The most notably and widely discussed issue around this Chinese New Year, to Bridge IP Law Commentary’s opinion, is probably not the traditional spring festival variety show on CCTV, but the argument between Fang Zhouzi, a self-claimed anti-fraud cop or myth buster, and Han Han, an acclaimed writer in China. The flame battle started from a blog by Mai Tian, a better-known blogger, doubting many works of Han Han are actually written by his father or other unnamed writer while published in his name. Despite it ends in Mai Tian’s apology and admission of mistake, the issue opens the Pandora’s box of doubts on Han Han. Afterwards, Fang Zhouzi took the relay baton, who was counter-backed by Han Han and his father, and moreover Han Han showed his original manuscript for proving. After days of online words war, Han Han filed the lawsuit for the reputation infringement and claimed the compensation of 100, 000 yuan.
As the legal attorney, we believe the case may produce positive impact in China, for it involves the argument of the boundary of free and the difference between question and personal attack. For the dispute has been sent to the court, Bridge IP Law Commentary has no intention to discuss the case, however, we would like to introduce the reputation infringement system in Chinese laws by this chance.
In China, the legal basis of reputation infringement mainly provides in “Tort Law” and judicial interpretations about reputation right infringement issued by Chinese Supreme Court. Accordingly, we make the conclusion as follows:
I. The judgment of reputation infringement
According to the provisions in The Answers on Several Issues on the Hearing of Reputation Involved Cases issued by China Supreme People’s Court, the reputation infringement could be established by two features, first is to make the infringement in public (like the internet) or known to the public, and second that the claims leading to the damages are not true and obviously kind of personal attack.
The most controversial issues in reputation disputes appear to be the truth of the released or published information by the claimed infringer, such as the unconfirmed negative news and critical commentary. To our experience, once there are only the objective analysis on the open facts or comments with the reasonable scope, even it result in the damage to others reputation, it still not be the reputation infringement. And the infringement could only be determined when malicious criticize with the negligence of truth for the protection of free speech, which is more valued in China.
II. Damage consequence
The damage refers to the decreased social evaluation to the infringed party, which is hardly be measured by laws and regulations but shall be judged in single specific case. For example, to a writer, the unverified claim of plagiarism will seriously affect his/her reputation and the evaluation by others, which could constitute the reputation infringement. However, on the other hand, the assertion that he could not swim, though its inconsistence with the facts, will either lead to the evaluation reduce or the reputation infringement. Surely, most cases heard for the reputation infringement in China now involve personal attacks by either party, and that will no doubt be judged the liability of reputation infringement.
III. The liability of the infirngement
1. The civil liability. The liability of reputation infringement in China is mostly be judged in civil court, with most plaintiffs aiming at their innocence. In general, in addition to the compensation for the actual losses of victims, the infringer tends to be claimed of apology and effect elimination. While, as to the spiritual damages, just like IPR cases, the compensation amount hereby judged is not high, with most cases we have handled or know could be compensated for a few thousand yuan.
2. The criminal liability. The crime of defamation may be constituted shall the misconduct of the infringer is serious enough (such as malicious rumor or personal attack) to materially influence the victim (such as the consequence of mental disorder or suicide), and thereby the criminal liability shall be taken by the infringer. By China criminal law, except the condition of the national interest is damaged, the crime of defamation shall be self prosecuted and the highest penalty could be 3 years.
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Author: Luo Yanjie
Attorney-at-law of DeBund Law Offices
Co-author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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Bridge IP Law Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works. And all news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works. You may contact us shall you have any opinions or suggestions.