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

Challenges and Distinctiveness of Media Tort in China:

An Empirical Study of 800 Cases 1

Zhu Li2 and Yang Huizhen3

This research examines a variety of challenges and distinctiveness of media tort in China 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 comparisonand 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 pressingchallenges 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 progressiveefforts 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 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 generalacademia 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 threedecades - from early 1980s when Chinese media regulation was restored after the 10-year Culture Revolution to date 5 - 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

4 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.

5 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.

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 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 majorresearch 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 tortdisputes are mainly regulated by the following legislations and the Supreme People’s Court’sjudicial 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

The existent regulatory framework over media tort unambiguously specifies in principlethat 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 fast-developing 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 6 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

6 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

Despite the interest and attention, however, very few empirical studies have been conducted to provide more concrete and persuasive answers on these questions Even amongthose 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 sourcesare not free from the problems of prejudice and information deficiency For one, court-published cases, which are usually established as model judgments for lawsuits with similar

7 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.

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

in order to make these selected cases as perfect examples, deviating from the original case materials 8 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 tortlegislative progression by offering Chinese regulators with more concrete evidence The totalamount 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

8 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.

9 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

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 from the same legal database for comparison purpose, and distributed 100 questionnaires (96valid 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:

11 This number of 100 non-media cases is intentionally established target, for the purpose of comparisons between media defamation and non-media defamation categories

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

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

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,

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

Books, newspapers, magazines and court bulletins 151 19%

Individuals (e.g judges, lawyers, litigants, etc.) 39 5%

Table 3: Completeness of Litigation Documents in 800 Media Tort Cases

Table 4: Infringement Types in 800 Media Tort Cases

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 (800 in this situation)

In addition, 100 ordinary defamation cases were randomly collected from the same

database, Beida Fayi (www.lawyee.net), all with complete legal documents, to compare with another 100 media defamation cases selected from the total 800 sample pool By ordinary, it

means excluding all media-related elements:

1) Defendants should be ordinary citizens or legal persons, without relevance or employment relationship with media organizations;

2) Claimed infringement should be carried out through non-media forms, such as handwritten letter, poster, oral expression, or behavior (Table 5)

Table 5: Infringement Forms in 100 Ordinary Defamation Cases

1) Only cases that were confirmed as infringement by courts are included

2) Five cases involved two types of infringement forms

3) Percentage is calculated as the number of each category divides by the total case number (55 in this situation)

To ensure commensurability between ordinary defamation and media defamation categories, this research first implemented a random sampling among the 800 cases and obtained 600 qualified media defamation samples Then, within the 600 cases, the authors selected 100 media defamation cases through systematic sampling, which refers to sampling according to a fixed interval, to compare with the ordinary defamation counterparts

The authors also surveyed 100 Chinese media professionals’ for their perspectives on media tort issues, with a total of 100 questionnaires distributed and 96 valid responses received Most respondents are reporters, editors, section directors and senior executives (Table 6) from newspapers, magazines, TV stations, radios stations and other media

organizations (Table 7), with more than five years of working experience in media industry (Table 8)

Table 6: Positions of Questionnaire Respondents

Note: Two cases where respondents have more than one position are excluded

Table 7: What kinds of media do questionnaire respondents work in?

Magazine 28 29%

Note: 100 questionnaires were distributed, with 96 valid returns

Table 8: How long have the questionnaire respondents worked in media?

Note: 100 questionnaires were distributed, with 96 valid returns

Data collection was mainly undertaken by the two authors, with substantial support from the Cooperative Project on China’s Selected Media Tort Cases that was sponsored by China Law Center of Yale University and China Youth University for Political Science, as well as assistance from a group of Chinese graduate students majoring in media law and policy Following the analysis frameworks (Appendices) designed on the basis of previous literatures, the authors and graduate students read through sample materials case by case, identified needed information and input them into the most appropriate categories

respectively

Challenges in Chinese Media Tort Litigation

Zhongguo Falv Nianjian (China Law Yearbook), the authoritative database for statistics

on all types of defamation lawsuits on a yearly basis (Table 9 and Graph 1), indicate that from 1993 to 2001 there was a continuous growth in the occurrence of defamation lawsuits, with the highest increase of 17.78% in 1999 and the lowest increase of 5.3% in 1997

However, from 2002 onwards, defamation cases showed a steady decrease year by year and the number of defamation lawsuits in 2004 is nearly 1,500 fewer than in the year of 2002 Although there are no specific statistics available on media defamation cases, judging from some scholars’ observation and judges’ estimation that media tort make up 20% of all tort cases, the number of media defamation cases should reach approximately 1,000 on average every year

Table 9: Number of Defamation Cases in China according to Zhongguo Falv Nianjian

(China Law Yearbook)

Coincidentally, the 800 media tort cases collected in this research (of which 95% involves defamation claims) also suggest that media tort cases continued to increase from

1985, keeping a stable trend during 2000 to 2005, and then followed by a continuous decline (Table 1 and Graph 2) Going by the absolute numbers alone, media tort in China seems to have entered into a period of calm with fewer cases still being brought up against each media

organization on average The media litigation upsurges observed by Xu Xun, namely, “Xiao

Renwu (Little people)”, “Da Mingxing (Celebrities)”, “Gongshang Faren”(Business and

corporate entities) and “Zhengfu Guanyuan (Government and officials)” suing media and reporters since the General Principles of the Civil Law of the People's Republic came into

effect in 1987 seem to have cooled down as well Accordingly, some scholars who were

opposed to regulate media tort in the Tort Liability Law opined that media tort is not a

challenging issue to legislate in China as there seems to be no excessive pressure on media organizations and professionals

Graph 2: Number of 800 Media Tort Cases

Note: 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

The absolute number of media tort cases, however, is not the only criterion of assessingwhether this problem is pressing or not From the survey of media professionals in this study, the researchers find that more than half (59%) media professionals and half (50%) media organizations have encountered media tort lawsuits (Table 11 and 12) As will be illustrated in subsequent sections, given that media tort lawsuits usually take longer to close, often result into higher monetary compensation, commonly involve more defendants, and plaintiffs can almost bring lawsuits wherever the media content is circulated, even if a media

organizations only needs to handle one media tort lawsuit within a year, they may suffer great pressures and monetary loss, not to mention those outspoken media organizations such

as Nanfang Dushibao (Southern Metropolis Daily), which invariably has a number of media

tort lawsuits every year

Table 11: Have you ever been sued for infringement of reputation, privacy or portraiture in

work?

Neither I nor my colleagues have such kind of experience 36 38%

Note: 100 questionnaires were distributed, with 96 valid returns

Table 12: Has your media organization ever been involved in reputation, privacy, or

portraiture infringement lawsuits?

Note: 100 questionnaires were distributed, with 96 valid returns

Longer Time to Close Media Tort Cases

Analysis of the 800 media tort cases indicates that the average duration from bringing asuit till the final judgment is 12 months In other words, more than half cases took more than one year to close, with the longest one amounting to 12 years and three months (Table 13)

Table 13: Average Time Duration of the 800 Media Tort Cases

12 months 12 years and 3 months (147

Table 14: Comparison of Time Duration between 100 Ordinary Defamation Cases and 100

Media Defamation Cases

Higher Monetary Compensation in Media Tort Cases

The average monetary compensation in cases that are confirmed as infringement or

have reached into settlement outside courts is 70,964 yuan (approximately U.S $11,228),

including compensations for both economic and mental loss, with the highest compensation

of 5 million yuan (approximately U.S $791,139) ordered in the year of 1995 (Table 15) The average compensation in media defamation case is 44,461 yuan (approximately U.S $7,034), compared with 6,847 yuan (approximately U.S $1,083), a one sixth, in non-

media defamation (Table 16)

Table 15: Monetary Compensation in 800 Media Tort Cases (unit: yuan)

Year Average Compensation Highest Compensation

Note: Only cases with clear monetary compensation information are included

Table 16: Comparison of Monetary Compensation between 100 Ordinary Defamation Cases

and 100 Media Defamation Cases (unit: yuan)

Note: Only cases with clear compensation information are included

More Jurisdictions at Non-defendant Domiciles in Media Tort Cases

“Plaintiff accommodating the defendant” is the established territorial jurisdiction

principle in the Civil Procedural Law of the People’s Republic of China, which aims to not

only create convenient conditions for courts to investigate case particulars and execute legally effective judgments, but also prevent plaintiffs from abusing their litigation rights

and costing defendants unnecessary economic damages However, the 1998 Interpretation

stipulates in Article 4 that, “The court that is located at the place of infringement or at the defendant’s place of residence also have jurisdiction authority over various defamation cases” Here, the place of infringement includes both the place of initial occurrence and the place of consequence And the Supreme People’s Court further articulated that the domicile

of the plaintiff could be regarded as the place of consequence Therefore, the jurisdiction principle in media tort cases often reverses to be “defendant accommodating the plaintiff”, and many plaintiffs could easily choose any place in the media circulation area to bring lawsuits as long as within time limit of actions 12

As Table 17 shows, the number of cases judged at the home jurisdiction of plaintiff only is twice more than the number at the home jurisdiction of defendant alone

Table 17: Jurisdiction of 800 Media Tort Cases

12 This is also called “Defamation tourism”, which is a form of forum shopping that plaintiffs choose to file defamation suits in jurisdictions that will be more likely to give a favorable result

Similarly, among the 100 media defamation cases, the number of cases judged at the home jurisdiction of plaintiff only is three times more than the cases judged at the home jurisdiction of defendant only, whereas for the 100 ordinary defamation cases, 86% of the cases were judged at the home jurisdiction of both parties (Table 18)

Table 18: Comparison of Jurisdiction between 100 Ordinary Defamation Cases and 100

Media Defamation Cases

Number Percentage Number Percentage

Given the fact that more media tort cases can be sued and judged at the home

jurisdiction of plaintiff only, 44% media professionals indicated in the questionnaire that thiswould be a “drain on manpower and material resources of media organizations or media professionals”, 30% believed that “this would lower the chance of media winning”, and only 18% interviewees thought that this would have little effect on media (Table 19)

Table 19: If many media tort cases can be sued and judged at the home jurisdiction of

plaintiffs, what do you think will be the major impacts on media (multiple choices are allowed)?

It would be a drain on manpower and

material resources of media

organizations and professionals

It would reduce the chance of media

winning

Little effect 17 18%

Note: 100 questionnaires were distributed, with 96 valid returns

More Co-defendants in Media Tort Cases

Another major challenge in Chinese media tort is the large number of co-defendants being sued in one case On one hand, it is commonly witnessed that different types of

defendants can be sued together in one lawsuit Among the 800 media tort cases, 165 cases (21%) have media organizations and authors involved as co-defendants, 44 cases (6%) have media organizations and news sources as co-defendants, and 34 cases (4%) have media organizations and other types as co-defendants (Table 20) On the other hand, since litigationcost is relatively low for plaintiffs in China (For infringement of right to reputation, privacy,

or portraiture cases, the litigation charge generally ranges from 100 to 500 yuan -

approximately U.S $16 to $79 - per case, with additional charges if the claimed monetary

damage exceeds 50,000 yuan - approximately U.S $7,911),13 it is relatively easy for

plaintiffs to sue many media organizations in one single case, including cases that original media and reprint media sued together, cases that fact reporting media and comment

releasing media sued together, and cases that online media and traditional media sued together In some situations, the number of media co-respondents can even surpass 10 For example, in 2004, Mr Tang Jili, a Hong Kong famous film director, brought a defamation

13 Refer details in the Measures on the Payment of Litigation Costs, which was issued by the State Council on December 19,

2006.

suit against a author named Rui Yanhong together with another 10 media organizations and

websites including Youth Times, Chengdu Business Daily, Jiangnan Times, Sina.com, and

Sohu.com, claiming that these defendants published or reprinted an article about the rumor

that his ex-girlfriend leaped to her own death for him Even worse, in the Song Guanjun

case of 2008, the plaintiff sued nearly 100 media organizations and websites together, ranking to the case involving the largest number of co-defendants among the 800 media tort cases

Table 20: Defendant Types in 800 Media Tort Cases

Distinctiveness of Media Tort in China

Proceeding to the issue of media tort’s distinctiveness in China As a matter of fact, findings from this empirical research suggest that media tort does stand out as a peculiar category in terms of the types of defendants, the infringement behaviors, litigation defenses, and legal remedies What is more, failing to recognize such distinctiveness in media tort is