Full text of the judgment of Hongmao medicinal liquor v. Shanghai lawyer

Inner Mongolia Hongmao Chinese Medicine Co., Ltd. and Chengyuan's right of reputation dispute first-instance civil judgment

Minhang District People's Court of Shanghai.

Case number: (20 18) Hu 0 1 12 No.9577 in the early Republic of China.

Referee date: 20 18.06. 13.

Cause of action: civil > personality right dispute > personality right dispute > reputation right dispute.

Shanghai Minhang District People's Court

paper of civil judgment

(20 18) Hu 0 1 12 No.9577 in the early Republic of China.

Plaintiff: Inner Mongolia Hongmao Chinese Medicine Co., Ltd., domicile: Jiuyuan Road, Jianshe Street, Daihai Town, Liangcheng County, Wulanchabu City, Inner Mongolia Autonomous Region.

Legal Representative: Bao Hongsheng, board chairman. Authorized Agent: Ji, lawyer of Beijing Yingke Law Firm.

Defendant: Cheng Yuan.

The case of the dispute between the plaintiff Inner Mongolia Hongmao Sinopharm Co., Ltd. (hereinafter referred to as Hongmao Sinopharm) and the defendant Cheng Yuan's reputation right was filed in our hospital on March 18, 2008, and the trial was held in public according to the summary procedure. Ji, the litigation agent of the plaintiff Hongmao Sinopharm, and Cheng Yuan, the defendant, attended the proceedings. The case has now been closed.

Hongmao Chinese Medicine sued our hospital: 1. The defendant was ordered to immediately delete the content of "Law 10 1" on WeChat WeChat official account, and issued an apology letter of "Law 10 1" on WeChat WeChat official account, requiring the defendant to publish an apology letter on CCTV 1 and People's Daily. 2. Order the defendant to compensate the plaintiff for the loss of goodwill caused by its infringement 1 yuan; The defendant was sentenced to bear the legal costs of this case. Facts and reasons: On March 6, 2008, 2065438, the defendant published an article entitled "Hongmao Medicinal Liquor with Bad Advertising History Won the National Brand Plan of CCTV" on the "Red Shield Forum" run by WeChat official account and others. Whose face did he hit? The article (hereinafter referred to as the article involved in the case) has sharp words and runs counter to the facts. The article is aimed at the brands of "Hongmao medicinal liquor" and Hongmao traditional Chinese medicine, which seriously infringes on their reputation rights. The specific contents are as follows: 1. The title of the article is "Hongmao Medicinal Liquor with Bad Advertising History", which not only goes against the facts, but also misleads readers, slanders the goodwill of Hongmao Chinese medicine and devalues the brand image of "Hongmao Medicinal Liquor". Secondly, the article begins with "[exposing] these typical false advertisements of 12 that are suspected of violating the law and have been investigated and dealt with according to law", indicating that Shanghai Industrial and Commercial Bureau has published a classic case of 20 12 false advertisements on the official WeChat account of Shanghai Municipal Government. After investigation, the article entitled "These 12 typical false advertisements are suspected of breaking the law and have been investigated and dealt with according to law" was published on the official WeChat account on February 27th, 20 18. The article mentioned "12 typical false advertisement", but this 12 did not include "Hongmao medicinal liquor". After the publication of the article, as of 23: 00 pm on March 7, 20 18, the reading volume has reached 10506 times, which seriously violated the plaintiff's reputation right. The defendant's behavior seriously violated the plaintiff's reputation right and caused great losses to the plaintiff, so the plaintiff sued the court, demanding that the defendant stop the infringement, apologize and compensate the plaintiff for the loss of goodwill.

During the trial, the plaintiff confirmed that the defendant did not publish the articles involved in the case in CCTV 1 and People's Daily, but still insisted that the defendant publish an apology letter in one of the two media.

Cheng Yuan argued that he did publish the articles involved in the case, and the articles were indeed reprinted by the Red Shield Forum, but he did not recognize the amount of reading advocated by the plaintiff. Proved by authoritative media reports, documents issued by the industrial and commercial departments, and punishment decisions. On this basis, the article is a comment on relevant social phenomena, which is justified and does not constitute infringement and illegality. There is no doubt that the plaintiff's advertising history is flawed, which is a fact. It is confirmed that 12 typical false advertisements suspected of breaking the law do not include Hongmao medicinal liquor, but it is also clearly written in the article that comments on Hongmao medicinal liquor are all messages left by netizens and are not misleading. Concerned that "these 12 typical false advertisements are suspected of breaking the law and have been investigated and dealt with according to law", the article message involves Hongmao medicinal liquor, so I was inspired to write the article involved. The facts stated in this paper are not examples of illegal drug advertisements, but questions that the food and drug supervision and management departments are too lax in examination and are suspected of violating regulations. The article involved is not directed at the plaintiff or anyone, but a legal analysis of the behavior. The facts quoted in this paper are only a small part, and they come from authoritative media, which are comments on behaviors and questions the practices of relevant administrative departments, food and drug supervision departments, CCTV and advertising review and broadcasting departments, and should belong to the scope of freedom of speech. If the plaintiff's behavior is justified, he should put up with such social criticism.

The plaintiff provided the following evidence to prove his claim:

1, (20 18) Notarial Certificate No.2. Jingzhengyang Neiminzheng Zi 1489, which notarized the contents of the defendant's official WeChat account "Fa 10 1" to prove that the defendant signed "Fa/kloc" on the official WeChat account. "False article, the operating subject of WeChat official account" Law 10 1 "is the defendant in this case;

2. Three notarial certificates (No.:(201490/14911492), certifying that as of March 7, 2008, the law was 108. Prove that the above-mentioned articles of the defendant are widely spread in the network and can be searched on different search engines;

3. The official account of WeChat WeChat exposed 12 typical false advertisements in Shanghai, which was the title quoted by the defendant, proving that 12 cases of false advertisements did not involve Hongmao medicinal liquor;

4. The Drug Advertisement Examination Form issued by the US Food and Drug Administration in Inner Mongolia, which proves that the plaintiff's advertisement is legal and compliant.

Judicial expertise opinion, which proves that the law 10 1 was operated by the defendant and the article was published by the defendant, with the same purpose as the evidence 1.

The defendant made the following cross-examination on the evidence provided by the plaintiff:

Acknowledge the authenticity of the evidence 1. The "Fa 10 1" on the official account of WeChat is indeed operated by itself, and the title is "Hongmao Medicinal Liquor with a history of bad advertising won the" CCTV National Brand Plan ". Whose face did you hit? The article involved was also written by himself, and the content has not been revised. He did publish it, and he is responsible for it. As of the day when the notarial certificate was issued, the reading volume of this article was only 9 15 times;

Evidence 2 confirmed the authenticity, and confirmed that Hongmao medicinal liquor with a history of bad advertising won the national brand plan of CCTV. Whose face did you hit? He wrote the article himself, and the Red Shield Forum did reprint it. Since this article was published on the official WeChat account, it can naturally be searched online. The reading volume of Red Shield Forum is also 982 1, which is inconsistent with the plaintiff's claim;

Acknowledge the evidence 3, which is consistent with the evidence 1 provided by it;

Evidence 4 is true, but according to the provisions of the Advertising Law, drug advertisements can only be released after examination, and representatives can only be released after examination, but it does not mean that they are legal. The investigation department of advertisements is the food and drug supervision department, but the examination department of illegal advertisements is the industrial and commercial department. If the industry and commerce department considers that the drugs advertised are illegal after examination, it can also be punished. This evidence is irrelevant to this case. The fact stated in his article is not an example of illegal drug advertisements, but a question that the food and drug supervision and administration department has been too lax in examination and there are many suspects of illegal activities. This is not directly related to the facts claimed by the plaintiff;

Evidence 5 found that Hongmao medicinal liquor with a history of bad advertising won the "CCTV National Brand Plan". Whose face did you hit? The article involved was written by himself.

The defendant Cheng Yuan provided the following evidence to prove his point of view:

1. 1. Shanghai Oriental Notary Office (20 18) Hudong Zhengzi No.2424, which proves that the defendant published the articles involved; The online comments quoted by the defendant in the articles involved in the case came from the article "[Exposing] these 12 typical false advertisements suspected of violating the law" published by WeChat official account on February 27th, 2008. The data and facts cited by the defendant in the article involved are in the official account of the authoritative media "The Paper" WeChat WeChat "Shapu Aisi? Hongmao medicinal liquor refuses to accept: there is a public report in the article "7 years 1 167 advertising approval";

2. Notarization fee invoice, which proves the defendant's expenses for evidence preservation 1, 800 yuan;

3. Authoritative media "surging" publishing "Who is giving the green light to the advertisement of" illegal addiction "? The website of this article is surging, which proves that the data and facts cited by the defendant in the article involved are all quoted from authoritative media;

4. The blog of Caijing Tianxia Weekly published Liu's article, "Hongmao Medicinal Liquor 10 was notified 2600 times in violation of regulations, and the annual retail sales were1600 million, but it took1500 million to advertise? The article comes from the internet, which proves that the data and facts cited by the defendant in the article involved in the case are all quoted from authoritative media. The article claims that the advertisement violation of Hongmao medicinal liquor can be rated as Guinness Book of Records; In his own article, the defendant also quoted what the media called the Guinness Book of Records.

5. Weibo, an authoritative media, published the article "Repeated offenders give green lights", "Shenyao" and "Shenjian", which came from Weibo, the Beijing News, to prove that the data and facts cited by the defendant in the article involved were all quoted from authoritative media, and it was also called that the advertising behavior of Hongmao medicinal liquor was "bad";

6. The article "Advertisement of Hongmao medicinal liquor has been investigated repeatedly, but it does not converge" originated from the B0 1 edition of China Consumer News on March 5, 20 10 (the printed article originated from China HowNet database, and the copy originated from Shanghai Library), which proved that many illegal advertising behaviors and various illegal types of Hongmao medicinal liquor were widely reported by news media all over the country.

7. The article "Advertising Mad" Hongmao medicinal liquor is not up to standard, which comes from1October 8th, beijing business today Today 20161edition (the printed article comes from China HowNet database, and the copy comes from Shanghai Library), which proves that Hongmao medicinal liquor has a variety of illegal advertising behaviors all over the country.

8. The article "Hongmao medicinal liquor was ordered by the US Food and Drug Administration in Korla to stop selling" came from the C 16 edition of China Business News (September 20, 200612), which proved that many illegal advertising behaviors and various illegal types of Hongmao medicinal liquor were widely reported by the national news media.

9. The article "Chaos of Hongmao Medicinal Liquor in Jianghu" comes from the 24th edition of China Times on March 6th, 20 10 (the printed article comes from China HowNet database, and the copy comes from Shanghai Library), which proves that many illegal advertising behaviors and various illegal types of Hongmao medicinal liquor have been widely reported by the news media;

10, the article "False advertising overdraft marketing Hongmao medicinal liquor or returning to the old road" comes from the 20th edition of China Times on April 4th, 2009. (The printed articles are from China HowNet database and the copy is from Shanghai Library), which proves that many illegal advertising behaviors and various illegal types of Hongmao medicinal liquor have been widely reported by the national news media.

1 1, "2630 advertisements are illegal, but advertisements exceeding 1034 are approved. Who is the amulet of Hongmao medicinal liquor? " From the 3rd, 23rd and 24th editions of Health Times 2065438+August 25th, 2007 sponsored by People's Daily. (The printed article comes from China HowNet database, and the copy comes from. The report that Hongmao medicinal liquor was "2630 times illegal" quoted in the defendant's article originated from this article;

12. The official documents and announcements (attached directories) about illegal advertisements of Hongmao medicinal liquor published by some provincial food and drug supervision and management departments on their official websites come from the websites of some provincial food and drug supervision and management departments, which proves that there are countless illegal notices about advertisements of Hongmao medicinal liquor by provincial food and drug supervision and management departments since 2008, and illegal advertising activities involve various types;

13, the State Administration for Industry and Commerce announced ten serious illegal advertisements, such as "Jiangya No.0", which came from SAIC No.0/12, and the copy was from Shanghai Library, which proved that the State Administration for Industry and Commerce regarded the advertising illegal acts of Hongmao medicinal liquor as the top ten serious illegal acts in 20 1 1 year.

14. The announcements and punishment decisions of some local industrial and commercial departments on advertising violations of Hongmao medicinal liquor came from the advanced legal database of Waco, which proved that Hongmao medicinal liquor had been punished by industrial and commercial departments many times since 2008.

15. The plaintiff's industrial and commercial registration information comes from the national enterprise credit information publicity system, which proves that the plaintiff's historical names are Inner Mongolia Hongmao Pharmaceutical Co., Ltd. and Inner Mongolia Hongmao Pharmaceutical Co., Ltd.; The enterprises and media mentioned in these announcements are plaintiffs;

16. Invoice of Shanghai Library, which proves that the original newspapers and periodicals in 6- 1 1 3 were copied in _ Shanghai Library;

17. The contents of the drug advertisement of Mongolian medicine Guangshen (Shi) No.2017120232 found on the website of China Food and Drug Administration, which proves that the advertisement published by the plaintiff quoted in the defendant's article involved in the case is consistent with the advertisement approved by the food and drug supervision department. In fact, the advertisement was also reflected in the evidence submitted by the plaintiff.

The plaintiff cross-examined the evidence provided by the defendant as follows:

The authenticity of the evidence 1 is recognized, but the content of the proof is not recognized. The articles published by the defendant are facts, but the articles published by the defendant are not considered as academic discussions. The defendant published articles to gain attention by belittling the plaintiff, so as to achieve the purpose of marketing, improving image and selling books; This evidence notarized 12 typical false advertising cases that had been investigated and dealt with on WeChat official account published in Shanghai, but the plaintiff's product Hongmao medicinal liquor was not among the typical cases of 12. The defendant also quoted unverified comments in the article and further attacked the plaintiff's company on the basis of the comments. The article cited by the defendant is a fact, but the facts described in it have not been verified by the defendant. The defendant failed to verify the facts. On quotation; The defendant claimed that he cited a lot of data when publishing his article, but the article actually published by the defendant did not indicate the index and source;

Evidence 2 has nothing to do with the plaintiff and will not be cross-examined;

Many articles in Evidence 3- 1 1 have not been verified by the defendant, and the plaintiff does not recognize these articles. The plaintiff did not take action to protect rights, which was not a laissez-faire attitude. Plaintiffs have procedures and ways to protect their rights. Among them, the article of Evidence 4 has been deleted by the author himself, because the article has been suspected of illegal infringement, and the original author has deleted it himself. For the rest of the articles, the data of 2630 illegal notifications put forward by the defendant were not analyzed and could not reflect the legal and reasonable sources of the data; Evidence 1 1 article published by Health Times, which actually did not explain the data source of 2630 illegal advertisements, and this evidence cannot be used as theoretical support for the defendant's article;

The authenticity of the evidence 12 and 14 is not recognized. The reason is that there are no restrictions on the approval number of drug advertisements in China's advertising law, drug advertisement examination methods and other laws and regulations. Just because many corporate advertisements are approved does not mean that advertisements must be illegal. On the contrary, it shows that enterprises attach importance to advertising approval, and the regulatory authorities are serious and responsible. Jiangsu Yaosu Guanggong (20 15) No.003 also proved that the plaintiff had actively dealt with the rectification before the implementation of the new advertising law;

The authenticity and relevance of the evidence 13 and 16 are not recognized; Even if the evidence 13 is true, the plaintiff does not admit the actual facts, but only exchanges and articles. Announcement is also an attitude towards the past before the implementation of the new advertising law. You can't use the data of a few years ago to discredit the actual situation now. The evidence is too long, improper and inappropriate, which belongs to infringement;

Evidence 15 accepted without objection;

Evidence 17 has no objection to its authenticity and is consistent with the evidence provided by the plaintiff.

Our court found out the following facts through trial: On February 27th, 20 18, WeChat official account "Shanghai Publishing" published an article entitled "[Exposing] these 12 typical false advertisements are suspected of violating the law", which clearly investigated and dealt with the advertisements of 12. Many readers in the "featured message area" below the article wondered why they didn't review ". 12 typical false and illegal advertising cases contained in the above article do not include "Hongmao medicinal liquor".

On March 5, 20 18, the defendant Cheng Yuan published an article entitled "Hongmao medicinal liquor with a history of bad advertising won the CCTV National Brand Plan" on his personal official account "Law 10 1" (micro signal: chengyuanlawyer). Whose face did he hit? The article said: Recently, the Shanghai Municipal Administration for Industry and Commerce published 20 17 typical cases of false advertisements 12 on the official WeChat account of the Shanghai Municipal Government, which aroused widespread concern from all walks of life. Screenshot ([exposure] These 12 typical false advertisements are suspected of breaking the law and have been investigated and dealt with according to law! 20 18-02-27. Published in Shanghai) What caught the author's attention was that many netizens' messages invariably pointed to the advertisement of Hongmao medicinal liquor. Earlier, some media reported that in the past 10 years, this "healing and strengthening" medicinal liquor was reported to be illegal for 2630 times. If medical advertisements violate Guinness World Records, Hongmao medicinal liquor will definitely be on the list. For 2630 times, the author is not sure about the accuracy of this data, but there is no doubt that Hongmao medicinal liquor has a history of illegal advertising ... As an over-the-counter drug, Hongmao medicinal liquor must be approved by the advertising review department, that is, the food and drug supervision and administration department, before it can be released. We can't help but ask, as the examination and approval department, whether it has fulfilled its duty of examination ... Although it can't be asserted that the above advertisements of Hongmao medicinal liquor are illegal, it is certain that the food and drug supervision department has adopted extremely loose standards in advertising examination and approval. In addition to the relaxation of censorship standards, the relaxation of administrative punishment is also one of the reasons why illegal advertisements of Hongmao medicinal liquor have been repeatedly banned. ......

On March 6, 20 18, the article was reprinted by the official account of wechat wechat "red shield forum" (micro signal: aicbbs). By March 8, 20 18, the number of articles involved in the WeChat official account "Fa 10 1" was 9 15 times, and the number of articles involved in the WeChat official account "Red Shield Forum" was 982 1 time. At present, the articles involved have been deleted from the official WeChat account "Red Shield Forum".

It is also found that the 62nd issue of Health Times (sponsored by People's Daily) published on August 25th, 2065438+2007 published a report entitled "Who is the amulet of Hongmao medicinal liquor after the approval of 2630 illegal advertisements and 1034 advertisements". According to the report, the Health Times reporter studied the announcement documents in the past ten years. The results of incomplete statistics show that Hongmao medicinal liquor was reported illegal by the food and drug supervision departments of 25 provinces and cities including Jiangsu, Liaoning, Shanxi and Hubei, and the number of violations reached 2,630, and sales were suspended for dozens of times.

2065438+February 8, 2007 65438+2007, Yan Yan published an editorial entitled "Who is giving the green light to the advertisement of" illegal drug addiction ". According to the article, some media conducted incomplete statistics according to the announcement documents in the past decade. The advertisement of Hongmao medicinal liquor was reported illegal by the food and drug supervision departments of 25 provinces and cities, with 2630 violations and suspension of sales dozens of times.

20 17 17 The Beijing News Weibo published a commentary entitled "Repeated offenses and repeated green lights, and" God's supervision "behind" magic medicine ",saying that the illegal advertising record of Hongmao medicinal liquor is unlikely to be as good as that reported by Health Times. According to incomplete statistics in recent ten years, advertisements of Hongmao medicinal liquor were reported illegal by food and drug supervision departments of 25 provinces and cities. The number of violations is 2630, but thousands of advertising approvals can be obtained. This is a miracle: on the one hand, there are "bad behaviors" and countless illegal warnings in advertising behavior, but on the other hand, it does not affect its qualification for advertising approval at all, and it can continue to brainwash the people on various platforms as a "magic medicine". The article also reported other contents.

On February 27th, 20 18, the blog of Caijing Tianxia Weekly published Liu's article "Hongmao medicinal liquor violated the rules 10 and was reported 2600 times, and the annual retail sales1600 million was spent on advertising? The article "Hongmao Medicinal Liquor" states: If the medical advertisement violates the rules, it will be judged by Guinness World Records, and Hongmao Medicinal Liquor will definitely be on the list. During the period of 10, this "healing and strengthening" wine was reported to be illegal for 2630 times, which is equivalent to receiving 22 notifications every month, of which sales were suspended for dozens of times, but there were advertisements approved by 1 186.

In addition, it was found that the production approval number of the generic OTC drug named "Hongmao Medicinal Liquor" was Sinopharm Zhunzi Z 15020795, and the holder was Inner Mongolia Hongmao Pharmaceutical Co., Ltd., whose name was changed to Inner Mongolia Hongmao Pharmaceutical Co., Ltd. on June 19, 2065, and its name was its business scope. Health food: production and sales of Hongmao brand Hongmao medicinal liquor, Hongmao brand velvet ginseng wine, Hongmao brand Hongmao deer turtle ginseng wine; Liquor production; House leasing. * * * * * General business items: None.

We believe that,

The plaintiff is a legal person engaged in the production and sale of products such as Hongmao medicinal liquor. As the actual holder of the production approval number of over-the-counter "Hongmao medicinal liquor", the plaintiff's reputation right includes not only his own business reputation, but also the reputation of his products. Among the articles involved in the case released by the defendant, "Hongmao medicinal liquor" is a product operated by the plaintiff, and "Hongmao medicinal liquor advertisement" was released by the plaintiff, who has a direct interest in this case and is a qualified party.

The focus of the dispute in this case is whether the articles involved in the case published by the defendant constitute an infringement on the plaintiff's reputation right. According to the relevant laws and regulations of our country, if the actor infringes upon the civil rights and interests of others due to his fault, he shall bear the tort liability. Insult or slander others in written or oral form, which damages their reputation, shall be regarded as infringement of their reputation right. The so-called insult generally refers to using words or actions to damage, vilify and degrade the personality of others. The so-called slander generally refers to fabricating and spreading some false facts to damage the reputation of others. Throughout the whole article involved, the defendant took "Hongmao medicinal liquor advertisement" as an example to discuss the problems existing in the advertising management of relevant departments, which is the defendant's personal opinion and suggestion on strengthening the examination and supervision of food and drug advertisements, which is related to the safety interests of food and drugs and should belong to the protected freedom of speech. In view of the plaintiff's claim that the defendant misled readers, consumers thought that "Hongmao medicinal liquor" was a typical false advertisement of 12 suspected of being illegal, and the use of the title of the article involved was an infringement, our court commented as follows: First, although the article involved cited the article entitled "[Exposing] these typical false advertisements of 12 suspected of being illegal", it was investigated and dealt with according to law. However, it does not show that "Hongmao medicinal liquor" is one of the typical false advertisements of 12 suspected of violating the law. The defendant also said that the query for the advertisement of "Hongmao Medicinal Liquor" was a message from a netizen and should not be ambiguous or misleading. As a rational social person, it is difficult to make negative comments on the plaintiff and his products only by this statement. Secondly, the critical expression of "bad advertising history" in the title of the article involved stems from the illegal advertising history of "Hongmao medicinal liquor" disclosed by the media such as the Internet. Although the wording is sharp, it does not constitute insult or slander. As a well-known enterprise, the plaintiff should bear more tolerant obligations to public comments and public opinion supervision. To sum up, it is not illegal for the articles involved in the case published by the defendant to damage the plaintiff's business reputation and commodity reputation.

Accordingly, the plaintiff's claim does not conform to the provisions of Article 6, paragraph 1, of People's Republic of China (PRC) Tort Liability Law and Article 7, paragraph 2 of the Supreme People's Court's Answers on Several Issues Concerning the Trial of Reputation Rights. Our hospital

The verdict is as follows:

Reject the plaintiff's claim of Inner Mongolia Hongmao Sinopharm Holdings Co., Ltd. ..

300 yuan, the acceptance fee of the case, was charged at half the rate of 150 yuan, and was borne by the plaintiff, Inner Mongolia Hongmao Chinese Medicine Co., Ltd.

If you refuse to accept this judgment, you can submit an appeal to our court within 15 days from the date of service of the judgment, and submit copies according to the number of the other parties, and appeal to the Shanghai No.1 Intermediate People's Court.

Judge: Qiao Caiquan

201June 8 13

Assistant Judge and Clerk: Huang Huimin.