Author name: Branden Loizides

Introduction*

Consider two recent defamation cases in Chinese courts. In 2004, Zhang Xide, a former county-level Communist Party boss, sued the authors of a best selling book, An Investigation into China’s Peasants. The book exposed official malfeasance on Zhang’s watch and the resultant peasant hardships. Zhang demanded an apology from the book’s authors and publisher, excision of the offending chapter, 200,000 yuan (approximately U.S.$25,000) for emotional damages, and a share of profits from sales of the book. Zhang sued in a local court on which, not coincidentally, his son sat as a judge.

In 2000, Song Dianwen, a peasant, sued the Heilongjiang Daily, the official paper of the Communist Party, in his home province for defamation after it published an article reporting that, during a village disturbance, Song had lit a fire that killed two people. He won a judgment from a local court, affirmed on appeal, for 3,500 yuan (approximately U.S.$430) in emotional damages.

The cases exemplify two different tracks of defamation litigation in present-day China. Track-one cases, like Zhang’s, are brought by local public officials, government and Communist Party entities, or corporations to punish and control the increasingly aggressive Chinese media. In these cases, courts serve as state institutions at the local, as opposed to central, level to restrict and retaliate against the media and to block central oversight. On the second
track, persons without power or Party-state ties sue the media, which, despite widespread commercialization, virtually all continue to be linked to the Chinese Party-state. Many such cases are brought by ordinary persons against Communist Party mouthpiece newspapers. Track-two cases thus represent a deployment of the courts by ordinary citizens against state entities. Empirical evidence from 223 defamation cases studied in this Article indicates that
the media lose the overwhelming majority of cases on both tracks.

The conventional wisdom, taking track-one powerful plaintiff suits as the paradigm, perceives defamation litigation in local Chinese courts as yet another lever of state control over the increasingly autonomous Chinese media. Track-one developments in China correspond to experiences in other contemporary single-party states, where libel laws often serve to restrict individual rights, and to the use of defamation law to preserve state authority in Western legal history. By neglecting track-two cases, however, this popular view shortchanges the extent to which defamation litigation in China also serves a countervailing function: the use of courts by ordinary persons to challenge state authority. The conventional wisdom also overlooks the degree to which defamation litigation reflects growing use of the formal legal system by local authorities to resist central Party-state control.

The development of defamation litigation, on both tracks, illustrates the complex and evolving roles of courts, media, and civil litigation in China. Analysis of the claims and outcomes in 223 defamation cases suggests that use of defamation litigation by track-one plaintiffs for repressive purposes is encouraging both ordinary persons to use such cases to protect their own interests and courts to become increasingly important arbiters of individual rights. Through these processes, instrumental use of the courts to protect local interests is legitimizing the role of courts in Chinese society. Defamation litigation serves
to intimidate and restrain the Chinese media, but in a system in which the media are not free of state control, such cases may also increase state accountability. This story is not as simple as commonly believed, but, better understood, it adds signiªcant insight into the nature of legal innovation and institutional development both in China and in other developing legal systems.

In prior work I have shown how close Party-state ties give the media extensive power both to inºuence the courts and to resolve disputes, power that has increased even as the media have become increasingly commercialized and have begun to assert new autonomy. A high rate of media defeats in defamation cases does not alter that conclusion. The fundamental fact is that the media often have far more real authority and power in the Chinese legal system than the courts. China’s courts remain institutionally weak and subject to extensive external inºuence, particularly from the local Party-state. The media continue to exert inºuence across a range of cases, and the total number of defamation cases brought against the media is relatively small when compared to the total volume of civil litigation in China.

Still, defamation cases are worthy of independent study. These cases represent an area in which the media frequently are a weak party, in particular when sued by courts, judges, and other local officials and state entities. Such cases suggest that courts are increasingly able to challenge the media’s broader authority and influence. Understanding the media’s strong position in the Chinese system helps explain why courts and other local ofªcials and state
entities have turned to litigation to combat media oversight: They possess few other tools to challenge media verdicts. Yet defamation cases also show that courts are not always swayed by the relative power of litigants before them. In cases brought by ordinary persons, court verdicts in favor of plaintiffs often reºect judicial willingness to rule against powerful entities.

This Article proceeds in three Parts. Part I sets out the methodology of the study, the legal framework governing defamation law, and the early development of plaintiff-favoring defamation cases in the 1980s and 1990s. Part II analyzes 223 defamation cases brought in China in the past decade, with particular attention to who sues and is sued, the nature of defamation claims, and plaintiffs’ goals. Part III places the empirical findings from Part II in a
larger context, showing that although defamation law has become a significant tool by which to control the newly commercialized Chinese media, defamation litigation cannot be understood solely in terms of restraints on the press. Cases by ordinary and famous persons reflect the increased willingness of those without Party-state ties to challenge the Party-state. The courts’ growing role in resolving defamation disputes may have the effect of encouraging both greater use of the courts and greater innovation by the courts.

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