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Wednesday, October 31, 2012

What would happen if Wen family members sued the New York Times in China?

Yesterday I talked about what might happen if Wen Jiabao or his relatives tried to sue in the United States over the recent New York Times story on the Wen family forture. Today I’ll talk about the legal standards that would apply if they tried to sue in China. Please note that this issue is distinct from two other issues:

  • Would they win if they sued? Almost certainly. I can’t imagine a Chinese court handing a defeat to a sitting or former premier or his immediate family in a case like this.
  • Will or should they sue? Very possibly not. Although the family might have a lock on the outcome, a lawsuit means more publicity and unforeseeable further consequences. They might win the battle and lose the war.

Having gotten that out of the way, let us proceed.

As I’m not an expert in this area, a key source for me is Benjamin Liebman’s article Innovation Through Intimidation: An Empirical Account of Defamation Litigation in China, 47 Harv. Int'l L.J. 33 (2006). Prof. Liebman has also kindly shared his thoughts in some further communications and I’ve done a bit of my own research as well. (Needless to say, Prof. Liebman is not responsible for the conclusions I draw in this post.)

With Prof. Liebman’s permission, I am posting here an extract from the Innovation article in which he explains the legal framework. Here’s the key part:

“[There are] three general circumstances under which defamation will be found: (1) where the content of news reports is ‘seriously mistaken’ or, in the case of critical news reports, where the ‘basic content’ of such reports is incorrect, and such mistakes or inaccuracies result in harm to reputation, (2) where insulting or slanderous language results in harm to reputation, or (3) where unauthorized revelation of personal details causes harm to reputation. [This suggests] that, although the truth of a media report may be a defense to a claim of harm to reputation, truth is not a defense where the alleged defamation results from insulting words or from revelation of personal details.” (Internal footnote omitted.)

Although China promulgated its Tort Law after Prof. Liebman’s article was published, it doesn’t change the accuracy of this summary. The Tort Law protects the right to reputation and dignity, but with no details, so presumably pre-existing interpretations still apply.

Here are the key refinements to this summary:

  • “There is no public person doctrine in Chinese defamation law (although some within China have called for the adoption of such a standard, and a small number of courts have in effect adopted such a standard in individual cases).” (Liebman, personal communication.)
  • “[The rule] that the media shall not be liable for critical reports that are ‘basically correct’ has permitted courts both to overlook significant errors in reporting and to base liability on minor errors.” (Liebman, Innovation.)
  • “[J]ournalists complain that courts generally place the burden of proof on the media, forcing them to attempt to prove that even small details in their reports were correct.” (Liebman, Innovation.)
  • Truth is a defense to a criminal libel charge. (Criminal Law, Art. 246; 《刑法学》,黎宏著,2012年版,第689页到第690页,北京,法律出版社; 《刑法各论》,周光权著,2008年版,第75页,北京,中国人民大学出版社.)

And what about the law in practice? Here’s the bottom line:

  • “Chinese defamation law generally is pro-plaintiff, both in formal law and in application. Truth is not always a defense, and courts have often in effect required that the media prove the veracity of statements. There is also significant wiggle room in the relevant Supreme People’s Court Explanation when it comes to defining whether the ‘basic content’ of media reports was correct or not. Chinese journalists have often complained that the legal framework governing defamation claims puts them at a significant disadvantage when they are sued.” (Liebman, personal communication.)
  • “Defamation has often been used by officials in response to negative media reports.  However, officials who have brought such suits have virtually all been low-ranking, and the targets of such lawsuits have been domestic media. I am not aware of prior suits brought by senior officials or of suits against foreign media.” (Liebman, personal communication.)

So where does this leave us?

  • Truth is a defense to criminal liability.
  • Truth is sometimes a defense to civil liability.
  • Truth is not a defense where insulting language has been used.
  • Truth is not a defense where the complaint is of harm to reputation caused by the unauthorized revelation of personal details.
  • Even in the absence of political considerations, Chinese defamation law is generally sympathetic to plaintiffs. The countervailing value of free speech just doesn’t cut a lot of ice; Chinese law doesn’t worry much about overbreadth and chilling effects.
  • No officials of Wen’s stature have brought defamation suits against foreign media before. I suspect, but do not know for sure, that this holds true for immediate relatives of officials of Wen’s stature.

Thus, if Wen or his relatives were ordinary folks without political influence (impossible to imagine, of course, given that we are not relaxing the wealth condition in the hypothetical), it seems to me that it could go either way. It’s possible although by no means certain that they could win a suit in China even if the statements in the NYT article are accurate. A court might plausibly find that the amount and nature of one’s wealth are protected personal information. (I have not checked, however, to see if there are any cases that address this particular question.) If not, though, then the other conditions for liability don’t seem to be met; it’s hard to argue that the article uses insulting language of the kind that has gotten defendants into trouble before.

If, of course, the statements are not accurate, then their chances of winning go up quite a bit. The courts are already sympathetic to plaintiffs, and there is no public figure doctrine that gives the press extra leeway to make mistakes. Finally, there is no cost to courts in making a foreign press organization liable in tort, whereas domestic press organizations have a certain amount of clout.

http://lawprofessors.typepad.com/china_law_prof_blog/2012/10/what-would-happen-if-wen-family-members-sued-the-new-york-times-in-china.html

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