Appellate Judgment
Kong Qingdong v Nanjing Radio and Television Group (Nanjing Radio and Television) et. al.
Right to Reputation Dispute
Beijing No. 1 Intermediate People's Court
(2015) First Intermediate Civil No. 02203
Appellant (formerly Plaintiff) Kong Qingdong, Male, Born September 22, 1964.
Appellee (formerly Defendant) Nanjing Radio and Television Group (Nanjing Radio and Television), #338 Long Pan Road, Nanjing, Jiangsu.
Appellee (formerly Defendant) Wu Xiaoping, Male, Born January 27, 1955.
Appellant Kong Qingdong filled an appeal with this court because he did not agree with the Beijing Haidian District People's Court civil judgment (2014) Hai Civil First Instance No. 26881 relating to a case of right to reputation. This court formed a collegiate panel to hear the case. Hearing in this case of concluded.
In the court of first instance Kong Qingdong claimed: On May 11, 2013, in a report entitled "Is Beijing University Professor Kong Qingdong a Professor or a Beast," Wu Xiaoping, host of the Nanjing Radio and Television Group (hereinafter NRTG) channel 18 program "Listen to Me Shao Shao," offered commentary on a lawsuit filed by Kong Qingdong, during which Wu used insulting language to attack and derogate Kong Qingdong such as "professor or beast," and Kong Qingdong's reputation is "based entirely upon cursing others." NRTG simultaneously broadcast the program online, and the video remains available on the NRTG website, and people continue to click and view it. The actions of NRTG and Wu Xiaoping severely damaged Kong Qingdong's right to reputation. The lawsuit asked the court to order NRTG and Wu Xiaoping to:
1. immediately cease their violations and take steps to alleviate their impact;
2. make a public apology; and
3. pay 200,000 yuan in compensation for the plaintiff's economic losses.
In the court of first instance NRTG responded: Wu Xiaoping's commentary was in the nature of a professional activity, and if there was any infringement, then the responsibility should be borne by NRTG. Wu Xiaoping's commentary was offered in the spirit of objectivity and impartiality, and merely raised doubts that Kong Qingdong's behavior was appropriate for a professor at Beijing University, and this does not constitute an infringement of his rights. It asked the court to reject the relief requested by Kong Qingdong in his lawsuit.
In the court of first instance Wu Xiaoping responded: When hosting the program his commentary on the plaintiff was relative objective, and there was no accusatory language, nor did it derogate Kong Qingdong, and it did not constitue an infringement of his rights. He asked the court to reject the relief requested by Kong Qingdong in his lawsuit.
The inquiry of the court of first instance determined: Kong Qingdong is a professor at Beijing University, and in recent years has triggered more than a few disputes owing to cursing people with "bursts of foul language" and other incidents. Wu Xiaoping is the host of the "Listen to Me Shao Shao" program on NRTG channel 18.
On May 11, 2013, during NRTG's channel 18 program "Listen to Me Shao Shao," host Wu Xiaoping did, while making his report, use as a lead-in a report from the Yangzi Evening News entitled "Beijing University Professor Ordered to Apologize for Calling Someone a 'Traitorous Dog' on Weibo." In doing so he made commentary on and reflected upon various aspects of the incident including current status intellectual's words and deeds, personal cultivation, and China's higher education. During the program Wu Xiaoping said:
Lend Old Wu your ear for moment. In today's "Yangzi Evening News" there a report entitled "Beijing University Professor Ordered to Apologize for Calling Someone a 'Traitorous Dog' on Weibo." Today when I read this news I found it quite interesting. To start with there's a Beijing University professor named Kong Qingdong, and once again he's cursing someone. Why say that he's once again cursing someone? Because, to be frank, this Kong Qindong person is really famous. The entire reason that he has any sort of national notoriety is a product of his cursing people. Because his cursing someone is not just a one-off thing. To say that Kong Qingdong curses people, when I just did a quick scan of Weibo, all you see is multiple instances where he is cursing journalists. . . . but the coarseness of his speech is so beyond the pale . . . . the way he is cursing people this time. He says what you say is irrelevant, that you're traitorous dog, and he says this publicly on Weibo. . . . Recently Kong Qingdong wrote a poem . . . . it was called "The Summer That Follows the Spring" . . . . He made a minor linguistic mistake, and so this Internet user pointed it out to him, said sorry, you've got a mistake in there, you can't even get these basic forms right, and it seems like you didn't even make proper use of the rhyme and meter. And just for saying this, which was entirely intended as academic critique, he goes off and curses the guy, telling him he's completely off base, and he's a traitorous dog. What kind of example of a model teacher are you setting here? So what's the first thing Old Wu wants to bend your ear with today? If a professor is a beast, then what is he - a professor or a beast? While Old Wu is bending your ear, I have to laugh, in our nation's culture a professor holds a somewhat vaulted position, and one should say that we hold professor in relatively high esteem. So for a professor, having such exalted status, to curse so obscenely - would you say he is in fact a professor or a beast? Students a learning academic inquiry from him, while he spits invective at people, saying you're a traitorous dog, you don't know what the hell you're talking about, is what you're saying here clearly cursing others? . . . . But there are two terms that I'm particularly interested in here, one is 'Beijing University' and one is 'professor' . . . . What would you say the problem is if senior professors at a leading academic institution are hurling obscenities as us little folk? So Old Wu immediately starts thinking about our dear Beijing University, or great Beijing University, and the glorious history of our Beijing University. Cai Yuanpei was a dean . . . . if he were to wake up and see the generations that have followed, or see that in his school there has appeared someone who curses others like this - and a professor no less, would you say he would find it hard to bear, that he could rest in peace? Speaking of Cai Yuanpei, let's talk about another Beijing University dean . . . . Ma Yinchu . . . also an upright character . . . . So we have to think about the fact that the Beijing University deans of yesteryear were of such upright characters, such liberal academics, why is that when we come to the current generation, with its scientific development and scientific achievements, and still this kind of a professor appears on the Beijing University campus. It strikes one as inconceivable. And whatever kind of teacher you have, that's the kind of student you'll get . . . . It make me think of how so many of our cadres today . . . . they're all graduates of Beijing University and Tsinghua University, but as for the character of some of these cadres, if you compare them with this Kong Qingdong, I personally feel you'll be looking at different approaches leading to the same result. . . . we have to rethink how we view public officials. . . .This program was simultaneously posted on the NRTG website (www.nbs.cn), and based on an examination performed during a hearing, it is still up and may be clicked on and viewed by Internet users, with the title "Old Wu: Is Beijing University Professor Kong Qingdong a Professor or a Beast?" An investigation of the ICP registration information shows that the sponsor of this website is NRTG.
Notarization Document (2013) Jingfangzhengneimin No. 20788 shows: On July 19, 2013, utilizing Baidu to search for "Listen to Me Shao Shao Kong Qingdong," one could locate a video on the Youkou website entitled "Famous Nanjing Media Commentator: Kong Qingdong is a Beast! Unsuited to Be a Beijing U. Professor!" It took excerpts from the NRTG channel 18 program "List to me Shao Shao" showing the host Wu Xiaoping hosting the program on May 11, 2015, but the Listen to Me Shao Shao program did not itself have that kind of title, and it was added by the poster of the video.
NRTG stated that Wu Xiaoping's hosting and commentary were in the nature of a professional activity, and if there was infringement caused, then the responsibility should be borne by the employer. But the language forming the overall analyses in the commentary interspersed throughout the program did not constitute infringement. Kong Qingdong disagrees, and believes that NRTG and Wu Xiaoping should bear joint liability in tort.
The foregoing facts are supported by notarized documents, print outs of web pages, recordings, the testimony of witnesses, hearing records, and other evidentiary materials.
In its judgment the court of first instance held: During the "Listen to Me Shao Shao" program, Wu Xiaoping used as a lead-in a report from the Yangzi Evening News entitled "Beijing University Professor Ordered to Apologize for Calling Someone a 'Traitorous Dog' on Weibo," and made commentary based on a reading of that report. The incident in the Yangzi Evening News report actually occurred, and therefore the only point of dispute in the case was to determine whether Wu Xiaoping's commentary on the incident constituted an insult of Kong Qingdong which in turn constituted an infringement of his right to reputation. "Listen to Me Shao Shao" is a television news commentary program, and by its nature it needs to aggregate those recent incidents, issues, and social phenomena that are particularly newsworthy and worthy of comment, and undertake comment and analysis, and offer opinions and approaches. The particular nature of this kind of television format allows commentators to touch upon difficult personal and social matters when offering their critiques, and what they have to say is often things that others do not want to hear, and they will use certain derogatory language and phrasing to admonish present-day evils, fight for justice, and promote introspection and self-discipline. In addition, criticism will inevitably create feelings of mental frustration, or even pain and suffering, on the part of the one being criticized, and can easily lead to disputes over the right to reputation. Nevertheless, news commentary has significant value in our society, and is an important channel for the expression of the public's opinion, the exchange of ideas, as well as the media's role in public opinion supervision. Given its unique value, there must be a certain degree of tolerance of news commentary, and caution must be used when determining whether infringement has occurred.
In this case, Kong Qingdong has clearly stated that he is accusing Wu Xiaoping of making two statements that he believes are tortious. One is "The entire reason that he has any sort of national notoriety is a product of his cursing people." The second is "So what's the first thing Old Wu wants to bend your ear with today? If a professor is a beast, then what is he - a professor or a beast?"
The court believed that there was an actual factual basis for Wu Xiaoping's commentary. The commentary's phrasing was targeted and sincere, and there is no evidence to prove that Wu Xiaoping was motivated by a malicious intent to harm Kong Qingdong's reputation or insult his character. With respect to news commentary, if there is an actual factual basis, and objectively there is an absence of malice to insult the character of a third party, then notwithstanding the presence of certain speech that, taken alone, could be characterized as aggressive or somewhat excessive in its phrasing, it must be given understanding and tolerance, and viewed as being with the scope of normal commentary.
In the particular case of Kong Qingdong who, as a Beijing University professor, has a certain social notoriety, and who in recent years has triggered much controversy in incidents involving cursing people, to the point where they have transformed into public incidents that have drawn the attention of the public, he should be deemed as an example of a public figure. Based on considerations of the public interest, the public should be permitted to raise reasonable questions, censures, and even strident criticisms, regarding the behavior of public figures, especially with regard to inappropriate behavior. In order to ensure that citizens and the media enjoy full freedom of speech when debating matters of public interest, one cannot simply believe that every mere expression of doubt or criticism must by its nature constitute an infringement of a public figure's right to reputation, unless at the time the speaker speaks there is clear malicious intent. Therefore, the legal protections for the personal interests of public figures must be subject to appropriate limitations, and public figures must have a certain degree of tolerance for the media's non-malicious criticisms and challenges.
In this case, as regards Wu Xiaoping's statement during the program that "The entire reason that he has any sort of national notoriety is a product of his cursing people," while this expression of the reasons for Kong Qingdong's notoriety is somewhat extreme, and inappropriately denies the academic accomplishments of Kong Qingdong, nevertheless Wu Xiaoping's appraisal was explained when he immediately followed this with "Because his cursing someone is not just a one-off thing." Analyzing the entire context, Wu Xiaoping came to his personal authentic opinion based on his examination of the relevant incidents of cursing people, and there is no indication of any malicious intent to insult or defame, and it is difficult to find this commentary infringed upon Kong Qingdong's right to reputation.
As regards the statement "a professor or a beast?" it adopts the format of question, and while it is relatively strident and harsh, nevertheless its meaning is to express a challenge, and is without malicious intent to insult. Looking at the content of the entire program and the foregoing statement in context, as well as analyzing the specific environment in which the statement occurred, the true meaning of the discourse is to express the belief that Kong Qingdong's vulgar cursing leaves one disappointed, and is not consistent with what one would expect from a professor at an institute of higher learning who should be a model for others, an upright character and liberal academic. This was therefore an expression of "deep love and profound respect" for the current state of ethnics in institutions of higher learning and higher eduction.
Owing to the fact that a court of law determined that Kong Qingdong's cursing on Weibo was a tort and ordered him to make a formal apology, and because it would be difficult for newspapers and online media reports and broadcasts to avoid a negative appraisal, and as a result of the focus of Wu Xiaoping's commentary being not on Kong Qingdong individually, but rather on using this incident as the basis for commentary around issues relating to Beijing University as an institution of higher learning and higher education, the harm it did to the ability of teachers to act as models for others, and other topics relating to society and the public interest, it is therefore difficult to reach the conclusion that there was any malicious intent to insult Kong Qingdong's person on the basis of a comprehensive analysis and judgment of the manner, tone, and context.
Given that Kong Qingdong is a public figure, and in our society the more one is subject to social commentary the higher one's duty to show tolerance, the court believes that just because the words used when making news commentary are somewhat pejorative, they cannot be taken out of context and held to be insulting. The content of Wu Xiaoping's commentary did not rise to the level of being severely insulting, and does not constitute an infringement of the right to reputation.
Given that the court has not held that the Wu Xiaoping's speech during the program constitutes a tort, the court denies Kong Qingdong's request that NRTG and Wu Xiaoping cease their infringing behavior, publicly apologize, and make joint compensation for loses.
In summary, in accordance with Article 1 of the General Principles of the Civil Law of the People's Republic of China and Article 8 of the "Interpretation of the Supreme People's Court on Several Issues about the Trial of Cases Concerning the Right of Reputation," the plaintiff Kong Qingdong's demands for relief are rejected.
Kong Qingdong did not accept the judgment of the court of first instance, and appealed to this court. The appeal requested the following relief: overturn the lower court's judgment and issue a revised judgment in accordance with the law. The appeal's reasoning is as follows:
1. Appellee NRTG continues to display on its website the video under the title "Old Wu: Is Beijing University Professor Kong Qingdong a Professor or a Beast?", and this title has the quality of insulting speech used to curse someone, and itself constitutes the crime of infringement of the right to reputation.
2. Appellee undertook to comment on litigation involving the appellant without any additional investigation, and while he used the interrogative voice in emphasizing "a professor or a beast," this was tantamount to calling someone a beast.
3. Appellee said that the reason for appellant's notoriety was a result of his cursing others, and this comment constitutes defamation.
4. The lower court's determination that appellant is a public figure lacked a clear basis.
5. Even if he is a public figure, the right to reputation is protected by law, and he enjoys the right to not be subjected to insults.
6. There was a lack of overall fairness in the positions taken by the lower courts in this case and in Guan Kaiyuan's lawsuit against Kong Qingdong.
NRTG claims in its defense: the determination of facts in the lower court's judgment is clear, its interpretation of the law is correct, and should be upheld, and they do not agree with the claims and reasoning of Kong Qingdong's appeal. As a television host, it is Wu Xiaoping's duty and his job to make comments about social matters, and in this case Wu Xiaoping lacked the subjective purpose or intent to infringe upon Kong Qingdong's right to reputation. The expressions he used were subjective, fair, and therefore do not constitute an infringement of his right to reputation.
Wu Xiaoping claimed in his defense: he concurs with the lower court's judgment, and is of the same opinion as NRTG.
During the trial of second instance, NRTG and Wu Xiaoping submitted to this court materials from the Phoenix website and Baidu search to prove that until now there continues to be news and reports of Kong Qingdong cursing people. Kong Qingdong denies this.
Based on an investigation, this court hereby affirms the facts as determined by the lower court's examination of the evidence are true.
The aforementioned facts have also been supported by evidence from the statements of the parties during the trial of second instance.
This court finds: citizens' right to reputation is related to their sense of personal dignity, and protections afforded the right of reputation and other personal rights under the law are an expression of concern for each person's individuality. The media's rights of supervision and commentary that have been generally recognized represent an expression of the general welfare, and the protections afforded the media's freedoms to supervise and comment represent considerations arising out of the public interest. When the media exercises its rights to supervise and comment, even to criticize and question, it is inevitable that conflicts will arise between it and the individual rights of the objects of its criticisms and questions. Conflicts of rights must be reconciled by the law, and the crux of the reconciliation lies in an examination of whether the law deems distinct rights should be based on an equal appraisal and placed on the same level.
This court finds that today there seems to be no disputing the view that achieving the public interest is a higher aim than realizing personal interests. Therefore, when the media, in the course of expressing outrage over harmful social trends and reflects the public interest in upholding and venerating mainstream value systems, owing to its roll in the public welfare, when compared with value of individual interests, its protection must be given priority. This position of priority is embody in the principle that, absent the existence of false and malicious defamation, even where the expression in question may leave the victim feeling uncomfortable, there will be no liability in tort, and the victim must make allowances.
In this case, all of the statements made by the host Wu Xiaoping in the program "Listen to Me Shao Shao" centered on Kong Qingdong's inappropriate speech, and lead viewers to reflect upon that affair. Its content lacked malicious intent to derogate Kong Qingdong's right to reputation. On the contrary, its content was in accord with the beneficial goal of the interests of society. At the same time, the language adopted by Wu Xiaoping did not exceed the bounds of propriety. At first hearing, Wu Xiaoping's statement that "The entire reason that he [Kong Qingdong] has any sort of national notoriety is a product of his cursing people" seems intended to offend Kong Qingdong. But any evaluation of a public figure depends upon the values of the person doing the evaluating, and the bottom line for such evaluation lies in a prohibition on using malicious fabrication to intentionally defame. Wu Xiaoping's intent was to rethink and criticize, not to maliciously infringe on someone rights. Wu Xiaoping statement "a professor or a beast?" was, from its literal meaning and an analysis of the overall content of the program, precisely intended to use the term "beast" to express a view regarding Kong Qingdong's status as a famous professor, to allow the public to appreciate the irrationality as part of a public analytical discussion of a subject, and question whether the vulgar speech was consistent with his status. This is a strong expression of apprehension regarding teachers' ethical character and the current state of higher learning, and not a malicious violation of an individual's personal dignity. Where there is no malicious intent in either the content or the methodology, Kong Qingdong may feel "infringed upon," but he most nevertheless be tolerant.
This court finds no support for Kong Qingdong's belief that the lower court's decision regarding Guan Kaiyuan's lawsuit against Kong Qingdong is lacking in fairness given the position taken by the judgment in this case. The reason being that, the victim in that case was an ordinary citizen, and his rights are subject to the rigorous protection of the law, and no person may for any reason willfully insult his person.
To sum up, the examination conducted by the lower court into the whether there was an infringement of the right of reputation in the current case complied with the balancing of policies in the public interest indicated by law, and its determinations were appropriate and reasonable. Kong Qingdong's grounds for appeal are lacking basis, and are rejected by this court. In accordance with the provisions of Article 170, Clause 1, Paragraph 1 of the Civil Litigation Law of the People's Republic of China, it is hereby held:
The appeal is denied, the original judgment is upheld.
The 1,100 yuan filing fee for the trial of first instance shall be borne by Kong Qingdong (already paid). The 1,100 yuan filing fee for the trial of second instance shall be borne by Kong Qingdong (already paid). This judgment shall be the final judgment.
Presiding Judge: Ding Yuxiang
Judge: Tang Ping
Acting Judge: Wang Guoqing
April 30, 2015
Clerk: Liu Yafan
http://openlaw.cn/judgement/dd62eca97cb04f59812e815e3e3e41b7
孔庆东与南京广播电视集团（南京广播电视台）等名誉权纠纷二审民事判决书
日期： 2015-04-30法院： 北京市第一中级人民法院案号：（2015）一中民终字第02203号
上诉人（原审原告）孔庆东，男，1964年9月22日出生。
委托代理人李志伟，北京红业律师事务所律师。
被上诉人（原审被告）南京广播电视集团（南京广播电视台），住所地江苏省南京市龙蟠中路338号。
法定代表人周天江，台长。
委托代理人刘洪，江苏刘洪律师事务所律师。
委托代理人李根华，江苏刘洪律师事务所律师。
被上诉人（原审被告）吴晓平，男，1955年1月27日出生。
委托代理人刘洪，江苏刘洪律师事务所律师。
委托代理人李根华，江苏刘洪律师事务所律师。
上诉人孔庆东因名誉权纠纷一案，不服北京市海淀区人民法院（2014）海民初字第26881号民事判决，向本院提起上诉，本院依法组成合议庭审理了本案。本案现已审理终结。
孔庆东在原审法院诉称:2013年5月11日，南京广播电视集团（以下简称南京广电集团）主持人吴晓平在南京广播电视台十八频道“听我韶韶”栏目中，使用“北大教授孔庆东是教授还是野兽”的标题，就孔庆东涉及的一起诉讼进行了评论，该评论未经调查就妄加评论，使用了“教授还是野兽”、孔庆东的名气“完全是靠骂人骂出来的”等侮辱性语言攻击、贬损孔庆东。南京广电网上同期播出了以上节目，目前该视频仍挂在南京广电网上，不断有人点击观看。南京广电集团、吴晓平的行为严重侵害了孔庆东的名誉权。故诉至法院，请求判令:1、南京广电集团、吴晓平立即停止侵害，消除影响；2、南京广电集团、吴晓平公开赔礼道歉；3、南京广电集团、吴晓平赔偿原告经济损失20万元。诉讼费用由南京广电集团、吴晓平承担。
南京广电集团在原审法院辩称:吴晓平的评论属于职务行为，如发生侵权，责任由我公司承担。吴晓平在评论过程中秉承了客观、公正原则，只是提出对孔庆东作为北大教授的不当行为的质疑，不构成侵权。请求法院驳回孔庆东的诉讼请求。
吴晓平在原审法院辩称:我在主持节目中对原告的评论较客观，未出现攻击性言语，未贬损孔庆东，不构成侵权。请求法院驳回孔庆东的全部诉讼请求。
原审法院经审理查明:孔庆东系北京大学教授，近年来因“爆粗口”骂人等事件引发不少争议。吴晓平是南京广电集团（南京广播电视台）十八频道“听我韶韶”栏目的主持人。
2013年5月11日，在南京广播电视台十八频道“听我韶韶”栏目的当期节目中，主持人吴晓平在读报时，以《扬子晚报》的报道——《微博上骂人“狗汉奸”，北大孔庆东被判赔礼道歉》为引子，引发对该事件乃至知识分子言行、修养、中国高等教育现状等方面的评论和反思。吴晓平在节目中说:“……老吴来挂个耳朵读报纸。在今天的《扬子晚报》上，《微博上骂人‘狗汉奸’，北大孔庆东被判赔礼道歉》。今天这条新闻老吴看的觉得也蛮有意思的。讲起来北大的一个教授叫孔庆东，他又骂人了。为什么说他又骂人呢？因为这个孔庆东坦率讲，他的名气并不大。他今天之所以在全国有一些名气，完全是靠骂人骂出来的。因为他骂人骂得也不止一回了。说是孔庆东骂人，光我在微博上稍微查一查，你光看他骂记者就骂过多少回……但是他这种话讲得如此粗俗不堪……他这一次是这样骂人家的。他说你说的驴唇不对马嘴，你就是个狗汉奸，而且公开是在微博上说的……孔庆东最近写了一首诗……叫做《立春过后是立夏》……他犯了一点小小的语法错误，所以这个网友就给他指出来了，说对不起，你这个里面有一点错误，你起码连那个格律也不对，而且连平仄孤仄好像这方面也没用好。就为这一句话，完全是学术上的探讨，他居然就骂人家，说你驴唇不对马嘴，你就是个狗汉奸。你这样子哪儿是为人师表的样子呢。所以老吴今天第一个耳朵想挂什么呢？教授还是野兽，到底是教授还是野兽？老吴在挂第一个耳朵的时候，我就想想好笑，教授在我们国家文化层面上还是一个等级相对较高的，应该讲我们还是对教授比较尊敬的。所以教授这么高的等级，如果还骂脏话，你说他到底是教授还是野兽呢？……学生明明跟他是学术探讨……他劈口就骂人家，说你就是个狗汉奸，你就是什么什么驴唇不对马嘴，你这话不是明显在骂人吗？……但是我对有两个词我非常感兴趣，一个是‘北大’，一个是‘教授’……你如果又是之首的学府里面……出现的最高等级的教授，都能跟我们小市民一样的骂脏话，你说说到底出现了什么问题。所以老吴立马就想到了我们亲爱的北大，伟大的北大，立马就想起了北大过去历史上是多么辉煌。院长是蔡元培……如果他突然醒过来看看他的后代，或者看看他的学府里面，居然出现了这么一个骂人的而且还是一个老师，你说他心里面难受不难受，九泉之下你说他能睡得安生吗？说完蔡元培，再说一个北大里面的校长……马寅初……也是铮铮铁骨……所以我们想想看历朝历代或者历届的北大校长是如此铮铮铁骨、如此学术自由，为什么到现代的时候，科学发展科学昌明到现在，居然北大校园里面出现了这么一个教授，令人不可思议。而有什么样的老师，就有什么样的学生……想想看我们现在的许许多多干部……都是北大清华毕业的学生，但是现在某些干部身上的一些素质，如果跟这个孔庆东两人对照起来，我个人觉得有异曲同工之妙……公务接待……重新作了预算……”该期节目同时挂在南京广电网（www.nbs.cn）上，经开庭当庭勘验仍然存在，可供网友点击观看，标题为《老吴:北大教授孔庆东是教授还是野兽？》。经ICP备案查询，该网站的主办单位为南京广电集团。
（2013）京方正内民证字第20788号公证书显示:2013年7月19日，通过百度搜索“听我韶韶孔庆东”，发现在优酷网上有标题为“南京著名媒体人评:孔庆东就是个禽兽！不配在北大任教！”的视频，其截取了南京广播电视台十八频道“听我韶韶”栏目中主持人吴晓平2013年5月11日主持的该期节目，但听我韶韶该期节目中并无这样的标题，系上传者在上传时自行填加标题。
南京广电集团表示，吴晓平的主持、评论是职务行为，如发生侵权后果由作为雇主的该单位承担，但该评论结合节目的语言背景整体分析，并不构成侵权。孔庆东对此不予认可，认为南京广电集团、吴晓平应承担连带侵权责任。
以上事实，有公证书、网页截屏打印件、录像、当事人陈述以及本案庭审笔录等证据材料在案佐证。
原审法院判决认为:吴晓平在《听我韶韶》栏目中，以《扬子晚报》上《微博上骂人“狗汉奸”，北大孔庆东被判赔礼道歉》的报道为引子，展开读报基础上的评论，《扬子晚报》上报道所涉及的事件是真实存在的，因此，本案的争议焦点仅在于判断吴晓平就相关事件所进行的评论是否构成对孔庆东的侮辱进而构成侵犯其名誉权。《听我韶韶》是一档电视新闻评论类节目，其特点决定，需要结合最近发生的具有较高新闻价值、评论价值的事件、问题或社会现象展开评论、剖析，发表意见和态度。这种电视题材的特殊性，使得评论人在进行触及有关他人或相关社会现象痛痒的批评时，说的常是别人不爱听的话，甚至会使用一些贬损性词语、语句，以达到针砭时弊、扶正祛邪、促进内省自律等作用。而批评总会使得被批评者在精神上产生挫折感乃至精神上的痛苦、伤害，容易产生名誉权纠纷。但是，对于社会而言，新闻评论有其存在的重要价值，是大众表达意见、交流思想以及开展新闻舆论监督的重要途径，这种独特价值决定，对于新闻评论应适度宽容，慎重认定侵权。
本案中，孔庆东明确表示，其所指控认为吴晓平侵权的语言为两处，一是“他今天之所以在全国有一些名气，完全是靠骂人骂出来的”，二是“所以老吴今天第一个耳朵想挂什么呢？教授还是野兽，到底是教授还是野兽？”法院认为，吴晓平的评论依据的事实是真实的，评论的语句是有针对性的、有诚意的，并无相关证据证明吴晓平存在借机损害孔庆东名誉、进行人格侮辱的恶意。对于新闻评论而言，如果依据的事实是真实的，主观上不具有侮辱他人人格的恶意，即使在个别范畴内出现言辞激烈甚至稍有过激的语句，仍应予以理解与宽容，视为在正常的评论范畴之内。特别是孔庆东作为北大的教授，有一定社会知名度，近年来因为骂人事件引发不少争议，甚至形成了公众关心的公共事件，应属社会公众人物之列。基于公共利益的考虑，应允许相关公众对公众人物的行为特别是不当行为提出合理的质疑、指责甚至刺耳的批评，不能简单地认为仅是质疑和批评本身就构成侵犯公众人物的名誉权，除非发言人发表相关言论时具有明显的恶意，以保证公民和媒体在涉及公共事务、公共利益问题的辩论中享有充分的言论自由。因此，公众人物的人格利益在法律保护上应当适当克减，公众人物对于媒体不具恶意的批评、质疑亦应有一定的宽容度量。本案中，对于吴晓平节目中的“他今天之所以在全国有一些名气，完全是靠骂人骂出来的”一句，虽然表述孔庆东的知名原因有些绝对化，不当否定了孔庆东学术方面的成就，但吴晓平在后面紧跟“因为他骂人骂得也不止一回了”的评价得出相应解释，从前后文综合分析，应是吴晓平在查阅相关骂人事件后得出的个人真实意见，并不存在借机恶意侮辱、诽谤的情况，难以认定该句评论侵犯孔庆东的名誉权。对于“教授还是野兽？”一句，采用疑问句式，虽然用语比较刺耳刻薄，但意在提出质疑而非恶意侮辱，从该节目整体的内容和以上语句的前后文、具体语境进行分析，相关用语的真实含义是认为孔庆东粗俗的骂人行为令人失望，不符合人们对于著名高校教授应有的为人师表、铮铮铁骨、学术自由等期望，以此表达对于目前高校教师道德素养以及高等教育现状“爱之深，责之切”的心情。由于孔庆东在微博骂人事件被法院认定侵权并判决赔礼道歉后，因为报纸、网络等媒体的报道、传播，难免承受相关负面评价，且吴晓平评论的重点并非仅仅针对孔庆东个人，而是以该事件为评论基础，展开后面围绕北大高等学府、高等教育存在的问题、教师不能为人师表的危害等关涉社会公共利益话题的大段评论，从语气、语调、语境等方面综合分析、整体判断，难以认定其存在侮辱孔庆东人格的恶意。鉴于孔庆东作为公众人物，较社会一般人在承受社会舆论方面有较高容忍义务，法院认为不能因新闻评论时的个别用语本身存在一定的贬义，就断章取义认定构成侮辱，吴晓平的相关评论内容尚未达到侮辱的严重程度，不构成侵犯名誉权。鉴于法院未认定相关节目中吴晓平的相关言论构成侵权，对于孔庆东要求南京广电集团、吴晓平承担停止侵权、公开赔礼道歉、连带赔偿损失的诉讼请求，法院不予支持。综上所述，依照《中华人民共和国民法通则》第一百零一条 、《最高人民法院关于审理名誉权案件若干问题的解答》第八条 、第十条 判决:驳回原告孔庆东的全部诉讼请求。
孔庆东不服原审判决，向本院提起上诉。上诉请求是:撤销原审判决并依法改判。上诉理由是:1、被上诉人南京广电集团在其网站上将《老吴:北大教授孔庆东是教授还是野兽？》作为节目标题，且至今挂在网上，该标题属于骂人的侮辱性语言，本身构成名誉权的侵犯。2、被上诉人不加调查就对上诉人的一起诉讼妄加评论，虽用疑问句式强调“教授还是野兽”，但与骂人是野兽无异。3、被上诉人说上诉人之所以有名气是靠骂人骂出来的，该评论构成诽谤。4、原审认定上诉人为公众人物时，带有明显的倾向性。5、即使是公众人物，名誉权也受法律保护，也享有不受人格侮辱的权利。6、原审法院在关凯元诉孔庆东案和本案的判决立场上有失公允。
南京广电集团答辩称:原审判决认定事实清楚，适用法律正确，应予维持，不同意孔庆东的上诉请求和理由。吴晓平作为电视节目主持人，对社会事件发表评论是义务也是工作，本案中吴晓平主观上并没有侵犯孔庆东名誉权的目的和意图，所用的言辞也是客观、公平的，因此不构成对其名誉权的侵犯。
吴晓平答辩称:同意原审判决，与南京广电集团的意见一致。
本院二审审理期间，南京广电集团、吴晓平向法院提交凤凰网网页材料以及百度搜索材料，证明至今仍有针对孔庆东骂人的相关新闻和报道。孔庆东对此不予认可。
经查，原审法院根据本案现有证据查明事实属实，本院予以确认。
以上事实还有当事人在二审期间的陈述在案佐证。
本院认为:公民的名誉权系关公民人格尊严，法律对名誉权等人格权的保护是对人之个体存在的关怀。媒体在当今时代被广泛认可的监督、评论等权利系关公众福祉实现，法律对媒体监督评论等自由的保护是对公共利益实现的考量。在媒体行使其监督评论，甚至是批评质疑之时，不可避免的会与被批评质疑者的个体权利发生冲突。冲突的权利需要法律予以调和，而调和的关键则在于审查法律将不同权利是否基于同等评价而置于同等地位。
本院认为，将公共利益作为高于个人利益实现的观点在今天看来已无争议。因此，在媒体表达对社会不良风气的鞭笞、对主流价值观念的维护和尊崇等等事关公共利益实现之时，由于其所有具有的公益性，在与个体利益的评价比较中，应具有优先保护的地位。该优先地位体现在，如不存在虚构事实以及恶意的侮辱诽谤，尽管其表达令受害人感觉不舒服，也不应成立侵权责任，受害人应作出让步。
本案中，“听我韶韶”栏目中主持人吴晓平在节目中所讲所评，均是围绕孔庆东不当言论而引领公众对该现象进行反思。其内容并非恶意贬损孔庆东的名誉权，相反，其内容合乎社会利益的善良目的。同时，在吴晓平所采取的言语等手段上，亦没有超出适当的范围。吴晓平谈到“他（孔庆东）今天之所以在全国有一些名气，完全是靠骂人骂出来的”，初听似乎有冒犯孔庆东之意，但对公众人物的评价取决于评价者自己的价值取向，评价的底线在于不得以恶意虚构事实的方式故意诋毁。吴晓平意在反思和批评，而非恶意侵权。吴晓平谈到“教授还是野兽？”一句，从字义上并结合节目整合内容分析，恰恰是想通过“野兽”一词，表达对孔庆东作为知名教授，在公开场合偶有分析谈论事物时让公众认为欠缺理性认知，并且话语粗俗与身份不符的质疑。这是对教师道德素养以及高等教育现状担忧的强烈表露，而非对某个个人的人格尊严的恶意侵犯。在内容和手段均不具有恶意的情形下，孔庆东虽然感觉“受侵犯”，但应予以容忍。至于孔庆东认为原审法院在关凯元诉孔庆东案和本案的判决立场上有失公允的观点，本院不予认同，理由在于，该案受害人为普通公民，其权利受法律严格保护，任何人不得基于任何目的，随意侮辱他人人格。
综上所述，原审法院对本案名誉权是否侵犯的审查，符合法律对公共利益的政策考量，其所做评价适当合理。孔庆东的上诉理由不能成立，本院不予支持。依据《中华人民共和国民事诉讼法》第一百七十条 第一款 第（一）项 之规定，判决如下:
驳回上诉，维持原判。
一审案件受理费一千一百元，由孔庆东负担（已交纳）。二审案件受理费一千一百元，由孔庆东负担（已交纳）。本判决为终审判决。
审判长丁宇翔
审判员汤平
代理审判员王国庆
二〇一五年四月三十日
书记员刘雅璠
