By You Yunting

Some friends raised me a question on Zhihu.com, a Quora like website in China, that Fang Zhouzi, a well known blogger in China, put his photographed picture of Han Han, in which Han’s background is the height table in jail , then could it be kind of reputation infringement against Han? (see http://weibo.com/1195403385/yiRc64nL7, http://weibo.com/1195403385/yiQZJhg1G)

The battle between Fang and Han is the hottest spot on China internet, and our website once posted articles to introduce the online battle and laws and regulations related. But from this January, Fang’s Weibo is flooded with more than 10 tweets against Han each day, which is truly annoying. As a man favoring Han Han, it’s truly a distress for me to face the question on Zhihu.com. But for the answer concerns the freedom of speech, though I could have refused it, I finally choose to share my opinions on it even there’s only boots rather than applauses ahead. Surely, the reply is only focusing on the “infringement” by two tweets in the links above.

The following is my thinking process: Legally, it’s risky to constitute the reputation infringement when the unauthorized using of other’s image could lead to the negative comments or effects, but a more specific analysis is demanded for the final determination:

Many friends on Weibo appear to be indignant and claim Fang is obviously conducting the infringement, even more, some of them made complaint to Sina.com for Fang’s violation against the community rule on Weibo. At the first sight of the picture, I also felt it to be a little bit outrageous, how could a man put Han Han on such a background hinting him a criminal? The basic rule of reputation infringement is no insult to others; therefore, it’s obviously an infringement. But thinking otherwise afterwards, the event is more complicated then I first thought, and no simple conclusion could be made thereby. The problems below are connected to the event:

1. The problem of Han’s height. Fang’s doubt is not totally without any cause. Han claims his height of 173 cm (approximately 5 feet 6 inches) which is questioned y Fang with some evidences. (like the pictures below, Han Han seems to be not much higher than Pan Xiaoting, who is a 9 ball player and claim herself 160 cm, approximately 5 feet 2 inches, therefore, Fang even points out Han is only 165cm, approximately 5 feet 4 inches). May be you will say, like some netizens, that how could Fang be so boring? But you shall not say he has found no flaws. The unpleasant picture uploaded by Fang, from some aspects, is a way to question and criticize Han, who could not survive the criticism as a public figure. Even Fang were wrong this time, his right to question shall be legally protected.

2. Both Han’s reputation and Fang’s freedom of speech shall be legally protected, but Fang’s picture does produce a negative influence. Then what could we do when there arises a conflict? To my view, the picture could constitute infringement when the picture smearing Han while no such liabilities when the picture is mainly used for sarcasm.

3. Sarcasm or Smear? From the picture, Han is smiling, therefore it could be concluded, though no illustration, that most people tend to misunderstand Han were a criminal suspect on the picture. Furthermore, Fang did not abuse Han with dirty words or the picture is involved with any vulgar contents. Meanwhile, as a common sense, the lie of one’s height does not constitute the crime. Therefore, in my opinion, the tweet is more for sarcasm than smear.

4. Despite Fang goes too far in questioning Han, the law tolerates the questioning with evidences and sarcasm with no dirty works or vulgar contents. In such situations, the infringement shall be determined diligently and the freedom of speech shall be protected, otherwise, no right to criticism could be exercised.

Of course, in China, the courts often tend to tilt the balance to reputation infringement when there is the conflict with the freedom of speech. For this reason, Han still has chance to  win the case once he chooses to sue Fang for the reputation infringement.

Other posts related on our website:
1. Analysis on the Copyright Infringement on Microblog
2.China Supreme Court’ s Advanced Judge Commented on Microblog Copyright Protection
3. Could Tweets be Protected by Copyright Law in China?

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You Yunting

86-21-52134918
youyunting@debund.com, yytbest@gmail.com

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