The Chinese Reputation: A Community Approach on Defamation Litigation in China
DescriptionWith the development of commercial media and the Internet, China has recently witnessed arising number of defamation litigation, particularly libel suits against the media. Despite the fact that thistype of sociological litigation speaks volumes on a society’s understanding on reputation, little effort hasbeen made to examine such litigation empirically.Defamation laws are designed to effectuate a society’s interest in preventing and redressingattacks upon reputation (Post 1986). Different from character that is what a person really is , reputation iswhat he seems to be (Veeder 1904). As the individual’s projection of self in a society, reputation’s verynature is social: it indicates a relation between persons in a given society (D. Anderson 1984; Bellah 1986;Skolnick 1986). As an impairment of relational interest, defamation tort needs to articulate an individual’sreputation within the context of his/her community. It is the social nature of reputation that imposesdifficulty not only in determining how much damage there is to make up for, but also in the faircompensation for such damage. The court has to face the question how to put a price on the priceless.The difficulty of compensating an individual’s reputation is also rooted in the fact that defamationlitigation is more than reputation. As demonstrated in the New York Times vs. Sullivan, freedom of speechis at stake in this type of litigation. In modern democracies, the rhetorical label “chilling effect” has beenused by both legal scholars and journalists to address the impact of court decisions on the media (Barendt,Lustgarten, Norrie & Stephenson 1997, Bezanson, Cranberg, & Soloski 1987, Dent & Kenyon 2004,Franklin 1986, Schauer 1978, Tushnet 2014). How to strike a balance between individuals’ reputationsand the constitutional rights of freedom of speech usually define the role of the courts and the media. Thesituation only becomes more complicated in authoritarian and transitional countries, since the theirregimes tend to repress freedom of speech and control the media through defamation litigation (Chen2004, Goodroad 1998, Hao & Zhang 1996, Liebman 2006, Stockmann 2013, Stockmann & Gallagher2011, Xu 2009, Zahralddin-Aravena 1998). In this sense, media-court relations have set up the parametersof the worthiness of an individual’s reputation in a given society.Unfortunately, most existing empirical studies on defamation merely report the amount ofcompensation of reputation. Few studies explore what factors shape the courts’ decisions on whether andhow to compensate individual reputation. How does the court define the boundary of a community towhich an individual’s reputation makes sense? To what extent do such boundaries of community affectthe remedies for an individual or an organizational reputation? Do courts’ decision patterns vary by time,issue, region, or level of courts? What do these data say to the nature of the social relations in a givensociety?To answer these questions, this study aims to examine courts’ documentation of adjudicationdecisions (DAD, 裁判文書) on media-related defamation. In recent years, many courts across China havebegun to make their DADs available to the public, along with legal databases with keyword searchfunctionality. A typical adjudication decision lists the litigation parties, any representatives of the parties,the institutions with which the individual litigants are affiliated, the disputes at issue, the parties’arguments, the court’s position on the disputes, and the case outcome. Thus, the DADs will revealvaluable information on the inner logic of court decisions. By analyzing the court documents of the firstinstance of each case we aim to collect from 1985 to 2013 in China, we will explore the definition ofreputation and of community, and investigate what factors affect the courts’ decisions on compensation ofreputation. Our study will offer insights on the nuanced understanding on the nature of reputation and itsrelation with community in an authoritarian regime. Even though our study focuses on China, it willprovide a solid reference point for comparative studies on defamation in other countries.
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