CHINA ESQUIRE

Review time… I didn’t think too many frivolous lawsuits happened in China. In fact, that’s often the criticism I hear about the United States. (think of lawsuits like McDonald’s making you fat, etc.) But here is a case where I think there is a frivolous lawsuit… in China of all places. Not that I don’t understand the sentiment behind the lawsuit. I do. But to actually allow this one to go to court? Let’s just say that if it does, China’s legal system will remain a laughing stock of the modernized world.

First the news itself:

A group of Chinese lawyers have sued CNN, saying remarks by commentator Jack Cafferty in which he called Chinese “goons” violated the dignity and reputation of the Chinese people, a Hong Kong newspaper said.

The Beijing-backed Wen Wei Po said the Beijing court had yet to accept the case, which comes amid a wave of criticism in China against Western news outlets in the wake of recent unrest in Tibet and disruptions to the Beijing Olympic torch relay abroad.

China’s Foreign Ministry summoned CNN’s Beijing bureau chief last week and demanded an apology after Cafferty said Chinese products were “junk,” adding the remark: “They are basically the same bunch of goons and thugs they’ve been for the last 50 years.”

One of the 14 lawyers who launched the case told the newspaper Cafferty’s remarks “seriously violated and abused the reputation and dignity of the plaintiffs as Chinese people, and caused serious spiritual and psychological injury to the plaintiffs.”

The lawyers sought the restoration of the Chinese people’s reputation through publications and in the media and asked for 100 yuan ($14.31) in damages, it said.

In response to the Foreign Ministry’s initial demand for an apology, CNN said there was no intent to cause offence and that Cafferty was offering a “strongly held” opinion of the Chinese government, not the people.

I know that China does not have free speech. But to allow civil liability for editorial comments will surely chill speech in China. Or even worse, force media outlets to censor… and of course, that will force the journalists to take underhanded jabs at China. Which will really screw up the desire for us to have factual, unbiased reporting. And of course, for more local news outlets without the reach of CNN in China, I can see reporters publishing stories with those local outfits to criticize China.

Either way, this will not help China. I think it will make the attacks nastier. People know Cafferty mouths off, and no one takes him all that seriously. I think this will encourage other reporters–who the public does take seriously–to adopt an anti-China stance. You mess with one journalist, you mess with all of them. But don’t tell the Chinese government that, because the government seems to stick its head in the sand when it comes to smart PR campaigns.

Of course, it wouldn’t be Chinese unless it had China sized damages. Reuters reported:

A Chinese primary school teacher and a beautician have filed a suit against CNN in New York over remarks they say insulted the Chinese people and are seeking $1.3 billion in compensation — $1 per person in China, a Hong Kong newspaper reported.

Seriously, $1.3B in damages?! Can we say groundless? Again, if you want to make China’s courts the laughing stock of the world, you would allow damages based on pure speculation and without any merit. Otherwise, give me a break. I really hope the court tosses this one out.

Here is Donald Clarke’s take on the law itself:

Chinese law does allow damages for what under US law would be considered merely insulting expressions of opinion (and therefore non-actionable) - I’m thinking of the case in which a journalism professor sued a web site for posting a student’s derogatory opinions about him and his teaching materials. (Discussed here.) Thus, under existing Chinese law, I think the Dalai Lama, Nancy Pelosi, Chris Patten, and Chen Shuibian might have a good case against Xinhua and various Chinese government officials (although of course the prospects of their being allowed to sue and win are, to say the least, remote). The problem here, though, is different: can individuals who feel offended by a general derogatory reference about their group do anything about it? (Let’s assume for the sake of argument that Cafferty was including all Chinese, and not just the government.) To allow this kind of suit is opening a real can of worms. The relevant precedent in this case might be the Zhengzhou lawyers who sued the Shenzhen Public Security Bureau because they were offended at the PSB’s insulting banner about Henan criminal gangs. (Discussed here.) That case ended in a mediated settlement, though, so we don’t have a court ruling. Still, I guess it’s significant that the court accepted the case in the first place, and didn’t throw it out immediately as not stating a claim. At the same time, though, the court in question was a Zhengzhou court, and in any case may not have analyzed the complaint in terms of whether or not it stated a claim for which relief could be granted.

I couldn’t agree more. If China thinks it’s a dandy law to allow to use against foreigners, just wait until people realize that it works against the Chinese government, which is just as slanderous and malicious as any other government. (like Nancy Pelosi and the Olympics opening ceremony)

Even worse, just imagine Chinese individual citizens using this against each other. It will get ugly. Because Chinese people don’t sue… unless there is a real vendetta. Loss of face is a cause for such a vendetta. So I foresee that this could become the precursor to some of the ugliest, scorched earth cases in court if allowed unchecked. If I were the court, I would want no piece of this.

Of course, the Chinese government right now doesn’t seem to think this. The article from Reuters goes on:

Asked if China supported the action against CNN, Foreign Ministry spokeswoman Jiang Yu characterized it as “spontaneous activity by Chinese civilians”.

“We will wait and see CNN’s response,” Jiang told a news conference, referring to the Foreign Ministry’s request for a full apology.

“We hope CNN will take this seriously, because what CNN said and did has not only hurt China’s feelings, but also CNN’s own image.”

I normally don’t take aim at the government. But this time around, I must say: the only one looking stupid and hurting its own image is China.

In summary, this is bad policy. Of course, it will be hugely unpopular in China if CNN got away. But for reasons having to do with policy and rule of law, it would be wise for the courts to drop this case really fast.

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