Zhongqing Online, Beijing, September 28th (China Youth Daily, Zhongqing Online reporter Wang Yijun) The reporter was informed today that the Yanta District People’s Court of Xi ‘an, Shaanxi Province today publicly pronounced a first-instance judgment on the case that Ye Zhengguang, Ye Daying, Ye Tiejun, Ye Xiaomei, Ye Xiaoyan, Ye Wen and Ye Min, close relatives of Ye Ting martyrs, sued Xi ‘an Momo Information Technology Co., Ltd. (hereinafter referred to as "Xi ‘an Momo Company") for reputational infringement, and ruled that Xi ‘an Momo Company publicly apologized in the national news media.
The court found through trial that on May 8 this year, the defendant Xi ‘an Momo Company published a short video with a duration of 1 minute and 09 seconds on Today’s Headline through its self-media account "Runaway Comics". The content of this video will lock the door for people to get in and out of the Ye Ting martyr’s "Prison Song", open the hole for dogs to climb out, and a voice shouted, climb out and set you free! " The door for people to enter and leave is locked! The hole for the dog to climb out is open! A voice shouted! Climb out! Painless abortion! " . After the video was released on the Internet platform from May 8, 2018 to May 16, 2018, many news media reprinted it, which aroused public concern and hot discussion on the Internet, causing adverse social impact and consequences in a certain range.
The court held that the "Prison Song" written by Ye Ting martyr in prison after the Southern Anhui Incident fully reflected the indomitable revolutionary will and unswerving political belief of Ye Ting martyr, and the lofty revolutionary integrity and great patriotic spirit displayed by him have been widely recognized by the whole nation, which has become a part of the common memory of the Chinese nation, an important part of the precious spiritual wealth and socialist core values of the Chinese nation, and also the basis for Ye Ting martyrs to enjoy a high reputation. The video produced by Xi ‘an Momo Company tampered with the contents of "Prison Song", desecrated the fearless revolutionary spirit of Ye Ting martyrs and damaged the reputation of Ye Ting martyrs, which not only caused mental pain to the relatives of Ye Ting martyrs, but also hurt the national and historical feelings of the public and harmed the public interests. Therefore, the above behavior of the defendant Xi ‘an Momo Company has constituted a reputation infringement.
The court made the above judgment in accordance with the General Principles of the Civil Law of People’s Republic of China (PRC), the Tort Liability Law of People’s Republic of China (PRC), and the Law of People’s Republic of China (PRC) on the Protection of Heroes and Martyrs.
Ye Zhengguang, a close relative of Ye Ting martyr, and others v. Xi ‘an Momo Information Technology Co., Ltd.
1. What is the relationship between the seven plaintiffs and Ye Ting in this case?
A: Plaintiff Ye Zhengguang is the son of Ye Ting, Plaintiffs Ye Daying and Ye Tiejun are grandchildren of Ye Ting, Plaintiffs Ye Xiaomei, Ye Xiaoyan, Ye Wen and Ye Min are granddaughters of Ye Ting.
2. What are the main pleadings of the original defendant in this case? Can you briefly introduce the trial process?
A: On May 24, 2018, the plaintiffs Ye Zhengguang, Ye Daying, Ye Tiejun, Ye Xiaomei, Ye Xiaoyan, Ye Wen and Ye Min sued the defendant Xi ‘an Momo Information Technology Co., Ltd. (hereinafter referred to as Xi ‘an Momo Company) to the Yanta District People’s Court in Xi ‘an on the grounds that the defendant infringed on Ye Ting’s reputation. Their litigation requests were: 1. Order the defendant to stop infringing on Ye Ting’s heroic deeds and spirit; 2. Order the defendant to publicly apologize to the plaintiff in writing in the national media; 3. The defendant was ordered to compensate the plaintiff for mental comfort totaling 1 million yuan.
Defendant Xi ‘an Momo Company believes that: 1. The defendant has no intention to infringe Ye Ting’s reputation subjectively. The video program comments on the unhealthy social phenomenon of "implanting hospital advertisements in primary school textbooks" reported by People’s Daily and other media in an ironic way, and explicitly opposes the disorderly implantation of advertisements in primary school textbooks. The defendant inappropriately quoted Ye Ting’s works in the process of video creation, which caused emotional and spiritual harm to the plaintiff. The defendant sincerely apologized for this. 2. For some media reports that are out of context and mislead the public, the defendant hopes to explain his original intention of creating the video through a complete video presentation. 3. Based on the high respect for revolutionary martyrs, after the incident, the defendant actively communicated with the media to clarify the facts to the public; Actively apologize to the plaintiff and try to eliminate the influence.
On June 12, 2018, the Yanta District People’s Court of Xi ‘an organized the parties to the case to hold a pre-trial meeting. Through the pre-trial meeting, the original defendant and the defendant exchanged evidence and made clear the focus of the case dispute.
On July 15, 2018, the Yanta District People’s Court of Xi ‘an applied ordinary procedures to publicly hear the case. The plaintiff entrusted agents ad litem Feng Zhentao and Lian Gaobo and the defendant Xi ‘an Momo Company entrusted agent ad litem Li Xuesong to attend the proceedings.
On September 28, 2018, the Yanta District People’s Court of Xi ‘an publicly pronounced the case.
3. What are the main contents of Ye Ting’s "Prison Song"?
A: Ye Ting is the founder of China People’s Liberation Army and one of the important leaders of the New Fourth Army. He is a famous strategist at home and abroad. According to historical records, in January 1941, Ye Ting was illegally arrested by the Kuomintang during the Southern Anhui Incident, and was imprisoned in Shangrao, Jiangxi, Enshi, Hubei, Guilin, Guangxi and other places, and finally transferred to the concentration camp of Sino-US Institute for Special Technical Cooperation in Chongqing. In prison, Ye Ting suffered all kinds of hardships, but remained faithful and unyielding. In 1942, he wrote this song "Prison Song". The poem was written by Ye Ting on the wall of the second cell downstairs of the imprisoned Chongqing Zhazidong concentration camp, and the manuscript was brought out by Li Xiuwen, the wife of Ye Ting, when she visited the prison. On April 8, 1946, Ye Ting flew back to Yan ‘an from Chongqing. The plane crashed near Heicha Mountain in Xing County, Shanxi Province and was killed.
The full text of "Prison Song" is:
The door for people to enter and leave is locked,
The hole for the dog to climb out is open,
A voice shouted:
Climb out and set you free!
I long for freedom,
But I deeply know — —
How can a human body climb out of a dog hole!
I hope that one day,
Underground fire,
Burn me and this living coffin together,
I deserve eternal life in fire and blood!
4. How do Chinese laws protect the reputation of heroic martyrs?
A: According to China’s General Principles of Civil Law, Tort Liability Law, Protection of Heroes and Martyrs Law and relevant judicial interpretations in the Supreme People’s Court, after the death of a natural person, his personal interests before his death, including his name, portrait, reputation and honor, are still protected by law. Article 185 of the General Principles of Civil Law of People’s Republic of China (PRC) stipulates that anyone who infringes on the names, portraits, reputations and honors of heroes and martyrs and harms the public interests shall bear civil liability. The first and second paragraphs of Article 22 of the Law on the Protection of Heroes and Martyrs stipulate that it is forbidden to distort, vilify, blaspheme or deny the deeds and spirit of heroes and martyrs. The names, portraits, reputations and honors of heroic martyrs are protected by law. No organization or individual may insult, slander or otherwise infringe upon the names, portraits, reputations and honors of heroic martyrs in public places, on the Internet or by using radio and television, movies and publications. No organization or individual may use the names and portraits of heroic martyrs for trademarks or commercial advertisements in disguised form, thus damaging the reputation and honor of heroic martyrs. According to the relevant provisions of the Supreme People’s Court’s Answers to Several Questions on the Trial of Reputation Rights Cases, if the reputation of the deceased is damaged, his close relatives have the right to bring a lawsuit to the people’s court. According to Article 3 of the Supreme People’s Court’s Interpretation on Several Issues Concerning Determining the Liability for Compensation for Spiritual Damage in Civil Torts, the name, portrait, reputation and honor of the deceased are infringed by insulting, slandering, derogating, uglifying or other ways that violate social public interests and social morality, and their close relatives suffer mental pain due to the infringement.If a lawsuit is brought to a people’s court for compensation for mental damage, the people’s court shall accept it according to law. Specific to this case, Ye Ting has passed away, and the seven plaintiffs, as close relatives of Ye Ting, have the right to file a civil lawsuit against the perpetrator who violated Ye Ting’s reputation.
5. What are the infringements of the defendant Xi ‘an Momo Company?
A: On May 8, 2018, the defendant Xi ‘an Momo Company published a short video with a duration of 1 minute and 09 seconds on Today’s Headline through its self-media account "Runaway Comics". In this video, the "Prison Song" written by martyr Ye Ting before his death: "The door for people to go in and out is locked, the hole for dogs to climb out is open, and a voice screams, climb out and set you free" is changed to "The door for people to go in and out is locked, the hole for dogs to climb out is open, and a voice screams, climb out and there is no pain in people’s flow". The video of 1 minute and 09 seconds involved in the case was widely spread on the Internet, causing public concern. On May 16, 2018, "Today’s Headlines" removed the relevant videos and banned the account "runaway comics". Subsequently, video websites such as Youku, Iqiyi and Tencent Video also made similar treatments.
6. Is there any subjective fault in the defendant’s act of making and uploading the video involved?
A: Under normal circumstances, the fault in the case of infringement of reputation or reputation right refers to the subjective state of knowing or should have foreseen the consequences of others’ social evaluation, but still doing it or thinking it can still be avoided. In the case of infringement of reputation or the right to reputation, the determination of the fault of the actor is often based on the cognition of ordinary people, supplemented by objective factors such as social common sense, the occupation or specialty of the actor and the cost of controlling the harm.
In this case, the defendant, as a self-media operator, especially as an information technology company with certain network creation ability and skillful use of Internet tools, should fully realize the spiritual value embodied in Prison Song, and should foresee that the production and dissemination of the video involved in the case will damage Ye Ting’s reputation and also cause emotional and spiritual harm to his close relatives. In this case, the defendant has the ability to control the possible damage consequences of the video without control, and still publishes and uploads it in the existing state, which is obviously subjectively wrong.
7. Did the defendant’s tort infringe on the public interest while infringing on Ye Ting’s reputation?
A: The Prison Song written by Ye Ting martyr in prison after the Southern Anhui Incident fully embodies Ye Ting’s indomitable revolutionary will and unswerving political belief. The lofty revolutionary integrity and great patriotism shown in this poem have been widely recognized by the whole nation, which is a part of the common memory of the Chinese nation, a precious spiritual wealth of the Chinese nation, a manifestation of socialist core values, a part of social public interests, and the basis for Ye Ting to enjoy a high reputation. In this sense, the video involved in the case not only infringes on Ye Ting’s personal reputation, but also infringes on the social public interests that are integrated by the reputation of heroes.
8. What tort liability should the defendant bear?
A: According to the General Principles of the Civil Law, Tort Liability Law and other laws, the defendant shall bear the corresponding tort liability for his acts of infringing the reputation of the deceased, especially the heroic martyrs. By stopping the infringement, eliminating the influence, making an apology, and making compensation for spiritual comfort, the law makes up for the decrease of the social evaluation of the deceased and the mental pain suffered by his close relatives due to the infringement. In this case, the seven plaintiffs asked the defendant to stop the lawsuit against the heroic deeds and spiritual behavior of Ye Ting martyrs. After investigation, before the seven plaintiffs sued, the video involved in the case released by the defendant was removed from the "Today Headline" platform and the account of "runaway comics" was banned, and the infringement was stopped. The plaintiff asked the defendant to publicly apologize in the central news media. Although the video involved in the case released by the defendant has been removed from the shelves, and the defendant also apologized to the plaintiff in the form of "A Letter to General Ye Ting’s Family", the objective infringement of Ye Ting’s reputation has caused serious social impact, and the defendant should formally apologize in the national media to eliminate the adverse social impact caused by his infringement. The plaintiff asked the defendant Xi ‘an Momo Company to pay compensation of 1 million yuan, and the court determined that the defendant paid 100,000 yuan to the plaintiff as appropriate.
9. How did the court determine the amount of spiritual comfort in this case?
According to the Supreme People’s Court’s Interpretation on Several Issues Concerning Determining the Liability for Compensation for Spiritual Damage in Civil Torts, the amount of compensation for mental damage is determined according to the following factors: the degree of the infringer’s fault, the specific circumstances of the infringement, the consequences caused by the infringement, the infringer’s profit, the infringer’s economic ability to take responsibility and the average living standard of the place where the court is located. In this case, the defendant, as a media operator, should be fully aware of the spiritual value embodied in "Prison Song", and should foresee that improper tampering with the production and dissemination of "Prison Song" will damage Ye Ting’s reputation and also cause emotional and spiritual harm to his close relatives, and his subjective fault is obvious. At the same time, the video involved in the case released before the lawsuit has been taken off the shelf, and the defendant also apologized to the plaintiff in the form of "A Letter to General Ye Ting’s Family". He also truthfully admitted the infringement facts in court and expressed his apologies in court. The court comprehensively considered the relevant factors in combination with the specific circumstances of the case, and at the same time, in order to reflect the punishment and warning of the defendant’s infringement, it was determined that the defendant paid 100,000 yuan to the seven plaintiffs as appropriate.
10. What are the significance and enlightenment of this case?
A: The rapid development of network culture not only enriches people’s spiritual and cultural life, but also brings a series of legal problems. The video involved in the case has tampered with the content of Prison Song and spread rapidly through the network platform, which has aroused great concern of the media, public opinion and the masses about the reputation of heroic martyrs. How to protect the reputation of heroic martyrs has become a hot issue in society. A fair and efficient trial of this case is not only a requirement to achieve fairness and justice in individual cases, but also an important means to regulate people’s online behavior, control illegal online phenomena and protect citizens’ legitimate civil rights and interests by means of the rule of law, which has an important demonstration and guiding role in maintaining the glorious image of heroic martyrs, advocating heroes, admiring martyrs and carrying forward socialist core values according to law.
The reputation of heroic martyrs cannot be profaned. Network creation should not infringe upon the legitimate rights and interests of others, but should be based on the social public interests and national interests, and it is also the social responsibility that any citizen and market subject should bear. In this case, Ye Ting’s "Prison Song" embodies the revolutionary dauntless spirit, and the national historical memory condensed by the content of "Prison Song" is an important source and part of the core values of contemporary China society, bearing the common memory of several generations of the Chinese nation, and is also an indispensable spiritual core of China as a nation-state. Although the defendant argued that the original intention of creating the video involved in the case was to satirize the unhealthy phenomenon that a large number of advertisements were implanted in primary and secondary school textbooks in society, as an online media operator, he should fulfill a high degree of duty of care, and should be awed, strictly observe the bottom line, respect history and promote righteousness when creating online.
The acts involved in the case and similar acts frequently occurring on the Internet in recent years not only infringe on the personal dignity of revolutionary martyrs and their descendants, but also seriously hurt the national and historical feelings of the public. As a people’s court, when handling such cases of infringement of reputation disputes, it should strictly abide by legal procedures, accurately apply the law, punish and stop illegal acts that infringe on the personal interests of revolutionary martyrs, demonstrate judicial credibility, safeguard social public interests, and realize the organic unity of legal and social effects.
