Challenges and Distinctiveness of Media Tort in China:

An Empirical Study of 800 Cases

Zhu Li and Yang Huizhen

15 June 2012

I. Data Sources and Methodology

i. 800 Media Tort Cases (1985~2009)

Beida Fayi (lawyee.net)

36%

Zhongguo Fayuan Wang (China Court Website)

20%

Books, newspapers, magazines and court bulletins

19%

Individuals (e.g. lawyers, litigant par-

ties, etc.)5%

Other (e.g. internet search)

21%

i. 800 Media Tort Cases (1985~2009)

Infringement Types Number Percentage

Right to reputation 758 95%

Right to privacy 28 4%

Right to portraiture 97 12%

42%

58%

With complete lit-igation docu-mentsWithout complete litigation docu-ments

ii. 100 Non-media Defamation Cases

100 Non-media Defamation Cases

•Randomly selected from Beida Fayi

(www.lawyee.net);

•Complete legal documents

100 Media Defamation Cases

•Randomly selected 600 media

defamation cases from the 800 case

pool

•100 media defamation cases via

systematic sampling

VS.

iii. Survey on Media Professionals (N=96)

Newspaper42%

Magazine29%

Radio7%

TV21%

Other1%

Media Type

iii. Survey on Media Professionals (N=96)

Positions Percentage

Reporter 28%

Editor 24%

Department Director 12%

Senior Executive 35%

Other 1%

Length of Working in Media

1 to 3 years

3 to 5 years

More than 5 years

II. Challenges

in Chinese Media Tort Litigation

Challenging Issue?

Graph 1: Variation of Defamation Cases according to Zhongguo Falv Nianjian (China Law

Yearbook)

Graph 2: Variation of 800 Media Tort Cases

Challenging Issue?

Have you ever been sued for infringement of reputation, privacy or

portraiture in work?

Percentage

Yes, I have. 8%

No, but my colleagues have

experienced.

51%

Neither I nor my colleagues

have such kind of experience.

38%

Other 3%

Has your media organization ever been involved in

reputation, privacy, or portraiture infringement lawsuits?

Percentage

Yes, it has. 50%

No. it has not. 31%

I have no idea. 18%

Other 1%

Main Findings

More co-defendants sued together

Higher monetary compensation

More jurisdiction at non-defendant domiciles

Longer time to close a case

i. Longer time to close a case

Average Duration

12 months

Longest Time to Close a

Case

12 years and 3 months

(147 months)

Average Duration Longest Duration0

10

20

30

40

50

60

8

1911

59

Comparison of Time Duration between 100 Ordinary Defamation Cases and 100

Media Defamation Cases

Non-Media Defamation

Media Defamation

ii. Higher monetary compensation

Average Compensation

70,964 yuan (U.S. $11,228)

Average Compensation

5 million yuan (U.S. $791,139)

0

100,000

200,000

300,000

400,000

500,000

600,000

700,000

6,84744,46159,200

658,920

Comparison of Monetary Compensation be-tween 100 Ordinary Defamation Cases and 100

Media Defamation

Non-Media Defamation

Media Defamation

iii. More jurisdiction at non-defendant domiciles

Jurisdiction Percentage

Plaintiff only 32%

Defendant only 17%

Both parties 40%

Other 12%

It would drain on manpower and material resources of media organizations and

professionals.

It would reduce the winning chance of media.

Little effect.

I don’t know.

Other

44%

30%

18%

14%

3%

Impact on Media

Non-media Defamation Media Defamation0%

20%

40%

60%

80%

100%

86%

35%

12%

Comparison of Jurisdiction between 100 Ordinary Defamation Cases and 100 Media Defamation Cases

Home jurisdiction of plaintiff only Home jurisdiction of defendant onlyHome jurisdiction of both parties Other

iii. More jurisdiction at non-defendant domiciles

iiii. More co-defendants sued together

48%

8%

6%3%

21%

6%

4%

1% 2% 1%

Media

Author

News source

Other

Media and author

Media and news source

Media and other types

Author and news source

News source and other types

Author and other types

Media, author and news source

Media, author and other types

Media, news source and other types

iiii. More co-defendants sued together

• In some situations, the number of media co-respondents can surpass 10.

– Tang Jili vs. Rui Yanhong, Youth Times, Chengdu

Business Daily, etc. (Defendant number:10)

– Song Guanjun case (Defendant number: 100)

III. Distinctiveness

of Media Tort in China

Main Findings

Distinctiveness in remedies

Distinctiveness in infringement behaviors

Distinctiveness in defenses

Distinctiveness in defendants

i. Distinctiveness in defendants

Media

Authors

News sources

Others

0 100 200 300 400 500 600 700

650

261

112

82

Defendant Type

Number

(Note: Cases with multiple defendants are included and calculated. )

ii. Distinctiveness in infringement behaviors

15

1318

5

9

Infringement Behavior in Non-media Case

By letter

By leaflet and poster

By oral expression

By behaviors and ac-tions

Other

ii. Distinctiveness in infringement behaviors

Infringement by

republication

27%

27%

41%

5%

Republishing Media’s Liability

Co-defendants with lighter liability than original media

Co-defendants with same liability as orig-inal media

Assume liability as defendants alone

Other

ii. Distinctiveness in infringement behaviors

Infringement by

continuous report

Supported by courts36%

No supported by courts27%

Other36%

Continuous Report Media’s Liability

iii. Distinctiveness in defenses

Cases using the

defense

Supporting

percentage

Fair Comment 85 40%

Qualified Privilege 56 46%

Newsworthiness 29 24%

iv. Distinctiveness in remedies

Liability lightened

Liability not lightened

Other0%

10%

20%

30%

40%

50%

60%

51%

31%

18%

If media’s continuous reports have corrected or clarified

preceding false statements, what type of liability do you

think the media should undertake?

Correction &

Reply

iv. Distinctiveness in remedies

Remedies Percentage

Monetary 82%

Non-monetary 16%

Unknown 2%

0%

10%

20%

30%

40%

50%

60%

19%

50%

24%

7%

Types of Monetary Compensation

iv. Distinctiveness in remedies

Non-M

edia

Def

amat

ion

Med

ia D

efam

atio

n0%

20%40%60%80%

100%120%

36% 18%Other

Non-monetary remedies

Monetary compensation for both economic loss and mental suffering

Monetary compensation for mental suffering only

Monetary compensation for economic loss only

Comparison of Remedies between 100 Ordinary Defamation

Cases and 100 Media Defamation Cases

IV. Conclusion

i. Conclusions

• Challenges:– Longer time to close a case – Higher monetary compensation– More jurisdiction at non-defendant domiciles– More co-defendants sued together

• Distinctiveness:– Distinctiveness in defendants– Distinctiveness in infringement behaviors– Distinctiveness in defenses– Distinctiveness in remedies

ii. Implication

• National legislators to take more progressive steps to clarify current judicial confusions and strike a better balance between personality rights protection and freedom of expression in laws or judicial interpretative documents.

iii. Limitations

• This is one empirical research in China.

• All litigation materials were collected before

2010.

• Survey embodies self-report answers.

Thank you!