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China Law Center Convenes Discussion on Defamation and Free Speech in Beijing

China's media, once typified by the People's Daily, the drab "mouthpiece" of the Communist Party, have in recent years begun a transformation into a brash, glossy marketplace of magazines and newspapers that would look at home on any American newsstand. Though hard-hitting content has developed slowly, China's media are taking small steps toward greater independence--beginning in some articles to criticize government policy and expose corruption and misconduct. However, government officials have fought this newly-found space for criticism by bringing defamation lawsuits for harm to their "reputation."

Legislators in the National People's Congress are currently considering China's first Tort Law, which would set the rules for such defamation suits. As a result, the role of defamation lawsuits in threatening the media's emerging independence, and the balance between reputation, privacy, and free speech are the subject of hot debate in China.

Yale Law School's China Law Center recently held a two-day workshop in Beijing that brought together prominent Chinese officials, judges, scholars, and lawyers for a spirited discussion of the need for greater media protection. The chief Chinese organizer, Wang Liming, the country's most prominent civil law scholar and a member of China's legislature, is playing a central role in the drafting of the new Tort Law. Professor Wang was a visiting scholar at The China Law Center for several months last fall. About thirty Chinese participants attended the workshop--including officials from the National People's Conference and others who oversee media regulation.

"The role of the media is still very sensitive in China," said Center Director and YLS Professor Paul Gewirtz, "but tort law provides a relatively technical legal forum in which to discuss important values, including the role of the media in society and the value of free expression." Joining Professor Gewirtz and Center staff in the workshop were American experts on media freedom and tort law, including celebrated New York Times columnist Anthony Lewis, YLS Professor Robert Post, Judge Robert Sweet (YLS '48), Professor Kenneth Abraham (YLS '70) from the University of Virginia, and Professor Michael Chesterman, Australia's leading defamation law expert.

One of the most important issues facing drafters of the Tort Law is how to frame provisions on defamation to balance protection of reputation and privacy with the values of freedom of expression and speech. Memories of the Cultural Revolution, a period of chaos marked in particular by the use of extreme forms of public criticism and violence directed at individuals, are strong, and China's constitution now protects citizens' right to reputation. The new law will codify the last fifteen years of judicial practice, and may include explicit provisions on "media torts" and protection for media criticism of official government acts. Yet these issues remain extremely sensitive, and some in China argue the new Tort Law ought to steer clear of explicit recognition of the media's role.

The two-day workshop included frank debate about the difficulties facing journalists who write articles critical of government officials. Two prominent Chinese lawyers who represent journalists offered concrete examples of the challenges they face. The U.S. participants focused on the positive roles that the media can play in society, and emphasized the need for sufficient "breathing space" to criticize government policy and official acts. Chinese scholars, who generally support expansion of the media's role, used the workshop as an opportunity to argue before the officials who are writing the new law.

Restrictions on the media in China are still substantial, and critical articles can often land journalists in far more serious trouble than a civil suit. Yet Center Senior Fellow Jeffrey Prescott (YLS '97) argues that this makes the debate over the Tort Law that much more important. "There is unlikely to be specific legislation protecting the media in China anytime soon," noted Prescott, who is based in Beijing. "Our judgment is that reshaping defamation law may be one of the few areas where it may be practically possible to improve the legal protection of the media in China."

Professor Gewirtz, Center staff, and the U.S. expert group also met in Beijing with senior officials of China's legislature in a private dinner at the Great Hall in Beijing. The workshop and meetings are part of the Center's ongoing project on constitutional law reform, which includes issues of free expression and free speech. Last year, the Center held a high-profile conference on public opinion and the role of the media at Beijing's Tsinghua University. Later this year, the Center is planning a workshop with Peking University on constitutional review as well as a series of high-level visits by U.S. judges and scholars to discuss free speech with Chinese officials and scholars.