Sunday, September 11, 2016
The other day I posted about the concept of group defamation in China, noting that Chinese courts have upheld complaints in which members of a particular group sought damages or other legal remedies against those they believed had insulted their group.
The two interesting legal issues in cases like this are (1) under what circumstances can any group member sue for an insult to the entire group, and (2) what sort of commentary counts as an actionable insult (i.e., does the insult have to be an allegation of a particular fact that could be verified as true or not true (such as Donald Trump's allegation that Mexican illegal immigrants are rapists), or can it be just an offensive expression of opinion ("so-and-so is a jerk")?
In the United States, the answer to question 2 is that it must be an untrue allegation of a particular defamatory fact, not just something that is clearly the expression of an opinion that nobody would mistake for a factual allegation. The answer to question 1 is that if it's the group that has been insulted, an individual cannot sue unless the group is so small and identifiable that those who heard the defamatory statement would readily connect it to that individual. (This at least is my understanding; I'm not a libel law expert.) I note this only for comparative purposes and not to suggest that the U.S. rule is one that everyone else should follow.
As my post noted, in China neither of these is true. One can sue for a generally insulting expression of opinion, and group members have standing even when the group is huge (for example, all Henan residents).
That being said, there is an exception to these restrictive rules on free speech: we find courts sympathetic to expansive protection of speech when the insulter reflects government views. This is not the rationale courts provide, of course, which means that we can find different and quite irreconcilable principles cited by courts in these cases.
The latest example of this is two decisions handed down by the Beijing 1st Intermediate Court and the Beijing 2nd Intermediate People's Court on the same day last February in the cases of Hong Zhenkuai and Huang Zhong. (For a full account, from which the following borrows liberally, please see this post on the Fei Chang Dao blog.) They were the writer and editor respectively of an article in the liberal journal Yanhuang Chunqiu (炎黄春秋) that questioned the accuracy of historical accounts of some revolutionary heroes.
After the publication of the article, Mei Xinyu (梅新育) posted this response on his Sina Weibo (Chinese twitter) account:
"What is motivating these editors and writers at 'Yanhuang Chunqiu'? . . . . Is it too polite to say this kind of writers and authors are sons of bitches?"
《炎黄春秋》的这些编辑和作者是些什么心肠啊？. . . . 说这样的作者和编辑属狗娘养的是不是太客气了？
The same day, Guo Songmin (郭松民) reposted Mei’s post and added the following comment on his Sina Weibo account:
Oppose historical nihilism; if nothing is done about this gang of sons of bitches it's a joke!
Hong and Huang sued both Mei and Guo and lost. The reasoning of the courts boiled down to the following propositions: (1) Neither Mei's nor Guo's posts identified the plaintiffs with sufficient specificity for the court to find that the remarks were directed at them; (2) in casting doubt on revolutionary heroes, their posts hurt the feelings of the defendants and therefore they had it coming to them.