Defamation Law in China and the United States - Essay Example

CHI SHING LO Bekken COM 320 12-25 Comparative Analysis of Defamation Law in China and the United s China and the United s ofAmerica are two extremely distinct countries. While America is the epitome of democracy and freedom, China with restricted liberties where both individual and media freedom lies in the mercy of the ruling government. Though the room for individual freedom in China has expanded considerably since the 19th and 20th century, some of the strict controls imposed by the former leader Mao Zedong are still adhered to by the Chinese government. In China, the media operate under the “party principle,” which governs the conduct of all social institutions in the country. Under this principle, the media are the voice of the ruling Party and play by its rules and policies. Apart from that, the Party controls all activities of the media that pertains to news production and delivery to the public. Thus, the media only delivers what is authorized by the Party to the public. On the contrary, in America, the media operates freely with minimal interference from the government. Additionally, the media functions as a “watchdog,” which evaluates and monitors the actions and activities of the government. Defamation laws in these two countries clearly bring out the differences and similarities in media activities and regulations in America and China. Defamation in law is the act of making statements about a person, which damages the reputation of the individual in question. When in written format, defamation is referred to as “libel” and “slander” when in spoken form. In order to understand how defamation law works in China, it is essential to explore the structure and function of the legal system in China as it pertains to matters of the media. Thus, the first section of this paper will explore the legal system in China while drawing on any similarities and differences with the United States legal system. The second section will look at the background of defamation law in the United States and Chinese, and finally, the last section will draw on comparison between defamation law in China and the United States. Structure and Function of China’s Legal System Article 34 of the Chinese Constitution acknowledges: Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, procession and demonstration. This provision is similar to what is found in the United States Constitution, and at first, one may think that the Chinese media enjoys the same rights as that in America. However, application of the Chinese Constitution is different from that of the United States constitution. Unlike the Americans, citizens of China enjoy neither economic nor civil rights enjoyed by their American counterparts. This ineffectiveness in the application of the Constitution in China is because of the Chinese philosophy towards the law, which is also typical of many societies where rights are only documented, but not observed in actual practice. According to Wing-hung Lo (1997), Law in a socialist society was held to be the instrument of the state for the elimination of all capitalist residues, for the defense and the development of a socialist economy, and ultimately for the realization of communism. . . Socialist theory, therefore, was positivistic, seeing law as being laid down by the state and geared to serve the interests of the state until communism saw the state transcended (p. 471). Evidently, the laws in China serve the interests of the government rather than limit or control its actions as in the United States system. Thus, the constitution in China is merely a statement of policy, which changes as the law changes. As such, the Constitution is not the supreme law of the country like in the United States and other Western countries. Regarding the court system, China does not have branches of government, which ensures that the judiciary remains independent in its functions. Instead, judges and members of the court system are selected by the congresses at the local and provincial level while the National People’s Congress (NPC) appoints top court officials. Nevertheless, the Chinese Communist Party (CCP) controls all activities that entail selection and appointment of judges among other court officials. Thus, the judges have no security of tenure, but have an obligation to serve the wishes of the entity that selects them to their positions. For example, Supreme People’s Court (SPC) judges appointed by the central government are beholden to the central government. Another way that the Chinese government exercises control over decisions of the court judges is through Adjudication Committee, which is the highest decision-making authority in every court. Thus, the Adjudication Committee can influence the decision of the judge to provide a specific verdict on an individual case (Clarke, 1996). Moreover, the judges appointed to the courts lack legal training as most of them are former military officials, which makes it easy for the government to control their decisions. The making of laws and regulations in the United States also reveal distinction between the legal systems as it pertains to media issues. Due to a clear separation of powers in the United States, the legislative branch is tasked with creating statutory laws such as the criminal laws while administrative regulations are established by the administrative branch through its agencies. As such, there is no confusion concerning the establishment and application of laws and regulations, as well as the distinction between criminal laws and forms of law. The system in China, however, is a contrast of the United States system. Due to lack of distinct separation of powers, application of the law is unclear, complex, and unpredictable. While the NPC is charged with creating statutory laws, the State Council establishes administrative regulations. According to Keller (2003), there is usually a blurry distinction between administrative and criminal law in China because of the lack of clear separation of powers. He further notes, “The lack of a clear distinction between criminal and administrative law also stems from the fragmentation of law-making powers in China” (p.105). This blurriness can be explained using the law that prohibits the media from divulging state secrets. The law is addressed by both the State Council’s administrative regulations and the NPC’s criminal laws thereby creating a challenge for members of the media regarding what is legal and what is not. As a result, this leaves the media in a state of confusion to sort out for themselves the application of these laws. Concerning this, Keller (2003) suggests that the problem becomes even worse when there are additional regulations to be considered at both local and provincial levels of the government. Background of Defamation Law in China Defamation is a criminal offense under Article 246 of China’s Criminal Law. According to the law, the penalty for defamation includes criminal detention, imprisonment of 3 years maximum, public surveillance or deprivation of an individual’s political rights. It is also essential to understand that according to the publication regulations in China, the government reserves the right to control all publishing activities including amount, distribution, structure and coordination. As a result, no journalist or media house is allowed to publish their own opinion without the government’s permission. As if the restriction to freedom of expression is not enough, the Chinese government limit reporting on social and political issues. For instance, websites are only allowed to publish government-authorized news, more important social and political topics attract more strict regulations, lives of leaders is off-limits in publications, and all China media houses must have government managers (Tao et al., 2013). Under civil defamation, article 101 states: Citizens and legal persons enjoy the right of reputation. The human dignity of citizens is protected by law. It is prohibited to harm the reputation of a citizen or legal person by such means as insult or libel (Tao et al., 2013). While Article 102 states: Citizens and legal persons enjoy the right to honor. It is prohibited to illegally strip a citizen or legal person of his or its honor (Tao et al., 2013). These two clauses provide the general principle for interpretation of defamation law in China. Additionally, the author of publisher can be held liable if the article contains true information, but damages the reputation or insults another person. This means that the most important interpretation of the defamation law in China is that the author is held liable so long as the statements lower the society’s esteem for the plaintiff (Liebman, 2006). As a result, truth cannot be used for defense in a defamation case unlike in the western countries such as the United States. Notably, since the enactment of the Tort Liability Law in 2010, defamation is formally recognized as a tort in People’s Republic of China (Liebman, 2006). This law provides for the right to privacy, honor, and reputation, which fall under civil interests and rights. Remedy for harm to the character of a person involves restoration of reputation, termination of the infringement act, an apology and compensation. Defamation Law in the United States Defamation according to the United States law is “the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image” (Larson, 2003, p.3) The federal defamation law closely relates to the First Amendment making libel and slander not plaintiff-friendly as in the case China. As such, opinion in the United States is not a slander, and anybody who sues a person or media house for libel or slander must have a strong case in order to win. Evidently, not all false statements or fact that harms the reputation of an individual or entity are considered defamation under the Constitutional Free Speech provisions. Furthermore, section 230 of the Communications Decency Act addresses online defamation. It clears internet service providers for being liable for defamation is a person uses their service to commit an offense related to defamation. Moreover, in the case of defamation involving “public figures,” the standard for actual malice must be proven (Liebman, 2006). One influential case in American that established a precedent for “the truth” as a defense against defamation involved John Peter Zenger in 1974. Another important case to note was the New York Times Co. v. Sullivan in 1964, which changed the direction of libel law (New York Times Co. v. Sullivan, 1964). The case established that in order to win a libel suit, public officials must prove that either the information published is not only true, but also published with reckless disregard. Nevertheless, definition of slander or libel differs across states, as well as under the federal law making it difficult to have a clear definition of the libel. However, criminal libel exists only in books in as it is rarely prosecuted in most states though each state has its set of libel and slander laws. Apart from the truth, other defenses to libel include a fair comment of criticism expressed as one’s opinions. Finally, just like in China, defamation law in the United States falls under tort law. Comparison of Defamation Law in United States and China Defamation law was introduced in 1987 in China as one of the country’s first civil law, and it has developed ever since. Similarly, in the United States, defamation law commonly referred to as libel falls under civil law. However, there are barely libel cases in the United States as compared to China where defamation cases are rampant and keep on increasing by the year because of increasing stubbornness of the media and the public to fight for their rights and freedom of speech and expression. The increasing awareness on human rights issues has been triggered by societal changes such as globalization and increasing focus on human rights around the world (Chen & Ang, 2008). In addition, the news media have become more aggressive, thereby attracting the attention of both the local and central government. For instance, the central government exploits the services of news media to expose corruption and incompetence among government officials at the low-level offices. The Yale University studies showed a dramatic increase in defamation cases against the media between 1999 and 2002, as well as compensation for damages (Chen & Ang, 2008). A similar study carried out by Columbia University between 1995 and 2004 also recorded an increase in civil libel cases against the media (Chen & Ang, 2008). A significant difference between defamation law in China and America is that in the China, reputation is both a personal and property right. Consequently, third parties representing deceased individuals are allowed to sue for defamation on their behalf. In America, defamation law is only a personal right thus after a person is deceased, third parties cannot sue for libel on his behalf. Another difference is that a falsehood is enough for a successful defamation suit in China. More so, in some cases, humiliation enough is liable for defamation even if the comments made or published are true (Chen & Ang, 2008). An example of successful criminal charge on media humiliation was the 2004 case of Zhang Ruquan. The journalist wrote a commemorative essay on Mao Zedong and posted it online, as well as distributed printed leaflets of the essay. Ruquan’s essay criticized Chinese leaders for neglecting workers and leaving them with no opportunity for education or health. As a result, Zhang and Zhang Zhengyao, the leafletter were accused and detained for defaming the former Chinese leaders. The most notable part of Chinese government involvement in media issues is the use of defamation law as a means to punish the media, which has increased with increasing awareness of legal rights. The Chinese government has even become harsher on content published on the Internet. For example, in a ruling handed down in 2013, the high court resolved that people who post rumors on the internet that are reposted or merely viewed by other people at least 500 times are liable for defamation and prosecution with a sentence of at least 3 years in prison. In the defense of the ruling the court spokesperson Sun Jungong noted, “People have been hurt and reaction in society has been strong, demanding with one voice serious punishment by the law for criminal activities like using the internet to spread rumors and defame people…No country would consider the slander of other people as freedom of speech” (Toor, 2013, p.2). In America, it is the media are like the watchdogs, which keeps the government in check by exposing any unscrupulous activities by officials, as well as positive and negative happenings in the government offices. Moreover, the United States does not have strict laws that govern defamation concerning online contents. Though there have been some prosecutions in America regarding online postings, the cases are not as many as in China. China lacks a clear definition of opinion used by the media to defend themselves against the defamation suit (Cao, 2004). Thus, the media are left with no choice, but to limit publishing their opinion to avoid chances of having defamation litigation against them. As a result, they are unable to express their opinions on key issues affecting the country. In the United States, truth is a defense against defamation law and journalists are allowed to freely express their opinions on issues affecting the country. Therefore, defamation laws in China and the United States both serve to protect reputation of individuals, but they are applied differently in the two countries. Furthermore, China’s application of defamation law differs from America’s in the lack of provision for standard malice in the application of defamation law in China. This is a reprieve for the media in legal defamation cases since malice implies intent of the defendant. Thus, it takes more to prove in court than whether the defendant’s reporting is erroneous. In terms of defamation law, a private and public figure in China are given equal recognition to bring a legal litigation for defamation. In the United States, however, public officials have a higher stake of arguing for litigation than private figures. The reason for this is that public officials In America are given more audience that private individuals as compared to China. Another difference between media in the two countries is that Chinese content is highly regulated by the government before it reaches the public (Cao, 2004). The government controls production and distribution of published materials in the country, and thus, controls most of the publications. In the United States, freedom of expression allows journalists and publication houses to run content without the approval of the government. Regarding international journalism, China has fewer restrictions and control over foreign news organizations and journalists. As a result, foreign media houses and journalists face less risk of defamation charges. However, the government controls the distribution of foreign content within its borders in order to limit viewership or readership of news from international companies. Furthermore, foreign journalists in the United States have the freedom to publish content with minimal control from the government, and thus, they rarely face litigation of defamation. After analysis of the defamation law in China and its application, it is undeniable that China is in dire need of institutional reforms to promote freedom of the press. As such, criminal defamation should be done away with as it pose a threat to the right of journalists to report freely and criticize public officials. Criticism of public officials is critical in every country as it ensures checks and balances and promotes performance among government officials. Additionally, China needs to reform civil defamation law to protect journalists to freely air their opinions rather than protect public officials. As such, truth should be made an absolute defense in cases regarding defamation. Media as a mirror of the society needs freedom to publish content expressing their opinions and criticizing politicians. In this way, the media can expose ills in the country and trigger positive changes for a better society. China and the United States have similar laws relating to defamation or damage to the reputation of individuals. However, application of these laws is different creating a distinct environment for journalists in the two countries. In China, the media serve the interests of the government, which controls both production and distribution of media content. In addition, journalists are not allowed to publish their opinions without authorization from the government. This contradicts United States where media have freedom to publish content without prior approval. Moreover, in application of defamation law, China does not recognize the truth as a defense, but so long as the publication humiliates a person, the defendant is liable for defamation. However, in the United States, truth serves as an absolute defense against defamation charges. Hence, China needs to loosen up on its criminal defamation and strict control of the media in order to promote freedom of expression by the journalists.   References Cao, D. (2004). Chinese Law: A Language Perspective. Hants, England: Ashgate Publishing. Chen, X., & Ang, P. (2008). Defamation litigation and the press in China. International Journal of Communications Law and Policy, 53-91. Clarke, D. C. (1996). Power and politics in the Chinese court system: The  enforcement of civil judgments. Columbia Journal of Asian Law, 1-92. Keller, P. (2003). Privilege and punishment:  Press governance in China. Yeshiva University Cardozo Arts & Entertainment Journal, 87-138. Larson, A. (2003, September). Defamation, Libel and Slander Law. Expert Law. Liebman, B. L. (2006). Innovation through intimidation: An empirical account of defamation litigation in China. Harvard International Law Journal, 33-177. Lo, W.-h. (1997). Socialist legal theory in Deng Xiaoping’s China. . Columbia Journal of Asian Law, 469-486. New York Times Co. v. Sullivan, (1964), 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (Supreme Court 1964). Tao, L., Siu, W.-W., Zou, J., & Tao, L. (2013, October 25). Chinese Defamation Law. Retrieved from Pillsbury: http://www.pillsburylaw.com/publications/chinese-defamation-law-china-practice-pillsbury Toor, A. (2013, September 9). In China, 500 retweets could mean three years in prison: Tough anti-defamation laws aim to stem the spread of online rumors. The Verge. Read More