Defamation / Reputation, Political Expression
Hoffer and Annen v Germany
Closed Contracts Expression
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This case and the case of Song v Hong involved the same subject matter and were heard at the same time.
The Second Intermediate People’s Court of Beijing Municipality upheld the judgment of the lower court that articles written by Hong, questioning the historic deeds of the five Heroes of Wolf’s Teeth Mountain, defamed the dead Chinese revolutionary warriors. Ge Changsheng and Song Fubao, sons of two of the five warriors, brought the defamation claims against Hong in relation to an article on the news website “Caijing” and the other in the magazine “Yanhuang Chunqiu.” The Court acknowledged Hong’s constitutional right to academic freedom and freedom of speech but said these rights are predicated on the assumption that they don’t encroach upon the legal rights of others, the social public interest or the interests of the state. The Court affirmed that Hongs constitutional right of free speech did not allow him to damage the reputations of the five warriors or the social public interest. It also rejected the Hong’s argument that the lower court had erred in applying the public interest principle as the case only concerned the interest of the warriors’ descendants, vested interests and the Chinese Communist Party’s interest. The Appellate Court reasoned that the Chinese Communist Party was acting in the interests of the state and therefore the public interest, rejecting Hong’s suggestion that the party’s interest was different from the public interest. The Court ordered Hong to stop his infringing activities and apologize publicly to the Plaintiffs.
On September 9, 2013, Hong Zhenkuai published an article titled “There are Many Falsehoods in Elementary School Textbook ‘Five Heroes of Wolf’s Teeth Mountain’ ” on the news website “Caijing”. In the article, he noted that a newspaper report on the arrest by police officers in Guangzhou of a blogger for allegedly denigrating the “Five Heroes of Wolf’s Teeth Mountain” in a blog post. The blogger’s account of the five’s deeds during China’s resistance against Japan in the 1940s contrasted with that given by official historians. Hong said in his article that the blogger had used content published earlier in another online post with the headline “So This is the Truth about the ‘Five Heroes of Wolf’s Teeth Mountain’!” which stated that three of the five warriors were killed at the scene before their bodies were thrown off a cliff and the other two warriors eventually escaped after being captured alive by the Japanese. Hong then commented that the arresting police officers had set a “precedent” by finding a discussion on history to be an arrestable offense.
Hong later published a separate article in the magazine “Yanhuang Chunqiu” titled “Inconsistencies in the Details of ‘Five Heroes of Wolf’s Teeth Mountain’ in which he expressed doubts about where and how three of the five Chinese soldiers had jumped off a cliff and whether they had “given their lives for their country” during the war of resistance. He also queried whether the casualties inflicted on the Japanese army in the battle in Hebei had been exaggerated, while suggesting the five warriors had earlier taken some radishes being grown on ordinary people’s farmland after fighting against their enemies.
After Hong’s two articles were published, Ge Changsheng and Song Fubao, sons of two of the five warriors, filed separate suits in Xicheng District People’s Court of Beijing Municipality against Hong on the grounds that he had defamed their fathers. The Plaintiffs claimed Hong’s second article was defamatory and that the author had published it on the pretext of examining historical details and conducting academic research. They asked the court to order him to stop his actions and publicly apologize.
In its ruling, the Xicheng District People’s Court of Beijing Municipality held that the 1941 Battle of Wolf’s Teeth Mountain could be substantiated by an abundance of facts. According to the court, the “Five Heroes of Wolf’s Teeth Mountain” had won high praise from the entire nation because of their feats and great spirit of self-sacrifice. The lower court affirmed that one’s personality interest is still protected by law following his or her death, citing Article 2 of the Tort Law of the People’s Republic of China and Article 3 of the Interpretation of the Supreme People’s Court on Problems regarding the Determination of Liability for Compensation for Emotional Damages in Civil Torts. It said that since Hong had written about warriors Ge Zhenlin and Song Xueyi in his second article, their respective sons would have a right to take legal action against the author over his acts of infringement. According to the court, Hong’s second article not only ruined the reputations of Ge Zhenlin and Song Xueyi but also damaged the social public interest.
The Xicheng District People’s Court said that although he didn’t use obviously insulting language, Hong’s article had rejected basic facts and tarnished the heroic images of the five.
The Court acknowledged Hong’s constitutional right to academic freedom and freedom of speech but said these rights are predicated on the assumption that they don’t encroach upon the legal rights of others, the social public interest or the interests of the state.
Accordingly, the Xicheng District People’s Court of Beijing Municipality ordered the Defendant to stop his infringing activities immediately and to apologize publicly to the Plaintiffs.
Hong appealed against the trial court’s ruling on the grounds that it had erred both in ascertaining certain facts and in applying the public interest principle when the case only concerned the interest of the warriors’ descendants, vested interests and the Chinese Communist Party’s interest.
In his submissions to the Second Intermediate People’s Court of Beijing Municipality, Hong challenged the basic facts concerning the five warriors’ resistance to their enemies but the appellate court rejected this argument affirming that the five’s deeds had been substantiated by an abundance of historical facts and evidence presented at the hearing. Further, it said that the Chinese Communist Party was acting in the interests of the nation and rejected the Appellant’s suggestions that the party’s interest was different from the public interest.
The Second Intermediate People’s Court of Beijing Municipality upheld the lower court’s verdict.
This is an overview of the Supreme People’s Court which picks cases with significant rulings, reviews them and publishes them as ‘model cases’ from time to time to offer guidance for local courts. It is not a part of the litigation process.
On October 19, 2016, China’s Supreme People’s Court published a piece on its website entitled “People’s Courts Come to the Defense of the ‘Five Heroes of Wolf’s Teeth Mountain’ under the Law and Other Typical Cases Concerning Heroic Figures’ Personality Interest”. The article stated that this pair of cases epitomized attempts made in recent years to denigrate national heroes and to undermine what these figures stood for in society.
The Supreme People’s Court highlighted the complexity of the legal issues involved in this type of tort. It noted that heroes’ individual reputations and honors often related to specific heroic deeds, historical background, social consensus and the mainstream’s core values, and in this way could raise matters of public interest. Accordingly, the Court said, judges must consider these types of cases from a wider perspective and pay full and proper regard to the public interest issue.
The Court noted the increasing complexity of the different interests and legal rights involved, in particular the interplay between freedom of speech, academic freedom and individual rights. It said that while it was necessary to protect individual rights such as reputation which could be infringed in various ways, the justice system should avoid inappropriate interference in academic issues and freedom of speech. Judges, said the Court, must deal with each case on its own facts and carry out the appropriate and necessary balancing exercise between competing interests.
The Supreme People’s Court confirmed that the immediate family of the deceased heroes would have standing in procedural law to sue and the right in substantial law to seek relief in accordance with current law and judicial interpretations. It said that the judges had reviewed the historical circumstances implicated in the cases and that the courage of the five heroes was regarded as part of Chinese collective memory, the national spirit and the socialist value system, and therefore constituted the social public interest. The Supreme People’s Court found that the judges took into consideration Hong’s writing style, the information used, his intention and the damage done in determining liability in the cases.
In conclusion the Supreme People’s Court said that the judges had properly reviewed the relationship between academic freedom, freedom of speech and the protection of rights before striking an appropriate balance between the various interests. It said that the judgments in these cases defended the reputations and honors of the heroic figures and safeguarded the social public interest.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision in this case and its sister case Song v Hong contract expression by ruling that the reputations of deceased revolutionary warriors take precedence over freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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