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An Empirical Account of Defamation Litigation in China Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2006 Innovation through Intimidation: An Empirical Account of Defamation Litigation in China Benjamin L. Liebman Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Torts Commons Recommended Citation Benjamin L. Liebman, Innovation through Intimidation: An Empirical Account of Defamation Litigation in China, 47 HARV. INT'L L. J. 33 (2006). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/554 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. VOLUME 47, NUMBER 1, WINTER 2006 Innovation Through Intimidation: An Empirical Account of Defamation Litigation in China Benjamin L. Liebman* 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 2 in a local court on which, not coincidentally, his son sat as a judge. * Associate Professor of Law and Director, Center for Chinese Legal Studies, Columbia Law School. Many thanks for helpful comments to Kenneth Abraham, William Alford, Chen Xi, Ashley Esarey, Philip Hamburger, Hilary Josephs, Perry Keller, Thomas Lee, Neysun Mahboubi, Henry Monaghan, Gerald Neuman, Randle Peerenboom, Katharina Pistor, Alex Raskolnikov, Frank Upham, Richard Winfield, and to participants in the Columbia Law School Faculty Workshop, Columbia University Weatherhead East Asian Institute Research Lunch, the Conference in Honor of Stanley Lubman at Co- lumbia Law School, and seminars at Northwest China University of Law and Politics, the Institute of Law of the Chinese Academy of Social Sciences, and China University of Law and Politics Publishing House. Thanks also to Chen Rong, Cheng Xiaofeng, Chen Xugang, Orianne Dutka, Eric Fronman, Terry Liu, Brian Murphy, Peng Lingyan, Yang Fuhao, Yu Bate, Yu Xiaohong, Zhang Lan, Zhang Yi, and Zhou Qianwei for outstanding research and editorial assistance. I am also grateful to Jonathan Shih, Christina Von der Ahe, and the staff of the HarvardInternational Law Journalfor their tireless work on this Article. 1. During the period covered by this Article, the exchange rate between the Chinese renminbi, or yuan, and the U.S. dollar was US$1 = 8.3 yuan. 2. See infra Appendix B, Case 180; Philip Pan, In China, Turning the Law into the People's Protector, WASH. POST, Dec. 28, 2004, at Al. Zhang's request that the authors cease publication was unnecessary: In March 2004, while the case was underway, the Communist Party's Central Propaganda Department banned the book. The Propaganda Department also banned media coverage of the case, although reports and discussion continued on the Internet, and a few media outlets covered the court hearings. As of August 2005, the first-instance court had yet to decide the case. See infra Appendix B, Case 180. In a statement submitted to the intermediate court on July 11, 2005, the defendants' lawyer, Pu Zhiqiang, criticized the court for violating procedural requirements in its handling of the case, argued that the delay in resolving the case demonstrated that external forces were influencing the court's handling of the dispute, and ques- tioned the pressure being placed on defendants by the court to settle the case. Id.; see also Bentai Dujia Huode "Zhongguo Nongmin Diaocha" An Bianhu Liishi Pu Zhiqiang Zhi Shenpanzhang Yi Xin [Exclusive: Letter to the ChiefJudgefrom Pu Zhiqiang, Lawyer for the Defendants in the "Investigation into China's Peasants" Case], RA- DOioFREE ASIA, July 11, 2005, http://www.rfa.org/mandarin/shenrubaodao/2005/07/1 1/ puzhiqiang/. HarvardInternational LawJournal / Vol. 47 In 2000, Song Dianwen, a peasant, sued the Heilongiiang 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 3 on appeal, for 3,500 yuan (approximately U.S.$430) in emotional damages. The cases exemplify two different tracks of defamation litigation in pre- sent-day China. Track-one cases, like Zhang's, are brought by local public offi- cials, 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, de- spite 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. Empiri- cal evidence from 223 defamation cases studied in this Article indicates that 4 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 an- 5 other lever of state control over the increasingly autonomous Chinese media. Track-one developments in China correspond to experiences in other con- temporary single-party states,6 where libel laws often serve to restrict individual rights, and to the use of defamation law to preserve state authority in West- ern 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 3. The court found that the report was false. See infra Appendix B, Case 68. 4. The empirical evidence is set out in full in the Appendices to this Article. Appendix A, infra, de- tails the parties and other relevant information for each case analyzed for this Article. Appendix B, infra, includes citations to the sources relied on for each case. 5. See, e.g., Committee to Protect Journalists, China (including Hong Kong), in ATTACKS ON THE PRESS IN 2004 101, 103 (Bill Sweeney ed., Committee to Protect Journalists 2005) (noting the use of libel suits in China "to bring [journalists] to heel"); H. L. Fu & Richard Cullen, Defamation Law in the People's Repub- lic of China, 11 TRANSNAT'L LAW. 1, 20 (1998) (arguing that "[the use of the civil law of defamation by citizens is encouraged by the authorities to help tighten media control, thus supplementing the existing criminal, administrative, bureaucratic and political control systems"); cf.Freedom House, China, in FREEDOM OF THE PRESS 2005: A GLOBAL SURVEY OF MEDIA INDEPENDENCE 57, 57 (2005) (noting the tight control of the Chinese media by Communist Party authorities). 6. See infra note 384. 2006 / Innovation Through Intimidation use of defamation litigation by track-one plaintiffs for repressive purposes is encouraging both ordinary persons to use such cases to protect their own inter- ests 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 account- ability. This story is not as simple as commonly believed, but, better under- stood, it adds significant insight into the nature of legal innovation and in- stitutional development both in China and in other developing legal systems. In prior work I have shown how close Party-state ties give the media ex- tensive power both to influence 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.7 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 sub- ject to extensive external influence, particularly from the local Party-state.8 The media continue to exert influence 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 repre- sent 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 officials and state entities have turned to litigation to combat media oversight: They possess few other tools to challenge media verdicts.
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