Defamation / Reputation
Tešić v. Serbia
Closed Contracts Expression
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The Beijing No. 1 Intermediate People’s Court upheld a ruling of the Haidian District People’s Court that the Defendant/Appellant Zou Hengfu refrain from infringement and make a public apology to Peking University in respect of libelous statements about university professors and deans posted by him on his Weibo account. In response to the postings, Peking University brought a civil action against Zou for infringement of its right of reputation. The Court’s decision denied Zou’s argument that the exercise of the right of public opinion supervision exempted him from restrictions on insults and libel. The Court found that Peking University was a civilian subject, just like Zou, which enabled it to protect its right of reputation. The Court reasoned that the reputation of university professors was akin to that of the University and because Zou had failed to submit any evidence in support of his statements which related to the University, his act was unlawful and was a direct cause of damage to Peking University’s reputation.
At 9:19am on August 21, 2012, Zou Hengfu posted a message on his Weibo account, alleging that the deans of Peking University had sex with waitresses in Meng Taoyuan Restaurant, a restaurant near the university, and that most of the deans and professors of Peking University were obscene. At 21:22pm on August 21, 2012, Zou Hengfu posted another message on his Weibo account alleging that Peking University’s deans and professors often had dinner at the Meng Taoyuan Restaurant to be able to have sex with those waitresses, that it was common for deans and professors to indulge in disgusting orgies of eating and drinking and visiting prostitutes, and that many foreign scholars regarded those activities as a “must” during their visits.
On September, 2012, Peking University brought a civil action in the Haidian District People’s Court against Zou Hengfu for violation of its right of reputation under Article 101 of the General Principles of the Civil Law, which states that “[C]itizens and legal persons shall enjoy the right of reputation. The personality of citizens shall be protected by law, and the use of insults, libel or other means to damage the reputation of citizens or legal persons shall be prohibited.” Peking University argued that Zou’s conduct was “insulting and libelous”, which damaged Peking University’s image in society.
Zou Hengfu, on the other hand, contended that Peking University could not be a plaintiff and did not have the right of reputation which is a privacy right in civil law. Additionally, Zou said he was exercising his right to supervision (or, the defense of public opinion supervision1) under Article 41 of the Constitution which states that “citizens of the PRC have the right to criticize and make suggestions regarding any state organ or officials” and “have the right to make complaints against, impeach, or expose any state organ or officials for violation of the law or dereliction of duty” and that the exercise of this right did not harm Peking University’s public reputation.
The Haidian District People’s Court held that Zou Hengfu did not fulfill the duty of care in his expression, and his insults and libel violated the right of reputation of a legal person under Article 101 of the General Principles of the Civil Law. It held that Zou Hengfu should stop infringement and make a public apology to eliminate adverse effect and rehabilitate the reputation of Peking University in accordance with Article 120 of the General Principles of the Civil Law.
Zou Hengfu appealed the decision to the Beijing No. 1 Intermediate People’s Court.
For an excellent discussion of public opinion supervision defenses in China see: Chin, Yik Chan, Privilege and Public Opinion Supervision Defences in China’s Right to Reputation Litigation (November 16, 2014). Media & Arts Law Review, September 2014 Issue. Available at SSRN: https://ssrn.com/abstract=2525102
“In China, the 1982 Constitution includes a provision, art 41, which guarantees the right to participate in the administration of state affairs.62 Article 41 states that ‘citizens of the PRC have the right to criticize and make suggestions regarding any state organ or officials’. Furthermore, they ‘have the right to make complaints against, impeach, or expose any state organ or officials for violation of the law or dereliction of duty’. The only circumstance in which such rights may not apply according to the Constitution is where there has been ‘fabrication or distortion of the facts for the purposes of libel or false incrimination’ — that is, ‘the defendant must have published the defamatory words which damaged the plaintiff’s reputation, knowing that the words were false or reckless in determining their truth or falsity’.63 The right enshrined by art 41 has been also guaranteed in China’s Administrative Supervision Law. 64 The SPC incorporated art 41 into its Explanations 1998, which states that where a citizen impeaches or accuses another person of acting illegally or committing a wrongdoing, before the relevant authority in accordance with the law, the court will not accept a claim for infringement of reputation except where the citizen has purposively caused insult or defamed another person in the name of impeachment.” (p. 288-289) ↩
The Court delivered a per curiam opinion for the Beijing No. 1 Intermediate People’s Court.
The first issue was whether Peking University had the standing to be plaintiff and whether it had the right of reputation and a direct interest in this case. The second issue was whether Zou’s messages in Weibo constituted conduct which infringed the right of reputation.
Zou Hengfu contended that the two messages were not aimed at Peking University and, therefore, Peking University did not have standing, i.e., was not a qualified plaintiff. He further disagreed with the Haidian District People’s Court’s determination that Peking University as an institutional legal person had the right of reputation. Zou Hengfu asserted that his conduct did not infringe the right of reputation because he did not act in bad faith in infringing Peking University’s reputation, what he posted was true and there was insufficient evidence to support the claim that Peking University’s public image had been badly affected. Zou Hengfu specifically noted that he was exercising his right to supervision which was protected by the Constitution. Peking University argued that it was a legal person entitled to the right of reputation under relevant provisions in civil law and interpretations of the Supreme People’s Court. Zou Hengfu’s insults and libel had been forwarded and commented on by numerous netizens which seriously damaged the public image of Peking University.
The Court first found that paragraph 2 of Article 50 and Article 101 of the General Principles of the Civil Law and paragraph 1 and 2 of Article 31 of the Education Law of the People’s Republic of China gave Peking University the right of reputation. Additionally, in this case Zou Hengfu and Peking University were equal civil subjects within Article 2 of the General Principles of the Civil Law, which enabled Peking University to protect its right of reputation without restrictions. The Court stated that the reputation of teachers had a close relationship to the reputation of a university; Zou Hengfu had failed to submit relevant evidence to support his argument in the messages; and what he posted directly related to Peking University. Accordingly, the Court found that Zou Hengfu’s behavior infringed Peking University’s right of reputation in accordance with Article 7 of Interpretation of the Supreme People’s Court on Several Issues about the Trial of Cases Concerning the Right of Reputation because he had subjective bad faith and his unlawful act directly lead to the damage to Peking University’s reputation. According to the Court, both the right of supervision and the right of reputation are protected by the Constitution and law, but, insults and libel were beyond the scope of the right of supervision.
Consequently, the Court upheld the Haidian District People’s Court’s ruling.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision denied Zou Hengfu’s argument that the exercise of the right of supervision exempted him from restrictions on insults and libel. This indicates that freedom of expression is not unlimited and has to be balanced with other rights including the right to reputation.
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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