Focus on the "personality right" in the Civil Code: My personality is inviolable.

In order to further enhance the public's understanding of the Civil Code and better protect people's rights and interests, this issue of Shenrui Weekly continues to analyze the "personality right" in the Civil Code with the help of specific cases after focusing on the first anniversary of the Civil Code in the previous issue of this newspaper. With the development of economy and society, citizens' awareness of protecting their own rights and interests is increasing, and they pay more attention to personality spirit. One of the highlights of the Civil Code is the addition of "personality right", which clarifies the rights that civil subjects should enjoy, such as the right to life, body, health, name, name, portrait, reputation, honor, privacy and personal information. Personality right involves all aspects of daily life. According to the Guangdong Higher People's Court's first report on the implementation of the Civil Code to the Standing Committee of the Provincial People's Congress, since the promulgation and implementation of the Civil Code in 20021,the Guangdong Provincial Court has handled a total of 1764 cases on the protection of personality rights. The reporter learned that reputation, privacy and personal information are the hot spots that people are most concerned about. The implementation of the compilation of personality rights has strengthened the maintenance of personal dignity, responded to various challenges faced by the protection of personality rights in the network information age, and solved many new situations and problems in judicial practice. In reality, what other "new" infringements involve personality rights? What measures can we take when we are infringed? Recently, this newspaper interviewed several lawyers and judges with relevant judicial practice experience. On June 65438+1October 1 1 day, 2022, a media forum on the dispute over Jiang Qiulian v. Liu Nuanxi's right to life was held in Beijing. "Reputation right" has become a hot topic in consultation. The concept of "reputation right" is clearly defined in the Civil Code. "The community has set up a face brushing system to force residents to input face information. Is this behavior infringing? " "Is there any colleague who has violated my reputation by publishing false information that denigrates my academic qualifications through the platform of Weibo or WeChat official account?" "My neighbors upstairs make noise every night, which makes me sleep disorders. Can I sue him for violating my right to health? " Over the past year, partner lawyers from law firms have clearly felt that "personality right" has become a hot topic of consultation with the enhancement of people's awareness of protecting their rights and interests. "In fact, all acts similar to the above may constitute an infringement of the personality rights of the parties." As a classification of personality rights, the right of reputation refers to the right of citizens and legal persons to enjoy their reputation without being infringed by others. "Judging from the amount of consultation in the past year, disputes over reputation rights are on the rise. The subject of litigation is often individual citizens, which shows that on the one hand, people pay more and more attention to reputation, on the other hand, the implementation of the civil code makes tort law have laws to follow. " Lawyer introduction. "One of the advances in the Civil Code is to clarify what is the right of reputation:' the right of reputation is a social evaluation of the morality, reputation, talent and credit of civil subjects', which makes the right of reputation controllable and concrete. For example, in reality, framing each other's morality, work experience or education, credit system, etc. May infringe on the reputation of the other party. " The lawyer explained. Therefore, lawyers reminded that it is particularly important to clarify the concept of "reputation right" and remind citizens that "it is well-founded": "For example, when surfing the Internet, it is very important to know the channels for obtaining information and the relevance of information to yourself. If you are a party, you should also consult a professional before posting relevant information online, if there is no way to defend your rights. " Lawyer's case: Anonymous posting on the Internet insults and slanders others, publishes platforms or assumes joint liability. In the network era, it is extremely important to improve the protection of reputation right in view of network rumors and network violence. Lawyers shared a case: Mr. A registered an account on the website operated by Company B, and anonymously posted and uploaded a number of posts related to insulting and slandering Li on the website, all of which were accompanied by Li's real name, photo, work unit and contact information. After the above posts were published, they were browsed and paid attention by a large number of users, which caused serious damage to Li's reputation, exerted great pressure on his spirit and seriously affected Li's normal life and work. Subsequently, Li wrote to Company B, demanding that the above posts be deleted immediately and providing the real identity information of the poster. However, Company B didn't delete the related posts until a few days after receiving the letter, but it didn't respond to the request for providing Mr. A's real identity information. Li then filed a lawsuit with the court, arguing that Mr. A and Company B had infringed on his reputation, and asked the court to order Company B to bear corresponding joint and several liabilities and pay mental damages, and at the same time provide Mr. A's identity information. According to the lawyer's analysis, according to the first item of Article 1024 of the Civil Code, "the civil subject enjoys the right of reputation. No organization or individual may infringe upon the reputation of others by insulting or slandering. " In this case, Mr. A used words insulting and slandering Li in his post, and attached Li's real identity information, which was enough to infringe Li's reputation right; Combined with the high number of views of these posts and the rapid spread of network information, Mr. A's posts are enough to mislead others and make a negative evaluation of Li's moral quality, which leads to the reduction of Li's social evaluation. In addition, according to the provisions of the Civil Code: "Internet users and network service providers who use the Internet to infringe upon the civil rights and interests of others shall bear tort liability." Company B is at fault for expanding the damage to Li's reputation right, and should bear corresponding joint liability. Lawyer's case: after consumption, users make "bad reviews" and businesses "retaliate" or infringe on consumers' reputation rights, which is not only reflected in individuals, but also in enterprises. If a customer writes his own comments on an online consumption platform, the merchant is dissatisfied with the customer's "bad comments" and even leaves a message "mutual comments" at the bottom of the comments. Do the two parties infringe on each other's reputation? Does the platform have certain responsibilities? Judge Li Jing from the First People's Court of Zhongshan shared a real case. As the operator of a catering company, Company A found an "eye-catching" comment in the comments of a consumer platform. Consumer "Netizen B" commented on the huge price difference before and after a consumer product and made a "bad review". Company A believes that they deleted the previous promotion activities on an online consumption platform in accordance with the requirements of epidemic prevention and control in key places issued by the government; After that, the government issued a notice of "orderly opening", and "User B" took the platform promotion coupons purchased before taking them off the shelf and consumed them, which made them unusable. The comments of "Netizen B" are "untrue" and have always existed on the online consumption platform. The number of views is increasing every day, which infringes on the reputation right of Company A and reduces the turnover. Therefore, the online consumer platform company was brought to court, demanding that the platform delete "untrue" remarks and apologize to compensate for economic losses. In this regard, Li Jing citizen judge introduced that whether consumer comments are infringing or not, first of all, it is necessary to examine whether the published content has certain factual basis. If the published content is seriously inaccurate in order to damage the reputation of the merchant by fabricating facts, then it should be considered that it has been infringed; If the problems reflected by consumers are basically true, and there is no opportunity to insult, slander or vilify businesses, it should not be considered as infringement. How many comments read online constitute reputational damage? Judge Li Jing citizen said that the law does not clearly stipulate that the number of comments and readings constitutes reputational damage, but the online platform is a highly open platform for information, with the characteristics of fast dissemination and wide range. Whether the reputation is damaged is generally judged by the standard of "reasonable third party". In addition, she reminded that if merchants take the opportunity to insult, slander and vilify consumers when "replying" under the comments of netizens, it may also constitute infringement. She reminded netizens that the Internet is not a place of extra-legality. Be careful on the internet and don't touch the legal red line. After discovering that online comments are suspected of infringement, we should keep the evidence in time. Lu Zhaosheng judges' right to protect privacy has increased, most of which is to disclose other people's information. Since the arrival of the media era and the era of big data, "the protection of privacy and personal information" has also become the focus of public attention. According to Judge Lu Zhaosheng of the First People's Court of Zhongshan City, before the promulgation of the Civil Code, the privacy cases accepted by the court were mainly manifested as "making other people's personal information and private activities public", but there is no clear regulation on whether the peace of personal private life belongs to the scope of privacy and whether infringing on the peace of life of others constitutes infringement. After the implementation of the civil code, the situation is different. There is a clear legal basis for handling such cases, and the court decision is more "emboldened". As an ordinary person, we should raise our awareness of protecting personal information security in our daily life and pay attention to keeping important personal information; When an invasion of privacy occurs, evidence can be obtained by means of recording and shooting, and it can be reported to the relevant departments in time to actively safeguard the legitimate rights and interests through legal means. As a network operator, the collection and use of citizens' personal information should follow the principles of legality, justice and necessity, and strengthen the protection of users' personal information, privacy and business secrets. Case: Harassment after breaking up threatens the woman and the man to invade the woman's privacy. Judge Lu Zhaosheng shared a case in which a couple introduced by someone broke up three days later, but the man threatened and harassed the woman for months by phone, WeChat and SMS. And involves the woman's family. The woman finally took the man to court. According to the records provided by the woman, after the breakup, the man repeatedly harassed and threatened the plaintiff and his family by telephone, SMS, WeChat, etc., and even made her photos and information into small business cards and uploaded them online. In addition, the woman said that the man also obtained the address information of the woman through the courier station and left it at the door of the woman's house, and repeatedly called his father and brother through different phone numbers. According to article 1032 of the Civil Code, natural persons have the right to privacy. No organization or individual may infringe upon the privacy rights of others by spying, harassing, exposing or making public. Privacy is the private space, private activities and private information that natural people live in peace and don't want to be known by others. In the end, the court ordered the man to stop harassing and threatening the woman by phone, text message, WeChat and other forms, and made a written apology to the woman and paid her mental damage compensation 5,000 yuan. Case: The "Privacy Policy" of the APP clipboard reading user information does not indicate infringement. Previously, there was a case in Guangzhou Internet Court: when the party Lin used the "Good Buy" APP operated by the "Good Buy" company, he found that the APP had no user's consent. Monitor and collect the information of mobile phone clipboard, and also provide the self-compiled "Information Technology Analysis Report on Reading Clipboard by Haobu APP" and the appraisal opinion issued by judicial appraisal. The above report results and appraisal opinions are that app has the function of monitoring the clipboard of mobile phones. When the application detects that there is data on the clipboard, it will automatically get all the data. Lin believes that the clipboard can store personal ID number, mobile phone number, photos and other information related to privacy, but the privacy policy of APP does not collect the relevant instructions of mobile phone users' clipboard information, which infringes on their personal information rights and privacy rights. Therefore, the "Good Buy" company was sued to the Guangzhou Internet Court, demanding that the company stop the infringement, delete the information, apologize and compensate for the mental loss. It was found through trial by the court that the court confirmed that the "Good Buy" company monitored and read the clipboard information without Lin's permission, which was an act of infringing on Lin's virtual private space through technical means, and led to Lin's private information being in an unsafe state, infringing on the privacy rights of the parties. However, this behavior did not cause serious mental loss to Lin. Therefore, the company finally decided to issue a written apology statement within ten days from the date when the judgment became legally effective. It is understood that on September 26th, 20021year, Guangzhou Internet Court established the first professional collegial panel involving data disputes in China. Since its establishment three months ago, it has tried 72 cases involving data disputes; According to statistics, Guangzhou Internet Court has accepted more than 600 data-related disputes since its establishment three years ago. Personal information is usually leaked in the Internet field. In this regard, lawyers suggest that once discovered, the masses should first adopt legal and effective evidence collection methods, such as "blockchain storage" or "trusted timestamp" to save and fix evidence to prevent evidence loss; Secondly, for information disclosure that has affected personal life, we should actively take personal statements, letters and other ways to claim rights and interests. On the one hand, the leaker or abuser is required to take emergency measures against the leaked personal information, and the undisclosed personal information is required to be deleted. On the other hand, it also reminds surrounding relatives and friends not to be deceived; Finally, according to the actual impact of information leakage, the masses can file infringement lawsuits or report complaints to local online letters and relevant departments. When different rights cross-contact, the damage of personality right is difficult to quantify. In practice, it is sometimes not easy to safeguard the personality rights of the parties. Feng Yuping suggested that citizens should actively retain or obtain "substantial evidence" when their personal reputation or privacy rights are infringed, such as WeChat forwarding information in the era of big data, monitoring information of property management offices or public places, etc., and fix the evidence through notarization to prevent infringers from deleting it later, which makes it difficult to identify the infringement facts. "It is not recommended to save evidence only through mobile phone or computer screenshots, because when the infringer deletes the content, the screenshots cannot be checked with the original evidence source." In the absence of "substantial evidence", the current judicial practice will also provide relief through other channels. Case: Find 20 "personality witnesses" to prove that he is not a mistress. Feng Yuping once handled a case. Before the implementation of the Civil Code, a client found him and claimed that the defendant had visited the client's unit or even the superior unit many times, claiming that the client was her husband's mistress, but in fact the client was not a mistress. The infringer's behavior has a great impact on the work and life of the parties. In order to eliminate the influence, the parties entrusted Feng Yuping to sue. "This is also a common phenomenon in practice. Usually, in tort, different rights in personality rights will cross and touch. For example, in libel and libel, the right of reputation and honor are violated at the same time; When disclosing other people's information, it also violates the right of reputation, privacy and portrait. Among them, different rights have different difficulties and attributes in obtaining evidence. " "First of all, it is difficult to actually obtain evidence, and the parties have no way to prove that they have not done anything. This is also the difference between reputation right and property right and health right. Therefore, the process of obtaining evidence often tests the ability and thinking of lawyers. " In the end, Feng Yuping found nearly 20 colleagues in the same unit and the leaders directly under him as "personality witnesses" and witnesses to prove the character and moral character of the parties concerned, and finally won the case. "Second, the right of personality is damaged, especially the right of reputation, and the damage caused to the parties cannot be quantified. In contrast, the right to portrait or name is often easier to have quantitative standards. For example, if an enterprise sells products in a way that infringes on the portrait rights of the parties, the income can be quantified; However, the loss of reputation cannot be quantified, and it takes a long time for the parties to restore their reputation; Third, the right of reputation is difficult to enforce. " Feng Yuping said that despite the final victory, the lawsuit lasted for one year, which consumed a lot of time and economic costs. Case: Applying for an injunction to stop the infringement of personality rights can stop the infringement of personality rights in time. In the face of spreading rumors and publishing others' privacy, besides litigation, what other ways should we take to minimize the losses? Feng Yuping reminded that it is one of the most effective ways to adopt a timely protection mechanism for violations of personality rights. For the first time, the Civil Code stipulates that the civil subject has the right to apply to the court to order the actor to stop the relevant infringement according to law, which can be said to smooth the "relief channel" of personality rights and stop the ongoing or upcoming infringement of personality rights in time. 20216543814 October, Guangzhou internet court received the first application for "stopping the infringement of personality rights" in China, and the applicant was from a real estate company. From May to August, 2020, Li published articles 10 about a real estate company through his registered official account of WeChat, which contained uncivilized terms against the company. Subsequently, the real estate company filed a lawsuit with the Guangzhou Internet Court on the grounds that Li infringed his reputation, and applied to the Guangzhou Internet Court for an injunction against infringement of personality rights on 2002114, requesting that Li be prohibited from publishing/repeatedly publishing articles and remarks infringing the company's reputation rights on a self-media platform. Li Peng, the presiding judge, explained that in combination with the characteristics, effectiveness and influence of the injunction, four factors were comprehensively considered to judge whether the application for the injunction against infringement of personality rights was passed: the right of the applicant to request protection should belong to his personality right according to law; Persistence of infringement; Realistic urgency; Interest measurement. In the end, the Guangzhou Internet Court, after full consideration, balanced the protection of the legitimate rights and interests of both parties and rejected the application of the real estate company. In another case, Zhou and Zhang were colleagues and quarreled many times because of disagreement at work. One day, Zhou found a lot of notes posted on the wall of the community, which said his bad lifestyle. By accessing the surveillance video of the community, Zhou found that the small note was posted by Zhang at different times. Zhou failed to find Zhang's theory, and finally filed an application with the court, demanding that Zhang immediately stop infringing on the right of reputation. After trial, the court finally ordered Zhang to stop the infringement immediately. It can be seen that "the prohibition of stopping the infringement of personality rights" emphasizes the urgency, seriousness, irretrievability and irreversibility of the damage; At the same time, whether to prohibit the balanced protection between the applicant's personality right and the basic rights of others emphasizes the necessity of prohibition. In addition, Feng Yuping reminded that "stopping the prohibition of infringing on personality rights" can be applied not only to the infringement of reputation rights, but also to the infringement of body rights, health rights and privacy rights.