The Chinese Rules for Media Reputation Infringement that Foreign Medias Should Pay Attention to
Critical news reports often lead to disputes over reputation rights. The courts face major challenges when balancing the media oversight rights and the reputation rights of the reporters, which includes how can the news media determine the burden of proof of the truth of the reported facts, how to define the tolerance for criticism and the appropriateness of criticism when the interviewees and information sources cannot appear in court.
In a case that a famous Chinese magazine successfully defended by Beijing Wis & Weals Law Firm against a real estate company for a defamation dispute arising from critical reports a prestigious Chinese internet company, the People's Court of Tianhe District, Guangzhou City, Guangdong Province made a groundbreaking judgment in response to the above issues. Based on this typical case, we make a detailed interpretation of issues such as the authenticity judgment scale of media reports and the right of the media to freedom of speech.
I. Significance of the typical case
Supervision by public opinions has long been a major and sensitive issue which not only arouses news and social concerns, but also triggers legal and political resonance. The typical case happened at a time when Chinese media supervision was relatively active and critical reports were relatively prosperous, which brought the media to the center of wide concerns and controversies and even make them hot spots in civil proceedings.
The plaintiff and the trial court in the typical case are both located in Guangzhou. As we all know, media in Guangzhou like South Weekend used to be the symbol of critical reporting in China, and Guangzhou's regional culture also tends to be tolerant of critical reports.
The significance of the judgment on the typical case lies in the following aspects:
1. Upheld the right of free speech of citizens and legal persons (unfortunately, news organizations are treated as ordinary legal persons), and defined the criteria for the proper exercise of the right to free speech: whether the content is seriously untrue, whether the comments are fair, whether the infringement occurs, etc.
2. Defined the criteria for judging whether the content of news reports is seriously untrue: whether there are information sources that can be reasonably believed to be facts. If these sources are considered to exist in the judgment of an average person, the news organization can be granted the immunity and the differences between the facts reported and the objective facts are allowable and will not be deemed to be seriously untrue.
3. Defined the criteria for impartiality of news comments: whether the object is related to social public interests, whether the facts on which the comments are based exist, and whether there is malice.
As far as the typical case is concerned, the plaintiff is a large local enterprise, and the defendant is a periodical in Beijing. The judgment was probably the best judgment that could be issued against the then background. It is believed that the judgment has reflected the judicial conscience to the greatest extent.
Fifteen years later, China’s media supervision environment has changed a lot, and such judgments seem increasingly rare.
II. The yardstick for judging the authenticity of media reports
1. The criteria for judging the authenticity of media reports
News media is like legal professionals on the professional level in that they all should work "on factual basis".
For a responsible media, the position and viewpoints embodied in its articles should undoubtedly be able to be made public for comments and testing, and its articles must have enough justice to persuade itself and others. This is the soul throughout the whole disputed article and the whole case, and a basic condition for distinguishing right from wrong and for determining the trial result of a case. Without this condition, nothing may be proceeded with.
Throughout the whole process of such cases, the media should always adhere to their own position and collect evidence and elaborate opinions around this position. They should not be limited to sporadic incidents complained of by the plaintiff, making their vision constrained by these specific facts, nor shall they arbitrarily change and adjust their positions to any changes in the development of the case. The media should not deviate from its core position by using small techniques to win a lawsuit. From a certain point of view, this is not only an indispensable spirit of the media in legal proceedings, but also the best technique in responding to a lawsuit.
We hold that news media organizations are not professional judicial, law enforcement or legal service organizations and should only be required to maintain the objective authenticity of their news reports in accordance with general news standards, rather than be required to stick to the objective reality absolutely and accurately, let alone in strict accordance with the standards of collection evidence in legal proceedings (whether in form or in substance). Judicial organs should not impose the obligation of confirming the absolute authenticity of information on the media in that they are not professional criminal investigation or investigation agencies, and the obligation is beyond the reasonable scope they can bear. Therefore, if the news media and journalists can find appropriate news sources for the facts expressed in their news reports and have given due explanations, the content of such news reports should be true. Otherwise, the interview process will become the process of evidence collection in civil proceedings, and the journalist profession will accordingly become a legal profession.
As far as the typical case is concerned, the court defined the extent to which the media confirms the authenticity of the information as follows: "As long as the content of a news report is supported by sources of information that, in the judgment of the interviewer by the cognitive ability of an average person, are reasonably believed to be facts, rather than hearsay or even fabricated, the news organization will be granted the fact-related immunity conferred upon by law, and the content it reports shall not be regarded as seriously untrue even if the content of its report is not completely consistent with the objective facts." This extent can be regarded as quite reasonable.
2. The burden of proof and civil liability of the media
Regarding the requirements on the burden of proof of the news media, we hold that the biggest aim of the news media is to satisfy the public's right to know, and the sharing of the burden of proof should follow the following principles:
Firstly, if there are any disputes about the facts of a news report, the party raising the disputes should provide sufficient counterevidence. Otherwise, the news report should not be untrue, and the news media should not be required to prove the facts of the news report.
Secondly, the evidence provided by the news media should be considered to be sufficient so long as the media can prove that the content of the report does have news sources, and such sources are appropriately explained according to the condition of such sources; and
Thirdly, if there is no evidence to prove that the news media is malicious, their civil liability should be mitigated or exempted.
In a word, the distribution of burden of proof should consider the limitations and particularities of the ways and means of contacting and acquiring news facts in news interviews, and the burden of proof should be shared in a reasonable manner. After reasonably sharing the burden of proof according to the above principles, the news media should also assume due legal responsibilities.
If we do not follow the above principles, but improperly and mechanically follow the principle of "whoever claims bears the burden of proof", which is most commonly used in civil proceedings, and require the media to provide legal evidence for the objective authenticity of the content involved in their reports, the chances are that the news media, in doing reporting, especially critical reporting, will either be walking on thin ice, requiring companies such as state organs or lawyers, or face great professional risks and often become the losing defendants. Both cases will eventually result in that the news media cannot work properly, the voice of criticism and supervision becomes silent out of fear, and the social function of public opinion supervision is ultimately greatly weakened or even vanished.
In his article entitled "The Legal Dilemma of Media Speeches", Mr. Chen Zhiwu, a guest professor of Tsinghua University, sums up some basic consensus reached by the domestic media law circles in the field of news right infringement: "Firstly, when the objects of a report are public figures (including administrative officers and other persons exercising state power), the law shall be applied in favor of the media's right of speech; secondly, when the content of a report involves the public interests, the media's right of speech shall take precedence over the right of reputation; thirdly, when the objects of a report or comment are general citizens or the content has nothing to do with the public interests (such as private affairs), the right of reputation shall take precedence over the media's right of speech; and fourthly, when the objects of a report are legal persons, the media's right of speech shall take precedence over the right of reputation of the legal persons." We conclude that the above principles should be embodied in the trial of the typical case.
III. Maximizing rights within the framework of existing rules
Now that the case has been brought in court, we must consider the background of the current social reality and judicial trial status quo in China. Only in this way can we see the real situation of the typical case. We hope to achieve the rule of law. To this end, the most basic requirement is to make full use of the rule of law approaches, otherwise we will be self-contradictory.
Therefore, respecting and making full use of the current civil procedure system, exercising the litigation rights as defendants to the greatest extent, maintaining the best interests that can be achieved under the current circumstances, may become the best choice for such cases.
We do not encourage the excessive use of ideas, theories or foreign precedents as the main force or reason for defense in that some of them may be too theoretical to be used, some may not accommodate local condition, and some are simply clichés with some new terms, all of which are difficult to be accepted in judicial practice.
Litigation is a practical work with strong operability, which requires grounds, reasons and operability. It is not in the interests of the parties to go beyond the actual litigation environment.
However, it is not desirable to confine oneself to the existing trivial operational matters without properly upgrading the theory or actively seeking some reforms and breakthroughs in judicial proceedings. It is better to grasp the updates on judicial reforms, courts, and judges especially under the current social conditions which offer favorable political and public opinion situations. But this should be put in a minor position.
Within the existing framework, we can fully explain and argue on the burden of proof and other issues, express our ideas or thoughts through the existing framework and rules, and try our best to persuade.
As far as the typical case is concerned, we first took full and detailed investigation and evidence collection as the basis for our defense, communicate with the interviewees for multiple times, and asked them to testify in court as witnesses. The defendant submitted a total of 25 pieces of evidence, all of which were true except for some anonymous materials. It is these evidence that enabled the court to finally ascertain that the facts on which the defendant's article relies have reasonable and credible sources, and the issues reflected in the defendant's article are basically true, and to reject the accusation by the plaintiff.