order and good customs, the obligation of reasonable verification shall be performed.
(5) The possibility that the victim's reputation will be degraded: Even if the content of news reports or public opinion supervision is published, it is unlikely that the victim's reputation will be degraded, it is not considered that the obligation of reasonable verification has not been fulfilled.
(6) Verification capacity and verification cost: First, the media's ability to censor, for example, the media obviously cannot do the news that requires professional investigation or even investigation to verify the truth; second, if the verification cost is too huge and the gains outweigh the losses, there is no need to demand that the media must verify.
Where news reports or public opinion supervision that do not meet any of the above requirements fail to fulfill the obligation of reasonable verification, resulting in untruthful facts and infringing on the victim's right to reputation, the perpetrator shall bear civil liability.
The subject that claims that it has fulfilled its obligation of reasonable verification and is exempt from liability is the news media. According to the litigation evidence rules of who asserts and who presents evidence, if the news media believes that they have fulfilled their obligation of reasonable review in news reporting and public opinion supervision, they shall prove that their conduct meets the requirements of the above provisions and that they are not negligent, and they may be exempted from liability, otherwise it may be found to be an infringement of the right to reputation.
4. Cases
A certain association (Beijing) International Business Management Co., Ltd. v. a newspaper in a dispute over the right to reputation
Facts: A newspaper published a critical article against the World Luxury Association in XX Daily, with the title of the article "'XX Club' Accused of Leather Bag Company", and the author was Liu, a reporter from the newspaper. A certain association (Beijing) International Business Management Co., Ltd. believed that a certain newspaper had damaged its reputation by using such a negative title as a leather bag company without any legal basis, so it sued the court. The court held that although the article involved in the case cited negative information from the secret revelations of the pseudonym Tang Lu in many places, the reporter's interview recording of the secret whistleblower Tang Lu showed that the interview process was true and credible, and although the content of Tang Lu's revelations was all negative information, some of the contents were verified by the reporter's investigation and verification, and the exhibitions and luxury goods conferences involved in the revelations were real, and some of the words were sharp, but they did not constitute insults. The article involved in the case was an act of exercising the media's right to supervise public opinion by participating in the attention and discussion of the phenomenon of a certain meeting through a reporter's investigation and citing the opinions of many parties. The overall critical tone and sharp language of the article are in line with the characteristics of a critical article, and the legitimacy of the author's purpose should not be negated. After reading through the context of the article and synthesizing all the evidence in the case, it can be determined that the article involved in the case does not constitute an infringement of the reputation right of a certain association (Beijing) International Business Management Co., Ltd.
5. Analysis
This case involves the issue of whether the use of anonymous information sources for news reporting constitutes an infringement of the right to reputation. The use of anonymous information in news reports or information whose source cannot be conclusively identified does not necessarily constitute an infringement of the right of reputation. The credibility of the source of the content has become one of the factors that should be considered in whether the news media has fulfilled its censorship obligations, which means that the more certain and authoritative the information source, the lower or even no censorship obligations of the news media; Articles 1024~1026 of the Civil Code construct a model for determining infringement in the media's news reporting: Article 1025 proposes that news reports cannot be untrue and that the news media has the obligation to verify, and Article 1026 analyzes whether the news media has fulfilled its obligation to verify. Article 1026, Paragraph 1 provides clear guidelines for adjudication of such cases by stipulating that the credibility of the source of the content should be one of the factors to be considered in determining whether the news media has fulfilled its obligation to verify.