Friday, November 10, 2006
This case is not exactly news - it was reported back in August - but I wanted to hold off posting about it until I got a copy of the judgment (see below).
Chen Tangfa (陈堂发), a journalism professor, sued a blog hosting service for not taking down insulting comments about him posted by a student. The comments, while certainly insulting (猥琐人wretched/tedious person, 烂人烂教材 rotten person and rotten teaching materials, 流氓 hooligan), fall I think comfortably within what we might call expressions of opinion rather than assertions of fact. [Nov. 11 FOLLOW-UP: I had not seen 猥琐人 before and relied too much on my prudish dictionary. As Willi Hao's comment suggests, it does indeed have a sense of "dirty" or "perverted".]
The court judgment found the comments actionable and the blog hosting service liable. My quick review of the judgment suggests the following interesting aspects of the issues dealt with by the court:
- Did the post infringe on the plaintiff's rights? The defendant argued (unsuccessfully, of course) that the poster had no subjective intention to harm the plaintiff.
- Was the hosting service liable? The defendant argued (lamely, in my opinion) that the defendant failed to provide proof of his identify. Whether the hosting service had a duty to remove the statements if the plaintiff had gone through the proper procedures seems not to have been an issue.
- An crucial non-issue was whether the statements were or were not actionable as defamatory. In other words, the plaintiffs did not argue that you may insult people with impunity in China provided you do not cross some line. Insults are harmful, and so you must bear liability.
My shallow acquaintance with defamation law suggests that the plaintiff's claim would not succeed in jurisdictions like the United States. This is not because nobody here thinks insults aren't harmful and sometimes quite unjustified. It's because there is a countervailing value - free speech - that must be considered as well. Although the Chinese legal system might well, if it thought about it, arrive at a different way of striking the balance between these two values, here (and in many defamation cases) the countervailing value doesn't seem to enter into the calculation at all. There is just no pushback. (For a far more detailed and nuanced view of Chinese defamation law than I can manage here, see Prof. Ben Liebman's excellent article on the subject, "Innovation Through Intimidation: An Empirical Account of Defamation Litigation in China.") The irony of this suit being launched by a professor of journalism needs no elaboration.
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