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7. The Libel Card: Suits That Inhibit

 

Chinese journalists see the widening use of civil libel suits as an attempt to inhibit critical coverage of corporations and powerful local figures.


P


u Zhiqiang is a hulk of a man who wears the wry smile of a country boy taking on the big city. An attorney who has represented authors, journalists, and news media in civil defamation suits filed by officials and corporations, Pu is at the forefront of legal efforts to defend the right of journalists to write critically without fear of crippling financial reprisal.

“When officials and rich corporations file these cases, they usually win,” Pu told CPJ. With local courts generally protecting powerful local interests, he noted, “the media doesn’t have a chance.”

One of his defining cases was in defense of Chen Guidi and Wu Chuntao, a husband-and-wife team who coauthored a book examining rural life in China. Published in 2004 and later translated into English under the title Will the Boat Sink the Water? The Life of China’s Peasants, the book was a surprise bestseller in China, but it didn’t enrich its authors. Though the book shied away from criticizing central party or government officials, its appraisal of corruption among party officials at the local level was enough to get it banned from distribution. The bulk of its sales involved pirated copies.

But the more direct challenge came from Zhang Xide, the former party secretary of the county of Linquan, in central China’s Anhui province. Accusing the pair of defaming him in their representations of abuse and extortion, Zhang brought them to court in Linquan, where his son worked as a judge, to sue for damages of around 200,000 yuan (US$26,000). Pu presented a forceful argument in defense of their right to present well-researched documentation of official abuse, but the attorney could not win a decisive victory. After the trial ended, the judge simply failed to deliver a verdict. According to a 2007 interview that Chen and Wu gave to Radio Free Asia, the book’s publisher privately paid Zhang 50,000 yuan (US $6,500) to stop pursuing the case.

Waiting for a Verdict

The attorney urged Judge Qian Huiguang to render a verdict that would set a precedent in the interpretation of defamation law in China. Translated excerpts are below. To this day, no verdict has been issued in the case.

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W

ith more space and incentive for reporting on financial issues and local corruption, the press has had more chances to anger local officials and businesses since media commercialization began in the 1990s.

The number of civil defamation cases began to rise as a result. A study by Yale University professor Chen Zhiwu showed a dramatic increase in civil defamation suits filed against the media from 1999 until the end of 2002, with a corresponding increase in the amount of damages sought. In 2006, Columbia University law professor Benjamin Liebman published a study of civil libel cases filed between 1995 and 2004. Liebman noted that, while documentation of these cases is incomplete, those reported by the media are most often decided against the press.

Chinese journalists see the widening use of civil libel suits as an attempt to inhibit critical coverage of corporations and powerful local figures. (Central party and state officials do not file libel suits because they do not need to: Official restrictions on the press ensure that national leaders are not targets of media criticism.)

A suit filed in Shenzhen in 2006 pointed up the potential for abuse of libel laws. The case ended positively for the news media, but foreign pressure played a role in the resolution. In July 2006, the Shenzhen subsidiary of Taiwan-based electronics manufacturer Foxconn sued a reporter and an editor of the daily Diyi Caijing Ribao (China Business News) for a total of 30 million yuan (US$3.9 million), and a local court froze the journalists’ personal assets—including real estate, cars, and bank accounts—pending a hearing. Reporter Wang You and editor Weng Bao had angered the company when they reported allegations that workers were mistreated at Foxconn’s Shenzhen plant, which assembles iPods for U.S. computer giant Apple. A subsequent investigation by Apple found overcrowded housing conditions, an outdated system of pay, and instances of harsh treatment.

The Chinese news media rushed to the journalists’ defense, accusing Foxconn of using the court system to violate press freedom. The media attention, and apparent behind-thescenes intervention by an embarrassed Apple, was enough to convince the company to drop the case entirely, after first lowering its damage request to a token one yuan.

Scholars and lawyers advocating reform of China’s defamation laws have recommended limiting the law’s use by public figures. But without a judicial system independent of party control and local influence, any specific reform is unlikely to go far enough in protecting journalists and news organizations who are sued within the jurisdiction of the officials they offend. Local judges are appointed by local governments, approved by local party cadres, and report to the local legislative bodies. In such an environment, protectionism is endemic. And while the courts have become increasingly professional since the end of the Cultural Revolution, there is still a long way to go.

“Most judges at the local level are not trained legally at all,” said Chen, the Yale University scholar whose studies of defamation law helped start the debate. “This adds another layer of difficulty for any reform to be implemented.”

Others point out that civil defamation litigation can offer a legitimate means of redress for individuals whose interests have been harmed by false news reports. Liebman noted that in China, where the media is under the control of the party and the state, libel cases arealso used as a tool for ordinary citizens to fight against official reports accusing them of crimes. Defamation litigation can be a way of using the court system to challenge state authority, even by journalists. When Sheng Xueyou, a veteran freelance reporter based in Beijing, angered local officials in the city of Qitaihe by reporting on a coal mine ownership dispute, a municipal Web site accused him of bias and a lack of journalistic ethics, according to China Youth Daily. Disputing the Qitaihe officials’ account, Sheng filed a civil defamation suit against them in March 2007. The case is pending.

Though rarely applied, defamation is also listed as a criminal offense in China. Article 246 of China’s criminal code states that, in serious cases, the crime of public humiliation or defamation can result in up to three years’ criminal detention, surveillance, or deprivation of political rights. State prosecutors do not initiate criminal defamation cases unless “serious harm is done to public order or to the interests of the state.”

The criminal charge was used in a 2004 case against Zhang Ruquan, who wrote a commemorative essay about Mao Zedong that was posted online and distributed in leaflets in the city of Zhengzhou. For an essay criticizing China’s current leaders for abandoning its workers and leaving them without access to education or health care, both the writer and the leafletter Zhang Zhengyao were accused of defaming former Chinese leaders Deng Xiaoping and Jiang Zemin. Though the court accepted the defense argument that, since Deng was no longer living, he could not be defamed, the two were sentenced to three years’ detention for defaming Jiang. Zhang Ruquan was released, ostensibly for health reasons, in May 2005, seven months after his arrest. The leafletter was not so lucky: Zhang Zhengyao was released in February 2007 after spending almost two and a half years in jail.

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oreign journalists and news organizations face little risk of defamation charges in China. Though clearly angered by some foreign coverage, Chinese officials at all levels have focused their efforts on controlling domestic coverage. This distinguishes it from a place like Singapore, where government leaders have filed lawsuits seeking exorbitant damages after criticism from international news organizations, including The Economist, the Far Eastern Economic Review, and the International Herald Tribune. But unlike Singapore, where foreign news outlets have a relatively large domestic readership, China has significant limits on the distribution of foreign media within its borders.

Although only institutional reform would ensure press freedom in China, CPJ has found that several steps could make the current system more just.

First, criminal defamation should be taken off the books. Like the overly broad national security laws that have been used to jail Chinese journalists for their work, criminal defamation charges present a clear threat to the right of journalists to report the news and criticize public officials. Second, the civil defamation law should be reformed to protect the rights of journalists to express their opinions and to report critically on public bodies, public figures, and powerful corporations. Civil courts are an appropriate venue for resolving disputes, but libel damages should be proportionate to the actual harm caused. Public figures, particularly in a country where they often have too much rather than too little control over media coverage, should have less recourse to damages under defamation laws. And truth should be an absolute defense.

 

> Chapter 8
'Secrets' and Subversion: The Limits of Expression

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