of Chinese media in Beijing workshop
The increasing conflicts between defamation and free speech in the Chinese media was the topic of a workshop recently held in Beijing by the Law School's China Law Center.
China's media, once typified by the People's Daily, the "mouthpiece" of the Communist Party, have in recent years begun a transformation into a glossy marketplace of magazines and newspapers that would look at home on any American newsstand. China's media are beginning, in some articles, to criticize government policy and expose corruption and misconduct. However, government officials have fought this criticism by bringing defamation lawsuits for harm to their "reputation."
Legislators in the National People's Congress are currently considering China's first Tort Law, which would set the rules for such defamation suits. As a result, the role of defamation lawsuits is threatening the media's emerging independence, and the balance between reputation, privacy and free speech are the subject of hot debate in China.
The two-day workshop sponsored by The China Law Center brought together prominent Chinese officials, judges, scholars and lawyers to debate the need for greater media protection. The chief Chinese organizer was Wang Liming, the country's most prominent civil law scholar and a member of China's legislature, who is playing a central role in the drafting of the new Tort Law. Wang was a visiting scholar at the Yale center for several months last fall. About 30 Chinese participants attended the workshop -- including officials from the National People's Conference and others who oversee media regulation.
"The role of the media is still very sensitive in China," said Paul Gewirtz, director of The China Law Center and the Potter Stewart Professor of Constitutional Law, "but tort law provides a relatively technical legal forum in which to discuss important values, including the role of the media in society and the value of free expression."
Also participating in the workshop were American experts on media freedom and tort law, including New York Times columnist Anthony Lewis; Robert Post, the David Boies Professor of Law at Yale; Judge Robert Sweet, '44 B.A., '48 LL.B.; Kenneth Abraham '70 J.D., professor of law at the University of Virginia; and Michael Chesterman, professor of law at the University of New South Wales and Australia's leading defamation law expert.
According to legal experts, one of the most important issues facing drafters of the Tort Law is how to frame provisions on defamation to balance protection of reputation and privacy with the values of freedom of expression and speech. The nation's Cultural Revolution (1966-1976) was marked by the use of extreme forms of public criticism and violence directed at individuals, but China's constitution now protects citizens' right to reputation. The new law will codify the last 15 years of judicial practice, and may include explicit provisions on "media torts" and protection for media criticism of official government acts. Yet these issues remain extremely sensitive, and some in China argue the new Tort Law ought to steer clear of explicit recognition of the media's role.
The two-day workshop included frank debate about the difficulties facing journalists who write articles critical of government officials. Two prominent Chinese lawyers who represent journalists offered concrete examples of the challenges they face. The U.S. participants focused on the positive roles that the media can play in society, and emphasized the need for sufficient "breathing space" to criticize government policy and official acts. Chinese scholars, who generally support expansion of the media's role, used the workshop as an opportunity to argue before the officials who are writing the new law.
Restrictions on the media in China are still substantial, and critical articles can often land journalists in far more serious trouble than a civil suit. Yet China Law Center senior fellow Jeffrey Prescott argued that this makes the debate over the Tort Law that much more important.
"There is unlikely to be specific legislation protecting the media in China anytime soon," noted Prescott, who is based in Beijing. "Our judgment is that reshaping defamation law may be one of the few areas where it may be practically possible to improve the legal protection of the media in China."
Gewirtz, China Law Center staff and the U.S. expert group also met with senior officials of China's legislature in a private dinner at the Great Hall in Beijing. The workshop and meetings are part of the center's ongoing project on constitutional law reform, which includes issues of free expression and free speech. Last year, the center held a high-profile conference on public opinion and the role of the media at Beijing's Tsinghua University. Later this year, the center is planning a workshop with Peking University on constitutional review as well as a series of high-level visits by U.S. judges and scholars to discuss free speech with Chinese officials and scholars.
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