Thanks to the Leveson inquiry, the British media system and news-gathering practices have been the subject of extensive public discussion and debate. Yet, little attention has been given to how favourably our system – even with all its flaws – compares to those in other countries. Through a project supported by the Great Britain China Centre (“GBCC”), Chinese academics and judges have been looking to our jurisdiction for guidance on how to protect Chinese media and journalists.
In China, there is no enshrined right to freedom of expression. Nor are newspapers and their editors presumptively free from political or other oversight. Although investigative journalism and local media are growing, there is still sufficient control from domestic institutions that reporters and editors must manage their stories and campaigns with some care. Internet content is still censored, and access to large swathes of information and websites are restricted. China might have none of the libel laws said to be so restrictive of the press in this jurisdiction, but this absence does not yet equate to an unfettered freedom to gather, write and print stories.
In 2009 the National People’s Congress passed a Tort Law. By Article 6 of this, tort liability exists where a civil right is infringed. Article 2 defines these civil rights to include “…the right to name, the right to reputation, the right to honour, right to self image, right of privacy…”
In order to assist judges in interpreting the tort law in media cases, academics at the Research Centre of Civil and Commercial Jurisprudence at Renmin University, Beijing, in collaboration with practising Chinese judges, and with the support of the Great Britain China Centre, have produced a judicial ‘handbook’ on media torts. The handbook is informed by previous judicial decisions, theoretical studies and international practice, and is designed to be “overwhelmingly practical”. It does not have the status of formal law, but in setting out the principles, defences and remedies to be considered, is intended to comprehensively guide and assist judges dealing with media cases.
There is no doubt that the principles in the handbook amount to a progressive and protective attitude towards media publishers in China. There are no fewer than 29 defences set out. Even though some of these are, I think, better understood as examples of situations where the cause of action will not be made out rather than substantive defences, the sheer number still shows the protection intended to be accorded to the media. Further, the drafters have set out principles which recognise not only the importance of the media’s role in disseminating information, but also the public’s right to know, and at points have been bold enough to tackle issues we have yet to fully grapple with in this jurisdiction. This is particularly so with internet publications. The handbook provisions set out the level of awareness of and involvement with defamatory content that an internet publisher must have to be fixed with liability, as well as a comprehensive procedure for complaint, notification and take-down of defamatory website material without the need for judicial intervention. Moreover, the guidelines seek to provide an explicit defence for news aggregation or collation websites, which automatically republish material without amendment.
Of course, the handbook is not without its difficulties. In particular, in formulating the guidelines, the drafters have not been able to escape from past Chinese court decisions which sit uncomfortably with the other, new, principles and aims. Secondly, the drafters have transplanted English and American principles into the guidelines, where they do not always fit, either with each other or with the Chinese political reality (the American public figure doctrine from New York Times v Sullivan for example, carries none of its original weight in a system where party officials are simply not counted as public figures). Thirdly, in seeking to provide comprehensive guidelines, the drafters have focused on specific examples, without setting out the principles which should inform those cases which fall outside or between them. And fourthly, in setting out quite so many defences, the drafters risk confusing both the media and the judges, and dissuading them from engaging with and relying on the guidelines at all.
The handbook is part of a three year project, begun in 2011, to promote legislation and reforms in media regulation and policies in China. As part of this, a series of lectures and workshops have been arranged with European and Chinese practitioners to discuss and analysis its provisions. It was one of these that I attended in February 2012 near Beijing. These workshops facilitate an open discussion about the media tort law in China, and – in my experience last month – judges are keen to use these opportunities to engage with the issues carefully and constructively. One of my roles at the workshop in February was to critique a mock trial conducted by Chinese advocates, and adjudicated by real judges. This kind of engagement with the guidelines really helps to draw out their strengths and weaknesses, and help judges to understand how to address media cases when they arise.
There is still a long way to go before foreign publishers would be likely to feel comfortable about submitting to Chinese jurisdiction on these issues. But the guidelines represent an important step in the right direction, towards the promotion of a healthy Chinese news dissemination industry.
Clare Kissin is a barrister at One Brick Court. She was invited by the GBCC to attend and speak at the Judicial Workshop on the Judicial Manual of Media Torts, entitled “Promoting Legal Protection for the Media in China”, in February 2012. The project is funded by the UK FCO and the EIDHR. More information can be found on the GBCC website or Renmin University website.