Challenges and Distinctiveness of Media Tort in China An Empirical Study of 800 Cases

Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases1 Zhu Li2 and Yang Huizhen3 Abstract This research examines a variety of challenges and distinctiveness of media tort in China This study is one of the main deliverables of the Cooperative Project on China’s Selected Media Tort Cases, sponsored by China Law Center of Yale University and China Youth University for Political Science Wee Kim Wee School of Communication and Information, Nanyang Technological University, Singapore Corresponding author Email: ZHUL0006@e.ntu.edu.sg Beijing Wentian Law Firm, China Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases through an empirical study of 800 real cases In order to understand what exactly media tort differentiates from ordinary (non-media) tort and how Chinese media professionals view on relevant problems, this research also collected 100 ordinary defamation cases for comparison and distributed 100 questionnaires among media professionals in Beijing to achieve these research objectives Analyses of the case materials and questionnaire responses indicate that although media tort seems to remain a steady trend in absolute case number, various pressing challenges still exist in terms of the time to close a media tort lawsuit, the amount of compensation ordered by courts, the number of co-defendants in one lawsuit, and the number of cases adjudicated at non-defendant domiciles Compared with non-media tort cases, it was found that media tort indeed stands out as a particular category in regard to litigation defendants, infringement behaviors, defenses, remedies, and so forth, which have generated a great deal of inconsistencies and confusions in judicial practice Chinese legislators need to recognize such challenges and distinctiveness, and make more progressive efforts to address these problems in present-day China Keywords: media tort, defamation, privacy, right to portraiture, infringement, defenses, remedies Introduction Along years of heated discussion over media regulation in present-day China, media tort, being defined in this research as infringement of citizens and legal persons’ right to Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases reputation, privacy, and portraiture by mass media organizations or individuals via a variety of mass communication platforms ,4 has captured the greatest attention not only from general academia but also regulatory authorities all over the country Though originally designed as a typical legal instrument to protect personality rights from illegal attacks in the aftermath of Chinese Culture Revolution, its existing significance, especially within the unique Chinese media system and culture background, has largely exceeded pure civil law boundaries, carrying more profound social legal implications in explaining a number of broader underlying phenomena such as media freedom, government censorship, and overall recognition and respect of personality values among the populace in China This prevailing interest in Chinese media tort demonstrates itself in both academic research and legislative trends explicitly On one hand, academically speaking, the past three decades - from early 1980s when Chinese media regulation was restored after the 10-year Culture Revolution to date - have witnessed a significant growing volume of media tort studies and publications in China Take Zhongguo Zhiwang (China National Knowledge Infrastructure, CNKI) for example, which is widely acknowledged as the most authoritative and comprehensive database of China-based conference papers, journal publications, and social science dissertations, a total of 541 media tort studies can be found by setting several keywords of the equivalent meaning to media tort, e.g Meiti Qinquan (Media Tort), Meijie Qinquan (Media Tort), Chuanmei Qinquan (Media Tort), and Xinwen Qinquan (Journalism Tort) Similarly, with the same set of keywords, more than 200 academic publications can be Yang Lixin was the leading civil law scholar who proposed the academic draft version of the Tort Liability Law of People’s Republic of China, in which he suggested to stipulate a specific section called Meiti Qinquan (media tort) in law, though infringement in his definition is not constrained to right to reputation, privacy, and portraiture This research only focuses on three types of personality rights because they are the most prominent and representative examples of media tort in China, with a great deal of lawsuits being brought to court every year Many scholars believe that present-day media regulation in China was officially initiated from early 1980s, when the country was transitioning from the devastating aftermath of Culture Revolution to the Reform and Opening-up Policy Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases also identified in Zhongguo Guojia Shuzi Tushuguan (Chinese National Digital Library), the largest repository of nationwide publications Media tort has also been highlighted as a major research cluster in scholarly annual review on Chinese media law research in 2005 (W Chen, 2006), 2007 (Huang & Yang, 2008), and 2010 (Huang & Yang, 2011) respectively On the other hand, legislatively speaking, arguments and debates have never faded out amidst media tort legislative progression in China At the time of writing, Chinese media tort disputes are mainly regulated by the following legislations and the Supreme People’s Court’s judicial interpretative documents: • General Principles of the Civil Law of the People’s Republic of China [1987] , thereafter the General Principles, • Opinions of the Supreme People’s Court on Several Issues concerning the Implementation of the Great Principles of the Civil Law of the People’s Republic of China [1988], thereafter the 1988 Opinion, • Explanation of the Supreme People's Court Regarding Some Questions in the Trial of Cases Concerning the Right of Reputation [1993], thereafter the 1993 Explanation, • Interpretation of the Supreme People’s Court on the Trial of the Case Concerning the Right of Reputation [1998], thereafter the 1998 Interpretation, • Interpretation of the Supreme People’s Court on Some Issues of Determining Liability for Mental Suffering Caused by Tortuous Act [2001], thereafter the 2001 Interpretation, and • Tort Liability Law of the People’s Republic of China [2010], thereafter the Tort Liability Law Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases The existent regulatory framework over media tort unambiguously specifies in principle that all citizens (natural persons) and legal persons are entitled to a variety of personality rights, and also clarified infringement elements, litigation procedures, as well as both monetary and non-monetary remedies for economic loss and mental suffering of the grieved party Many media law scholars and professionals, however, believe that these legislations, most of which were enacted more than 10 years ago, can no longer keep pace with the fastdeveloping media industry in China The current law also fails to incorporate a number of important legal principles, such as fair comment, public figure, media’s qualified privileges, etc., that have been well recognized in many developed countries for decades and even used in some pioneering judgments in China Interestingly, during 2009 to 2010, discussions over Chinese media tort even amounted to a nationwide debate on whether media tort really distinguishes from other ordinary tort and if it should be stipulated as a special chapter in the Tort Liability Law of the People’s Republic of China that was being enacted at the time so to achieve a better balance in the protection of relevant conflicting rights On one side, leading scholars who were opposed to recognize media tort as a particular problem argued that such legislative approach is not in line with both civil law and common law traditions , whereas the dominant opinions on the other side held that media tort is indeed one of the most distinctive and complex issues in personality infringement domain, carrying a good deal of peculiar problems that are yet to be further clarified by legislation Despite the interest and attention, however, very few empirical studies have been conducted to provide more concrete and persuasive answers on these questions Even among Although Chinese legal system follows civil law tradition which normally emphasizes the importance of law instead of precedent judgments, some pioneering judges still made attempts to trial new principles like fair comment and public figure before they are officially stipulated in Law For example, in Fan Zhiyi vs Oriental Sports Daily, a defamation lawsuit ruled in 2002, the court decided that Fan Zhiyi, a national football player, should be regarded as a public person, and the newspaper should be protected as its coverage related to public interest and satisfied the public’s right to know Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases those published empirical researches, often they adopted different research angles, different data sources, different sample sizes, and different analytical frameworks, resulting in relatively divergent findings and explanations within the same scenario Such inconsistency and disagreement in the research of Chinese media tort are said to be largely associated with the inadequate access to original litigation documents in China as well as potential bias embedded in the collected data Although Chinese courts of all geographic levels have principally established and adhered to open justice and open trial policy, the actual judicial practice is far from satisfactory.7 For instance, in Guangdong Province, while all provincial High Court judgments can be accessible online, only a few written judgments in lower level courts (e.g city and county level) have been made public Even though some researchers managed to acquire litigation materials from one or several local courts through official websites or by taking advantage of personal resources (e.g having friends who work in the courts or law firms), it is claimed these litigation materials are likely to reflect regional bias and cannot be considered as representative of similar cases nationwide As an alternative solution, therefore, some researchers resorted to building their analyses upon court-published cases (e.g Gazette of the Supreme People’s Court) or media reports of cases retrieved from Internet and traditional print media Again, such data sources are not free from the problems of prejudice and information deficiency For one, courtpublished cases, which are usually established as model judgments for lawsuits with similar fact situation to follow, can only represent a very small portion of court cases adjudicated in China It is also claimed that sometimes publishers would edit or even rewrite court opinions Because of the inadequate number of disclosed judgments, many judges would also find it difficult to follow previous legal experience, and some cases with similar factual situations would then result into very different verdicts Such kind of phenomenon not only harms the legal rights of plaintiffs and defendants, but also damages overall judicial integrity Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases in order to make these selected cases as perfect examples, deviating from the original case materials For another, the reliance on media coverage of tort litigation embodies obvious weaknesses and risks as well As media organizations inherently pursue cases of sensational newsworthiness according to their set of journalistic principles, they would be very likely to publicize only cases that had captured their attention, without any consciousness or responsibility to depict a picture of media tort in China as complete as possible Furthermore, given the fact that Chinese media have strong Party-state ties because of their state ownership and ideological tradition to propagandize socialism values, some media companies may intentionally avoid reporting cases that concern the interest of Party-state or themselves, which, again, brings the credibility of data sources and soundness of their arguments into question In the light of all the aforementioned considerations, the authors aimed to collect more representative media tort cases from a set of more diverse resources (including legal databases, courts, government websites, research publications, etc.)9, deepen the understanding on challenges and features of Chinese media tort, and also facilitate media tort legislative progression by offering Chinese regulators with more concrete evidence The total amount of media tort cases collected eventually reached 800.10 What is more, in order to enrich the understanding on which aspects media tort differs from other ordinary tort (by ordinary, it means non-media tort cases) and how Chinese media professionals view on these media tort issues, this research also selected 10011 ordinary (non-media) defamation cases According to the Provisions of the Supreme People's Court on Case Guidance issued on November 26, 2011, the Chinese Supreme People’s Court shall Shaixuan (select), Bianzuan (edit and compile), and Fabu (publish) guiding cases that have a guiding function for trial and enforcement by people's courts throughout the country The sample size in the other published studies on media tort did not exceed 300 Therefore, the cases collected in this study should be regarded as relatively more comprehensive 10 To clarify, the total number of 800 media tort cases was not a target the authors set up before carrying out data collection work Basically, the authors just made best efforts to collect as many media tort cases as possible from all available sources until the end of April 2009 11 This number of 100 non-media cases is intentionally established target, for the purpose of comparisons between Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases from the same legal database for comparison purpose, and distributed 100 questionnaires (96 valid returns) among media professionals in Beijing to achieve these research objectives Findings from this empirical research suggest that, although the absolute number of media tort cases in China seems have maintained a steady trend in recent years, media organizations and professionals are still confronting pressing challenges in terms of the time to close a media tort lawsuit, the amount of compensation ordered by courts, the number of co-defendants in one lawsuit, and the number of cases adjudicated at non-defendant domiciles Besides, compared with the 100 ordinary defamation cases collected from the same database, media tort also distinguishes itself as a particular category in terms of litigation defendants, infringement behaviors, defenses, remedies, and so forth, which are fundamentally rooted in the regularities and practices of whole media industry All these findings and related implications will be discussed in later sections with statistical support Data Sources and Methodology As stated in the opening section, media tort in this empirical research is defined as infringement of citizens and legal persons’ right to reputation, privacy, and portraiture by media organizations or individuals via mass media platforms The sample media tort cases collected in this study, all of which were decided by courts from 1985 to 2009 (Table 1), thereby should be in accordance with the definition and criteria, namely: 1) Infringement should be conducted by mass media organizations (e.g TV stations, radio stations, newspapers, magazines, and internet) or media-related individuals (mainly referring to reporters, news sources and other people that are involved in mass media defamation and non-media defamation categories Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases communication activities); 2) Infringement should be embedded in certain forms of mass communication activities (e.g fabricating fake information in newspapers, revealing people’s privacy on radio or TV programs, insulting or abusing others via internet, etc.); 3) At least one type of personality rights - right to reputation, right to privacy or right to portraiture – is claimed to be infringed Table 1: Number of Cases by Year in 800 Media Tort Cases Year Number Year Number 1985 1998 37 1986 1999 69 1987 10 2000 61 1988 10 2001 68 1989 16 2002 59 1990 12 2003 58 1991 2004 63 1992 2005 63 1993 18 2006 50 1994 18 2007 54 1995 24 2008 37 1996 16 2009* 11 1997 22 Unknown Total case number 800 * As data were collected till the end of April 2009, figures in the year of 2009 only reflect the situation in the first four months of that year These 800 media tort cases come from different sources: Beida Fayi [www.lawyee.net, one of the most comprehensive legal databases in China], Zhongguo Fayuan Wang [China Court Website, the official website of Chinese courts, which publishes a large amount of legal information including court judgments.], books, newspapers, Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases 10 magazines and court bulletins, judges, lawyers, plaintiffs and defendants, internet and other sources (Table 2) Among them, 42% have complete litigation documents, while the remainders are analyzed on the basis of secondary materials such as news coverage and research publications (Table 3) Besides, most cases claimed for infringement of right to reputation, 28 cases claimed for infringement of right to privacy (4%), and 97 cases (12%) claimed for infringement of right to portraiture (Table 4) Table 2: Data Sources of 800 Media Tort Cases Data Sources Beida Fayi (www.lawyee.net) Zhongguo Fayuan Wang (China Court Website) Books, newspapers, magazines and court bulletins Individuals (e.g judges, lawyers, litigants, etc.) Other (e.g internet search) Total case number Number 288 158 151 39 164 Percentage 36% 20% 19% 5% 21% 800 Table 3: Completeness of Litigation Documents in 800 Media Tort Cases Completeness of Litigation Documents With complete litigation documents Without complete litigation documents Total case number Number 338 462 Percentage 42% 58% 800 Table 4: Infringement Types in 800 Media Tort Cases Infringement Types Number Percentage Right to reputation 758 95% Right to privacy 28 4% Right to portraiture 97 12% Total case number 800 Note: 1) Infringement types are determined by plaintiffs’ claims 2) Multiple infringement claims may co-exist in one lawsuit 3) Percentage is calculated as the number of each category divides by the total sample size Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases 41 13 Compensation claimed by plaintiff is _yuan 14 Compensation claimed for economic loss is _yuan 15 Compensation claimed for mental suffering is _yuan In defamation cases: (16-22) 16 Defendants used defenses: (1 Public figure; Fair comment; Public interest; Privileges; Truth; Erroneous content has been corrected and apologies; other.) o Public figure refers to the principle that even if the reported content does not completely match with the actual truth, media organizations or professionals should not be held liable in criticizing government officials, celebrities, and other people related to public interest, as long as no intentional fabrication or gross negligence conducts can be identified or proved o Fair comment refers to comment is related to public interest, has reliable information source, can be identified as comment, and is made on an honest ground o Public interest refers to affairs that the public has reasonable interest in or related to public welfare o Privilege refers to the principle that fair and accurate reporting of public official documents and functional acts of state authorities should be protected from liability 17 Court supported the defenses (1 Public figure; Fair comment; Public interest; Privileges; Truth; Erroneous content has been corrected and apologies; None supported Other.) 18 Onus probandi: (1 Plaintiff proves falsity; Defendant proves truth; Assumption Other ) 19 Did defendant conducted continuous report to seek truth (excluding the case of continuous report to aggravate infringement)? (1 Yes; No; Unknown.) 20 If defendant used continuous report as defense, the court (1 Supported; Not supported; Unknown ) 21 Did defendant adopt measures to correction, reply, apologies or eliminate negative influences before final verdict? (1 Yes; No; Unknown.) 22 If defendant conducted the above mentioned measures, the court (1 Lightened the liability; Refused to lighten the liability; Unknown.) 23 In privacy cases, defendant used defenses (1 Public figure; Public interest; Consent; Unrecognizable; Other ) 24 In privacy cases, court supported defenses (1 Public figure; Public interest; Consent; Unrecognizable; Non supported; Other ) 25 In right to portraiture cases, defendant used defenses (1 Public figure; Fair use; Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases 42 Consent; Unrecognizable; Other ) 26 In right to portraiture cases, court supported defenses (1 Public figure; Fair use; Consent; Unrecognizable; Non supported; Other ) o Fair use refers to using another person’s portraiture for his or her own interest, for judicial needs, for media reporting on current affairs, or for scientific research or educational activities 27 Final judgment is (Overrule plaintiff’s claim; Infringement confirmed; Legal mediation; Plaintiff withdrawal; Suits dismissed; Pending to verdict; Other.) 28 If infringement is established, the tort liability is (1 Fault; Intentional; Assumption; Other ) 29 Remedies (1 Compensation for economic loss only; Compensation for mental suffering only; Compensation for both economic loss and mental suffering; Nonmonetary remedy; Other ) o Non-monetary remedy refers to cessation of the tort, restoration of reputation, elimination of defamatory effects, and apology 30 Amount of monetary compensation ordered by final court is yuan 31 Compensation for economic loss is yuan 32 Compensation for mental suffering is yuan 33 From bring lawsuit to final verdict, it takes years(s) and _month(s) 34 If litigation is pending to close, then from the time the lawsuit was initiated till March 2009, it has taken years(s) and _month(s) 35 With litigation documents available? (1 Yes No.) Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases 43 Appendix 2: Analysis Framework of 100 Ordinary Defamation Cases Jurisdiction court (1 Home jurisdiction of plaintiff only; Home jurisdiction of defendant only; Home jurisdiction of both plaintiff and defendant; Other ) Number of defendants: Compensation claimed by plaintiff is _yuan Compensation claimed for economic loss is _yuan Compensation claimed for mental suffering is _yuan Final judgment is (Overrule plaintiff’s claim; Infringement confirmed; Legal mediation; Plaintiff withdrawal; Suits dismissed; Pending to verdict; Other.) If infringement is established, the infringement behavior is conducted via (1 Letter, including SMS and email; Leaflets and posters; Oral expression; Actions; Other ) If infringement is established, the infringement format is (1 Insulting; Fabricating fake information; Releasing privacy; Other ) Remedies (1 Compensation for economic loss only; Compensation for mental suffering only; Compensation for both economic loss and mental suffering; Nonmonetary remedy; Other ) 10 Amount of monetary compensation ordered by final court yuan 11 Compensation for economic loss yuan 12 Compensation for mental suffering yuan 13 From bring lawsuit to final verdict, it takes years(s) and _month(s) 14 If litigation is pending to close, then from the time the lawsuit was initiated till March 2009, it has taken years(s) and _month(s) 15 With litigation documents available? (1 Yes No.) Note： 1、 This analysis framework is created to compare with media defamation cases and evaluate whether media tort is a distinctive category in China Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases 44 2、 In terms of the selection of cases, only defamation ones with non-media elements are included Appendix 3: Cover Letter and Questions to Media Professionals For Survey on Media Tort in China Dear media friends: We are currently conducting a survey on how media professionals view on existing media tort issues in China in order to form a better understanding of this topic and relevant challenges and features in China Please tick your choices below If your choice is “Other”, please explain your answer briefly under the question Your media organization is: A Newspaper; B Magazine; C Radio; D Television; E Other Your current position is: A Reporter; B Editor; C Department Director; D Senior Executive; E Other How long have you been working in media: A Less than one year; B One to three years; C Three to five years; D More than five years Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases 45 Have you ever been sued for infringement of reputation, privacy or portraiture in work? A Yes, I have B No, but my colleagues have experienced C Neither I nor my colleagues have such kind of experience D Other Has your media organization ever involved in reputation, privacy, or portraiture infringement lawsuits? A Yes, it has B No, it has not C I have no idea D Other According to your observation, in recent years, the cases of right to reputation, privacy or portraiture against media or media professionals: A Slightly decreased in amount; B Slightly increased in amount; C No significant change in amount; D I have no idea E Other If many media tort cases can be sued and judged at the home jurisdiction of plaintiffs, what you think will be the major impacts on media (multiple choices are allowed)? A It would be a drain on manpower and material resources of media organizations and professionals B It would reduce the chance of media winning C Little effect D I have no idea E Other Do you think republishing media should assume infringement liability, if the republication content accurately matches with the original piece? A Yes, I think so B No, I not believe that C I have no idea D Other If plaintiff claims high monetary compensation from media or media professionals, you think: A It will give great pressures on media or media professionals B It will not necessarily influence the final judgment; not much pressure C I have no idea Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases 46 D Other 10 If plaintiff is a celebrity, what would be the most effective defense in your opinion? A Public figure should tolerate slight damage B Public interest C Truth D Fair comment E I have no idea F Other 11 If plaintiff is a public official, what would be the most effective defense in your opinion? A Public figure should tolerate slight damages B Public interest C Truth D Fair comment E I have no idea F Other 12 If media have timely corrected and apologized for any obvious infringement content, the tort liability should be: A Lightened B Staying the same C I have no idea D Other 13 If media’s continuous reports have corrected or clarified preceding false statements, what type of liability you think the media should undertake? A Media should assume lighter liability because continuous reports can eliminate negative impacts to some extent B Liability should not be alleviated because damage has been generated already C Have no idea D Other 14 In recent years, the number of traditional media’s infringement cases seems have slightly decreased, what you think are the reasons: A Due to the policy of government information disclosure, media not need to obtain news information by taking the risk of infringing other’s legitimate rights B Traditional media are still subject to a variety of constraints It is difficult for them to practice the role of public supervision, so less cases are caused these days C Online media have emerged to be the major basis of public supervision, which in turn reduces traditional media’s risk of being sued in court D Traditional media have become more knowledgeable on how to protect themselves from tort cases Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases 47 E Other 15 According to some research, media’s losing rate in media cases is relatively high, what you think are the reasons: A Media and media professionals themselves have problems B Lack of protection of press freedom in law C The subjects under public supervision use cases to divert attentions, as the saying goes, criticism ends at litigation D I have no idea E Other Thank you very much for your cooperation and support! .. .Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases through an empirical study of 800 real cases In order to understand what exactly media tort differentiates... excessive pressure on media Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases 16 organizations and professionals Graph 2: Number of 800 Media Tort Cases Note: As... valid returns Challenges and Distinctiveness of Media Tort in China: An Empirical Study of 800 Cases 22 More Co-defendants in Media Tort Cases Another major challenge in Chinese media tort is the