Thursday, September 8, 2016
Ten years ago (can it really have been that long?) I posted about defamation law in China, noting that one feature that differentiates it from defamation law in at least some other jurisdictions is that while on the one side there is a recognition of the harm that can be done by nasty speech, there is not on the other side any pushback from a countervailing value of free speech (in the case of the U.S., for example, a constitutionally-protected countervailing value). Thus, it has the potential to go very far in the direction of policing everyday speech quite stringently.
The latest development is a case where Hu Wei, a CCTV television personality, made a series of posts last month on Sina Weibo (Chinese twitter) insulting people from Henan province (a common target of popular prejudice, combining a Manhattanite's image of Appalachians with Donald Trump's image of Mexican immigrants). Apparently he really has it in for Henanese, having made another Weibo post in April saying that they were all good-for-nothings who knew only how to have babies, steal, and boast.
Jing Changshui, a resident of Henan [NOTE: corrected from "Hunan"] decided he had had enough and brought suit on August 31st against Hu and the operator of Sina Weibo in a local court in -- you guessed it -- Henan (in the city of Zhengzhou). He seeks removal of the offending posts and a commitment to post no more of them, an apology to the people of Henan in national and provincial media, and damages of 1000 yuan for emotion distress. For various reasons, he wishes to characterize his suit as a public interest suit, not an individual suit.
When a suit is brought, there's a preliminary gatekeeping stage in which court decides whether there's enough there to justify going further. This decision is called li'an (立案), often translated as "docketing". Courts have a week to make this decision. Just as the deadline was approaching, on Sept. 7th, the Zhengzhou court decided to docket the case. This means that it will now go forward: the plaintiff will have the opportunity to plead and prove his case, and the defendant will have to show up and defend.
Although docketing the case does not mean that the plaintiff wins, it does mean that the court is unwilling to say that as a matter of law, the facts as alleged by the plaintiff simply don't state a legal claim. Put another way, the court is saying that at least in some circumstances, making nasty generalizations about a group can lead to liability.
This is not at all surprising, given what we already know about the operation of defamation law in China. Nevertheless, it does clarify (and a decision in favor of the plaintiff might clarify even further) the scope of defamation law: that it extends to groups. At the same time, I'm not sure why this is being presented in the press as some kind of breakthrough or difficult case: a similar case on similar grounds was brought in 20o5 and accepted by a Henan court; it ended in a settlement.
I found this case especially interesting when I ran across it today because it was only yesterday that I ran across an instance of what is arguably group defamation committed by Air China against Indian, Pakistani, and black residents of London (and possibly worldwide). The photograph below is from an article in Air China's inflight magazine about London:
I confess I can't remember (or perhaps never knew) the precise rules on suing a defendant inside China under Chinese law for a tort when the victim is outside China. Presumably the effect of the tort is felt both within China (when the magazine is read on a domestic flight) and outside. I'd welcome comments on whether a lawsuit in China against Air China by offended residents of London would be at least theoretically possible, given the endorsement of group defamation theories by the Zhengzhou court.