China: Maintenance of Public Figure's Reputation: Q&A

Last Updated: 27 March 2017
Article by Xie Yi

What is a "public figure"?

It is generally accepted that the first explicit use of the term "public figure" in Chinese court documents was in a case heard by the Shanghai Jing'an District Court, in which Fan Zhiyi sued Wenhui Xinmin United Press Group for infringement of the right of reputation (defamation). The court held that it was not inappropriate for the defendant to act as a news medium by investigating the focus of universal attention and exercising its right of news coverage and its "watchdog" functions for the purpose of providing clarification to the public. Even if the plaintiff alleged that the media's direct mention of his name in a report about his involvement in sports gambling damaged his reputation, as a public figure, the plaintiff must tolerate and understand the potential minor damage created in the process of the media's performance of its appropriate watchdog functions.

The Difference between Public Monitoring and Malicious Harm

After the Fan Zhiyi case, legal scholars initiated a discussion on the "actual malice" principle of U.S. defamation law, which states that a public figure bears the burden of proving that the defendant acted with actual malice, i.e. knowingly and unscrupulously violating the law using information known to be untrue. From this perspective, what the plaintiff needs to prove is not his feeling that his reputation has been damaged and his social status degraded; but rather that the news has been used with malice from the defendant's point of view. This requirement would definitely increase the burden of proof on the plaintiff.

In a 2015 defamation dispute in which Wang Feng sued Han Bingjiang, Wang Feng alleged that Han Bingjiang's publication of an article entitled "Innocent Pioneer Casino Gambler in Love with a Film Star who Makes an Affectionate Stepmother" on his personal Weibo page and related media reports defamed him. The court held that it was not arbitrary for the commentator to link Wang Feng with gambling activities, since Wang had been reported by a number of foreign media outlets to have been repeatedly engaged in casinos outside of mainland China. The court noted that the article in dispute did not exceed the bounds of fair commentary and that it should be categorized as a reasonable exercise of the media's watchdog function. The court did not support the defamation claim, and it dismissed all of Wang Feng's claims at trial.

The "actual malice principle" was reflected in the trial court judgment. "The court further reminded the public that a public figure is expected to be aware of the impact and exemplary effects that his or her virtues and morals may have on the public, and therefore such a person should always pay attention to his or her words and deeds in public so as to set a good example for the public. On the other hand, in the self-publishing era, individual citizens should exercise freedom of expression using standard, polite and rational language. One should not pursue sensational reactions through indiscriminate word choice, unconstrained speech or words that cause damage to the legitimate rights and interests of others."

In the foregoing case, the court affirmed the principle that a certain amount of tolerance is expected of a public figure in order to encourage self-monitoring of his or her own words and deeds. The court also reminded the media of its obligation to exercise its rights in a restrained manner. Even if information is authentic, the media should adopt standard, polite and rational language to present it rather than reporting it without restraint. Damaging the legitimate rights and interests of another party in pursuit of sensational reactions is one of the specific manifestations of a willful offense, according to the court.

The Limits of a Public Figure's Duty of Tolerance

Of course, some limits should apply to a public figure's duty of tolerance. Based on legal scholarship and judicial precedents, we believe that the following principles apply in determining whether a specific behavior has crossed the line of permissibility:

  1. The principle of monitoring the behavior of public figures to safeguard the public interest. This principle applies to the monitoring of casino and sports gambling, for example, as long as it does not involve malice.
  2. The principle of exercising the right to know within the bounds of public order and good morals, as opposed to intrusion upon a public figure's private life.
  3. The principle of fair use of another party's rights. Media coverage of gambling, for example, may include a photo showing a public figure entering or leaving a casino, but may not include the misuse of his or her portrait for commercial purposes.

(Source: A Preliminary Discussion of a Public Figure's Duty of Tolerance in Disputes Concerning Reputational Rights by Xie Yi)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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