Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Monday, November 13, 2006

More on the blog defamation case

In my recent post on the case of journalism professor who sued a blog hosting site for failing to remove insulting comments about him, I ventured some comparative observations about US defamation law based on my admittedly shallow knowledge of the subject. Fortunately, my friend and colleague Perry Keller of King's College London, an expert on both Chinese law and media law, has volunteered some much more sophisticated observations, which I offer in place of my own:

I'm not sure that the case involving the abusive student is so far from western defamation law standards. Although, to be frank, the United States and China sit at opposite ends of the spectrum in this area of law and that makes comparison difficult. The Chinese government is, for obvious political reasons, very reluctant to recognise a public interest or public figure defence for defamation actions. The courts of the United States, in sharp contrast, have used the First Amendment to eviscerate much of the law of libel, which one could argue has had a mixed effect on American public life.

Defamation under the common law is based on the question of whether a reasonable person would find that the meaning of the statement lowers the reputation of the person in the eyes of society (which is not quite the same as asking whether the statement is insulting). If the meaning of the statement that a person is a "weisuoren" is that he is a “pervert” it does seem to meet that test.

As the professor does not appear to be even a 'limited purpose public figure', the New York Times v. Sullivan constitutional privilege would not apply.

Consequently, the major issue here would then be whether or not the statement is protected under a defence of opinion, as Don has suggested. Although the US Supreme Court has declared that the First Amendment does not offer a blanket opinion defence, insulting or exaggerated speech that does not contain implicit statements of fact is protected (Milkovich v. Lorain Journal).

Does the statement that the professor is a “weisuoren” contain an implicit allegation of fact? American courts have tended to take a liberal view of insulting speech and have often found that generally abusive language carries no imputation of fact (eg. “fascist”). So, it seems likely that this single word would be sheltered under the opinion defence, which also requires that the defendant be shown to be motivated by malice.

The statement about him having rotten teaching materials “lanjiaocai”, would more clearly contain an implicit factual statement. However, so long as there was some plausible basis for that opinion, I believe it would also be protected under American law, although my knowledge of US law is not renowned for its depth.

The European Court of Human Rights has developed a fairly robust standard of protection for defamatory speech made in relation to a matter of public concern. This public interest defence is strengthened where the claimant is a public figure, but unlike American law does not depend exclusively on that status classification. From a European perspective, the problem in this case is that there is no obvious public interest element, without which there seems to be little reason to afford a defence to a plainly defamatory statement. Even opinions (“value judgements”) can harm a reputation and must be made on a matter of public concern to gain protection.

The English law of defamation has changed considerably under the influence of European human rights law to offer greater protection to freedom of speech. Nonetheless, I cannot see the student succeeding in this case under English law. Opinion is protected under the defence of fair comment, but this defence is is restricted to comments on matters of public interest. Moreover, an English Court would be more likely to find that a statement that a man was a ‘pervert’ would contains an implicit statement about the claimant’s conduct. There would consequently need to be some plausible connection between proven conduct of the claimant and the comment.

Lastly, American federal law provides strong protection from liability for Internet services, including sites that host content (s.230 Communications Decency Act). European law offers similar protection until the point that a host site is put on notice that it is carrying defamatory content (the Electronic Commerce Directive). At that point, the site must remove the material to retain its defence.

None of this detracts from Don’s point that American law would protect this student or that Chinese law does not contain a basis on which to consider the freedom of speech versus protection of reputation issues. Although, from a European perspective, this is not much of a test case for freedom of expression.

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