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)
Other (e.g.
internet search)
20%
Beida Fayi
(lawyee.net)
36%
Individuals
(e.g. lawyers,
litigant parties,
etc.)
5%
Books,
newspapers,
magazines and
court bulletins
19%
Zhongguo
Fayuan Wang
(China Court
Website)
20%
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
litigation
documents
Without complete
litigation
documents
ii. 100 Non-media Defamation Cases
100 Media
Defamation Cases
100 Non-media
Defamation Cases
• Randomly selected from
Beida Fayi
(www.lawyee.net);
• Complete legal
documents
VS.
• Randomly selected
600 media defamation
cases from the 800
case pool
• 100 media defamation
cases via systematic
sampling
iii. Survey on Media Professionals (N=96)
Media Type
Other
1%
TV
21%
Radio
7%
Magazine
29%
Newspaper
42%
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?
Has your media organization ever
been involved in reputation,
privacy, or portraiture infringement
lawsuits?
Percentage
Percentage
Yes, I have.
8%
Yes, it has.
50%
No, but my colleagues have
51%
No. it has not.
31%
I have no idea.
18%
Other
1%
experienced.
Neither I nor my colleagues
38%
have such kind of experience.
Other
3%
Main Findings
Longer time to close a case
Higher monetary compensation
More jurisdiction at non-defendant domiciles
More co-defendants sued together
i.
Longer time to close a case
Average
Duration
Comparison of Time Duration between
100 Ordinary Defamation Cases and 100 Media
Defamation Cases
12 months
Longest Time
to Close a
Case
12 years and 3
months
(147 months)
59
60
Non-Media
Defamation
50
40
19
30
20
8
11
10
0
Average Duration Longest Duration
Media
Defamation
ii. Higher monetary compensation
Average
Compensation
70,964 yuan
(U.S. $11,228)
Average
Compensation
5 million yuan
(U.S. $791,139)
Comparison of Monetary Compensation between
100 Ordinary Defamation Cases and 100 Media
Defamation
658,920
700,000
600,000
500,000
Media
Defamation
400,000
300,000
59,200
200,000
100,000
Non-Media
Defamation
44,461
6,847
0
Average
Compensation
Largest
Compensation
iii. More jurisdiction at non-defendant domiciles
Jurisdiction
Percentage
Plaintiff only
32%
Defendant only
17%
Both parties
40%
Other
12%
Impact on Media
Other
I don’t know.
Little effect.
It would reduce the winning chance of
media.
It would drain on manpower and
material resources of media
organizations and professionals.
3%
14%
18%
30%
44%
iii. More jurisdiction at non-defendant domiciles
Comparison of Jurisdiction between 100 Ordinary Defamation
Cases and 100 Media Defamation Cases
100%
80%
60%
86%
12%
40%
35%
20%
0%
Non-media
Defamation
Home jurisdiction of plaintiff only
Home jurisdiction of both parties
Media
Defamation
Home jurisdiction of defendant only
Other
iiii. More co-defendants sued together
0%
0%
1% 2% 1%
0%
Media
4%
Author
6%
News source
Other
48%
21%
Media and author
Media and news source
Media and other types
Author and news source
News source and other types
3%
6%
Author and other types
8%
Media, author and news
source
iiii. More co-defendants sued together
• In some situations, the number of media corespondents 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 defendants
Distinctiveness in infringement behaviors
Distinctiveness in defenses
Distinctiveness in remedies
i.
Distinctiveness in defendants
Defendant Type
Others
82
News sources
112
Number
Authors
261
Media
650
0
200
400
600
800
(Note: Cases with multiple defendants are included and calculated. )
ii. Distinctiveness in infringement behaviors
Infringement Behavior in Non-media Case
By letter
9
15
By leaflet and poster
5
By oral expression
18
13
By behaviors and
actions
Other
ii. Distinctiveness in infringement behaviors
Republishing Media’s Liability
Infringement by
republication
Co-defendants with
lighter liability than
original media
5%
27%
41%
Co-defendants with
same liability as
original media
Assume liability as
defendants alone
27%
Other
ii. Distinctiveness in infringement behaviors
Infringement by
continuous
report
Continuous Report Media’s Liability
Other
36%
No
supported
by courts
27%
Supported
by courts
37%
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
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
60%
50%
40%
30%
51%
20%
31%
18%
10%
0%
Liability lightened
Liability not
lightened
Other
iv. Distinctiveness in remedies
Remedies
Percentage
Monetary
82%
Non-monetary
16%
Unknown
2%
Types of Monetary Compensation
60%
50%
50%
40%
30%
20%
19%
24%
7%
10%
0%
Economic loss
Mental
Economic loss
only
suffering only and mental
suffering
Unknown
iv. Distinctiveness in remedies
Comparison of Remedies between 100 Ordinary
Defamation Cases and 100 Media Defamation Cases
Other
120%
100%
36%
18%
80%
Non-monetary remedies
Monetary compensation
for both economic loss
and mental suffering
Monetary compensation
for mental suffering only
60%
40%
20%
0%
Non-Media
Defamation
Media
Defamation
Monetary compensation
for economic loss only
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!