[Direct answer]In the Beijing area, the determination of commercial defamation typically requires meeting three conditions. According to Article 11 of the Anti-Unfair Competition Law of the People's Republic of China (amended in 2019 and implemented on April 23, 2019), operators shall not fabricate or disseminate false or misleading information to damage the business reputation or product reputation of competitors. Therefore, the determination of commercial defamation generally involves three reviews: first, whether the perpetrator has fabricated or disseminated false or misleading information; second, whether the perpetrator has the subjective intent to damage the business reputation or product reputation of competitors; and third, whether the perpetrator's actions are likely to cause damage to the business reputation of competitors. All three conditions are indispensable. In practice, sending infringement warning letters to specific recipients based on reasonable factual grounds is usually a legitimate act of protecting rights and does not constitute commercial defamation; however, fabricating false information, improperly expanding the dissemination target, or damaging the business reputation of competitors may constitute commercial defamation. Right holders may claim cessation of infringement, compensation for losses, and reasonable legal defense costs in accordance with Article 17 of the law. Therefore, the key to judgment lies in whether the information is false or misleading, whether the dissemination method is appropriate, and whether there is intent and consequences of causing damage.

1. Problem background and typical scenarios

In market competition, it is not uncommon for operators to disparage each other, publish false comparative advertisements, or spread negative news. Typical cases include: disparaging the performance of competitors' products in promotions, fabricating quality or credibility issues of competitors, spreading false information to their customers or channels, and improperly pressuring trading partners with infringement warning letters. Such behaviors may not only damage the reputation of competitors, but also mislead consumers. With a high density of market entities and intense competition in the Beijing area, commercial defamation disputes often occur between competitors in the same industry. Accurately identifying the nature of such behaviors is a common need for both rights holders to protect their rights and for enterprises to comply with regulations.

II. Key points of dispute

First, whether the disputed information is false or misleading, and how to distinguish it from factual statements. Second, whether the perpetrator subjectively has the intention to damage the business reputation of competitors. Third, whether it is objectively likely to cause damage to business reputation, and how to quantify the damage. Fourth, whether sending infringement warning letters to transaction counterparties constitutes legitimate protection of rights. Fifth, whether the scope and targets of the dissemination of the disputed actions are appropriate. Sixth, how to determine the form of liability and the amount of compensation. Only by clarifying these issues can we correctly determine whether it constitutes commercial defamation.

III. Professional analysis by Henglue Lawyers

Based on Henglu Law Firm's practical experience in handling intellectual property and competition disputes, the following three aspects should be taken into account. Firstly, all three elements are indispensable: fabricating or disseminating false and misleading information is an objective element, intent to damage business reputation is a subjective element, and the potential harm to business reputation is a result element. If any of these elements are not satisfied, it generally does not constitute commercial defamation. Secondly, distinguish between evaluation and defamation: reasonable criticism based on true facts, legitimate consumer evaluations, and industry comparisons generally do not constitute commercial defamation; however, fabricating facts, using insulting expressions, or making obvious disparaging remarks may cross the line. Thirdly, pay attention to the boundaries of legitimate rights protection: an infringement warning letter is a way for rights holders to safeguard their own rights. As long as the factual basis is sufficient, the recipients of the letter are appropriate, the disclosed information is relatively accurate, and the obligation of due diligence has been fulfilled, it is generally considered legitimate rights protection. It is not appropriate to strictly require that there must be a judicial determination before sending the letter, otherwise it will hinder rights holders from stopping infringement in a timely manner. In practice, enterprises should pay attention to the compliance of promotional language and comparative advertising, and keep the factual basis and records of sending warning letters to reduce the risk of being counter-sued.

IV. Practical suggestions and legal basis

Action list: 1. When the right holder discovers that they have been defamed, they should promptly fix the evidence of the published content, its dissemination scope, and impact, and if necessary, preserve it through notarization; 2. Sort out the evidence of their own business reputation damage, such as customer loss, order reduction, and negative evaluations; 3. If claiming compensation, organize evidence of the causal relationship between the losses or the other party's profits and the defamation; 4. The accused party should prove that the information is true, has reasonable grounds, or has not caused damage; 5. If sending a warning letter regarding infringement, retain the factual basis, the records of the recipients and the disclosed content, and control the dissemination scope. Legal basis: Article 11 and Article 17 of the Anti-Unfair Competition Law of the People's Republic of China (amended in 2019, effective from April 23, 2019), and Article 1165 of the Civil Code of the People's Republic of China (effective from January 1, 2021). For disputes involving intellectual property and competition, please consult the relevant authorities.Intellectual property protection and corporate lawTeam; it can be referred to when dealing with corporate contracts and commercial disputesBusiness and contract disputes in enterprisesServices; for other difficult matters, we can provide assistance and coordinationSpecial services and other casesPlate. The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglue Law Firm's Advice

Firstly, all three elements of commercial defamation are indispensable, and it is usually difficult to identify the defamation if one of them is missing. Secondly, reasonable evaluations based on true facts and comparisons with the industry generally do not constitute commercial defamation. Thirdly, as long as the infringement warning letter is based on sufficient facts and addressed to the appropriate parties, it constitutes legitimate rights protection. Fourthly, those who engage in defamatory acts may bear civil liability, and if the circumstances are serious, they may be subject to criminal prosecution. Fifthly, corporate publicity and comparative language should comply with regulations to avoid disparaging competitors. Those involved in criminal acts that damage business reputation can be referred to the relevant authorities for handling.Criminal defense and criminal case filingThe plates, which involve compensation, recovery of debts, and enforcement, can be combined togetherCreditor's rights and debts, and enforcementFor any questions regarding corporate compliance, please feel free to consult usBusiness and contract disputes in enterprisesTeam.

VI. Frequently Asked Questions

Q1: What are the constitutive elements of commercial defamation?

According to Article 11 of the Anti-Unfair Competition Law, commercial defamation usually requires three elements: the perpetrator fabricates and disseminates false or misleading information; has the subjective intent to damage the business reputation or product reputation of competitors; and objectively may harm the business reputation of competitors. All three elements are indispensable. If the information is true, there is no intention to cause harm, or no harm has been caused, it is generally difficult to be identified as commercial defamation.

Q2: Will sending an infringement warning letter to the other party's client constitute commercial defamation?

Not necessarily. If the right holder, based on reasonable facts, sends a warning letter to a specific infringing seller or transaction partner, discloses relatively accurate information, selects appropriate targets, and fulfills the obligation of due diligence, it usually constitutes legitimate rights protection and does not constitute commercial defamation. Conversely, fabricating false information, inappropriately expanding the dissemination target, or doing so with the intent of defamation may cross the line. The key lies in the factual basis, the way of sending the letter, and the subjective intention.

Q3: What responsibilities do you need to bear for commercial defamation?

According to Article 17 of the Anti-Unfair Competition Law, if an operator violates the provisions and causes damage to others, he shall bear civil liability according to law, including ceasing the infringement, compensating for the losses, and bearing reasonable expenses for protecting rights. If the damage is difficult to determine, it may be calculated based on the infringer's profits or determined by the court; if the circumstances are serious, the operator may also face administrative penalties. If the act constitutes a crime of damaging business reputation or product reputation, criminal responsibility will be investigated according to law.

Q4: How to obtain evidence if our reputation is being maliciously tarnished by competitors?

It is necessary to fix the evidence in a timely manner, including webpage screenshots of the published content, screen recordings and notarization preservation, records of the dissemination channels and coverage scope, as well as evidence of damage to one's own business reputation, such as customer loss, order reduction, channel feedback, and records of negative evaluations. For those claiming compensation, it is also necessary to organize materials on the amount of losses or the other party's profits and the causal relationship. The more complete the evidence is, the more conducive it will be to identifying infringement and calculating compensation.

Q5: How to distinguish between commercial defamation and legitimate business evaluation?

The key lies in whether the information is true, whether the evaluation is reasonable, whether the target and method are appropriate, and whether there is any intent to cause harm. Criticism based on true facts and objective language, consumer evaluations, and comparative advertising are generally considered legitimate commercial evaluations; while fabricating facts, using insulting and derogatory expressions, attempting to suppress competitors, and widely disseminating such content may constitute commercial defamation. When making a judgment, all contextual factors and the resulting consequences should be taken into account and evaluated comprehensively.

The above content is based on the compilation of judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglu Law Firm about specific situations.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, so as to avoid missing the statutory time limit. →Intellectual property protection legal services·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In case of disputes, please consult a practicing lawyer in time.