Posts tagged: defemation

Truth, Lies or Justice: Defamation in the Chen Yongzhou Affair

By , November 14, 2013
The crime of defamation

The crime of defamation

The detention of journalist Chen Yongzhou, his employer New Express’s front page editorial pleading that he be set free, and Chen’s subsequent televised confession to accepting bribes and writing false articles against Changsha’s Zoomlion, all the while in Changsha police custody, is, even for China, unusual.  But the question is – was it all legal?

Last week, China Law & Policy examined whether Changsha police followed proper procedures in detaining Chen, especially since they went to Guangzhou to find him.  Today, we look to the underlying charges – mainly the claim that Chen defamed Zoomlion and thus is subject to arrest.  Is defamation a crime?

Watch What You Say…..Criminal Defamation is Legal in China

Like it or not, China’s criminal law covers defamation.  Article 246 makes it criminal to “publicly humiliate another person or invent stories to defame,” providing a potential prison term of not more than three years.  But as Mei Ning Yan stated in Criminal Defamation in the New Media Environment – the Case of the People’s Republic of China, Article 246 covers defamations of actual persons, not corporations.

That is why immediately following Chen’s apprehension, state-run news outlets like Xinhua stated that Changsha police had detained Chen on suspicion of “damaging business reputation,” a defamation-like charge found in Article 221 of the Criminal Law which subjects the defendant to up to two years in prison.

According to Chinese news reports, on September 9, 2013, after over a year of alleged defamatory articles published by New Express, representatives of Zoomlion complained to the Changsha police about the articles.  The Changsha police investigated the charges and on October 18, 2013, went to Guangzhou to apprehend Chen (see Stealing Suspects to understand the law surrounding cross-province detention).  On October 30, 2013, Chen was formally arrested on charges of damaging Zoomlion’s reputation.  The allegations and the charges are all legal under Chinese law

People in Glass Houses…..the U.S.’ Use of Criminal Defamation

The rise of commercial media in China

The rise of commercial media in China

While many Americans are surprised to learn that defamation can carry prison time in China, China is not alone in criminalizing defamation.  As of 2006, seventeen states in the U.S. still maintain active criminal defamation or criminal libel statutes.  While in most states the charge is a mere misdemeanor, one state – Massachusetts – provides for a prison sentence of up to one year.  In 1966, in Ashton v. Kentucky, the United States Supreme Court examined Kentucky’s criminal defamation statute and although held it unconstitutional, it was only on the grounds that the use of “disturbing  the peace” to define the crime was too vague to pass muster.   The crime itself was not a problem; just the way it was defined, or more aptly not defined.  The seventeen states that retain a criminal defamation or libel statute have much more clearly defined laws that could potentially pass the Ashton test.

Since the 1966 Ashton case, criminal defamation has rarely been prosecuted.  But more recently, there has been a bit of a revival in the United States, at least in examining these statutes intellectually in light of the internet age.  Criminal libel and defamation statutes are seen as a possible to deterrent what has become a more common problem in the United States: cyberbullying.  In “Kiddie Crime: The Utility of Criminal Law in Controlling Cyberbullying,” Megan Rehberg and Susan W. Brenner note the recent rise in the call to use current criminal law, including criminal defamation statues, to criminalize cyberbullying.

While Legal, the Use of Criminal Defamation is an Odd Choice in this Case

Criminal defamation is a rarely used tool in the United States because individuals and corporations have an alternate option: civil defamation claims.  Bringing the case civilly entitles the victim to compensation.  For most, especially for businesses, monetary compensation is a lot more rewarding than having the perpetrator sit in a jail cell.

Although an October 29, 2013 op-ed by Ku Ma in the English-language version of  the China Daily asserted that there is no ability to bring a civil defamation claim, that is just not true (and might explain why that op-ed has been pulled from the China Daily website although still available here).  Since the 1987 adoption of the General Principles of the Civil Law (“General Principles”), where reputation has been harmed, civil defamation claims are permissible under Article 120 for both citizens and “legal persons” (businesses).

Chinese policeUnder the General Principles, the victim can sue the perpetrator for the following remedies: (1) to stop the defamation; (2) to restore his reputation; (3) for an apology; and (4) for compensation, both economic and emotional.  These remedies are not available under the Chinese criminal law.

And the victim can bring the civil defamation claim in his home jurisdiction.  According to the Supreme People’s Court’s  1998 Interpretation of the General Principles, the “consequences of the crime” in defamation cases can be the plaintiff’s hometown.  So for a company like Zoomlion – where the provincial government as its controlling shareholder and it is an important economic force in Changsha – bringing a civil defamation charge in Changsha would likely have a close to 100% success rate.  According to a 2006 study by Prof. Benjamin Liebman examining defamation cases in China, cases brought in the plaintiff’s home jurisdiction have an 82% success rate.  That rate increases to 88% where the plaintiff is also a Party-State actor.

So if you are Zoomlion, why bring the criminal action?  Why not go for the civil claims and at least get paid?  Prison time for Chen doesn’t necessarily make you whole.  And Zoomlion gets the apology either way.

Only Zoomlion knows why it choose to go the criminal route and not the civil one.  But in trying to find some rational reason, one can’t help but wonder that maybe Zoomlion wanted to avoid a civil trial.  A confession from Chen, held incommunicado in Changsha, would mean that a court would only have a short criminal trial with little testing of the evidence (in China, “plea bargaining” doesn’t avoid a criminal trial, it just shortens it.  See here for a detailed explanation).   With Chen’s confession, Zoomlion would not have to worry about “truth” as a defense to defamation.

But with a civil defamation trial, New Express would likely play an active role and even though Zoomlion would likely win, New Express might want to bring them down with them, exposing even more evidence of Zoomlion’s corruption.

Another alternative theory is that the Party-State wants to send a signal to an increasingly aggressive media:  the government is still in charge; that under China’s new president, Xi Jinping, the commercial media will be reigned-in.  The years 2008 to 2012 witnessed the central government’s clamp down on a once increasingly vibrant public interest lawyer bar.  While still active, that bar is under constant assault.  Does 2013 begin the start of a similar and severe clamp down on the commercial media?

But these theories are speculation.  Perhaps Chen is guilty of accepting bribes from Zoomlion’s competitor and wrote false articles.  The only one thing we know for sure is that Chen’s televised confession and his “trial by television” (as Peter Ford has coined the term) does a disservice to a rule of law.  Instead, like the Gu Kailai trial and subsequent Bo Xilai one, the Chinese government has merely continued to demonstrate that for legal cases that would test the system and challenge vested powers, its merely sham justice.  Who the Chinese government thinks it is fooling is unclear.

Stealing Suspects? The Interesting Case of of Chen Yongzhou

By , November 7, 2013
New Express Headline asking for the release of their reporter, Chen Yongzhou

New Express Headline asking for the release of their reporter, Chen Yongzhou

Last month’s drama surrounding the detention of journalist Chen Yongzhou’s (pronounced Chen Young-joe) by Changsha police, and his employer’s  front page plea for Chen to be freed (“Please Release Him“), sent shock waves through the China-watching world.  Was a local, albeit scrappy newspaper really taking on another city’s public security forces?  Was it really publicly shaming them and essentially implying that the Changsha police were on the take?

But for many Americans watching these events unfold, the most puzzling aspects of the situation was not so much the David-and-Goliath narrative of the New Express newspaper confronting the Changsha public security bureau.  Rather, most Americans were probably confused about two things:  (1) police in one province can just go to another province and willy-nilly take someone away? and (2) defamation is a crime in China?  This post will focus on the former.

Cross-Border Journalism Leads to Cross-Border Detention in China?

Chen and his colleagues at New Express are part of a new breed of journalist in China – muckrackers looking to hold powerful interests responsible and seeking to expose the truth that is often kept hidden by the government.  For the past 18 months, Chen’s focus had been on Zoomlion,  a construction equipment maker located in Changsha, Hunan province.  Zoomlion is no ordinary construction equipment company; it is the country’s second largest construction company and in a country where construction is non-stop, that means wealth and power has accrued to the company.

Although Chen and New Express are located in Guangzhou – a city over 400 miles from Changsha and located in an entirely different province –

A Zoomlion product

A Zoomlion product

it is not peculiar that it chose to write and publish articles about Zoomlion.  In China, where the local governments and local businesses are often in a symbiotic relationship and where the local Party is the law, it is commonplace that the local newspaper does not write about the corruption in its midst.  Instead, it is an outsider newspaper – one as far away as Guangzhou – that will pick up the story.

Chen’s articles on Zoomlion fit this pattern.  According to Bloomberg, Zoomlion’s controlling shareholders are Hunan State-Owned Assets (holding 19.97% of all A shares traded on the Shenzen exchange) and the Hunan government (owner of 16.2% of all outstanding shares of the company).

By May 2013, Chen was writing hard-hitting articles uncovering facts about the company that suggested it falsified its sales figures and was committing fraud on the market; a serious allegation for a company that trades on both the Shenzhen and Hong Kong exchanges.  After his May 27, 2013 article, Zoomlion’s shares took a 5.4% hit on the Hong Kong stock market.  While it denied Chen’s allegations, Zoomlion could not have been happy.  But what is a Changsha company to do when the reporter and his newspaper are located in Guangzhou?

As far as the world knew, Zoomlion did nothing.  But then on October 23, 2013, New Express  stunned the world with its front page editorial acknowledging that the Changsha police had come to Guangzhou, detained Chen, and brought him back to Changsha where he remained in detention.  The allegations: that Chen’s articles were false and defamed Zoomlion.

But do the police in one city have the power to swoop into a city in a different province and take away a suspect back to their home city?  To Americans, this seems illegal.  In the United States, because each state is sovereign within its territory, New York City police cannot just go to Boston and arrest the suspect they think did the crime.  Rather, the New York City police must go through the legal proceeding of extradition:  the New York City police must present the indictment to the Governor of Massachusetts who then has little choice but to consent to the arrest and orders Massachusetts or Boston police to arrest the suspect and eventually hand him over to New York City police to bring back to New York City.

handcuffsIn China, things are not that different.  Like in the U.S., there is a recognition that at times, a criminal suspect might be living outside the confines of a local police bureau.  The new Criminal Procedure Law (“CPL”)and its interpreting  and implementing regulations – in particular the Ministry of Public Security’s “Procedural Regulations on the Handling of Criminal Cases by Public Security Organs (revised 2012)” (“MPS Regulations” or “Regulations”) – do contemplates this fact.  Article 24 of the CPL makes it clear that by default jurisdiction of a criminal case is based on where the crime was committed.  The MPS Regulations re-affirms this.  Article 15 of the MPS regulations gives jurisdiction of a case to the public security bureau at the “site of the crime”, a term it defines as including  not just the site of the actual criminal acts, but also any location where the consequences of the crime occurred. For a newspaper or online article, the consequences of the crime might be felt in a great number of locations, and the first public security bureau to file the case will exercise jurisdiction.  The public security bureau at the place of the suspect’s residence can have jurisdiction when more appropriate, even if it isn’t a site of the crime.

As Jeremy Daum, research fellow at the Yale Law School’s China Law Center and founder of China Law Translate, pointed out recently, the Criminal Procedure Law and MPS Regulations clearly address activities by police  outside of their geographic area – what Americans would likely compare to extradition.

An entire Chapter of the Regulations – entitled Cooperation in Case-Handling (Chapter 11, encompassing Articles 335-344) – specifically deals with these situations.  As Daum noted, in terms of detaining a suspect, “Articles 339 and 340 [of the MPS Regulations] describe situations where police either take custody of someone in another jurisdiction or request that local police act on their behalf. Generally, the outside force has an obligation to contact the locals and to have the necessary authorizing paper work with them, and the locals have an obligation to facilitate.”

At this point, this pattern is not that different from what occurs in the United States when one state seeks to extradite a criminal suspect.

Seal for China's Ministry of Public Security

Seal for China’s Ministry of Public Security

Although there a few, technical grounds upon which a U.S. governor of one state can deny another state’s extradition request, in general, extradition is mandated by the  U.S. Constitution if the other state presents the indictment.  The requesting state can go to federal court and compel the governor to extradite the suspect if she refuses on illegitimate grounds.

But where China differs from the U.S. in its proceedings is that the requesting police physically go to the local police’s territory to take the suspect back to their city.  In accordance with Article 340, after the local police apprehend the suspect, the outside police must immediately pick up the suspect and bring him back to its territory.  In fact, Article 122 requires that the outside police do so within 24 hours.

Was Chen Yongzhou Properly Detained?

It does appear that Chen was in fact properly detained in accordance with the MPS Regulations.  Whether the Changsha public security bureau’s underlying claims against Chen are just is less apparent, but in terms of the procedure for cross-provincial transfers of a suspect, the Changsha public security officials likely complied with the Regulations.

Here, the Changsha police likely have a valid argument that the crime occurred in its jurisdiction or its consequences were the most strongly felt in its jurisdiction, giving it the right to assert its jurisdiction.  Zoomlion, the entity that was allegedly injured by Chen’s articles, is located in Changsha.

According to a Freedom House bulletin, on October 18, 2013, after being summoned, Chen went to the Guangzhou police station.  Once there, according to an article from the China Times News Group, Changsha police confronted Chen with a document listing his crimes and then placed him into its custody for transfer to Changsha.

Chen in the custody of Changsha police

Chen in the custody of Changsha police

It appears that the Changsha police complied with the MPS regulations concerning “Cooperation in Case Handling:” (1) Chen was summoned to the local police station by the Guangzhou police, (2) while in the Guaungzhou police station, the Changsha police presented him with a document listing his crime (perhaps the required authorizing paperwork), and (3) Chen was immediately transferred to the Changsha police and brought to a Changsha detention center within 24 hours.

Although the underlying criminal charges reek of corruption and a Changsha police department possibly at the beck and call of Zoomlion, it is still important to recognize that the Changsha police likely followed the law in obtaining custody of Chen.  To ignore this fact does a disservice in criticizing other aspects of this bizarre case.

One such bizarre aspect is Zoomlion turning to the criminal law for a charge of defamation.  Is this legal?  Find out in part 2 of this article posted here.

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