Abstract
This article examines 223 recent defamation cases in China. Empirical
analysis of claims and outcomes reveals that defamation litigation
is developing on two tracks. Track-one cases are brought by public
officials, government and Communist Party entities, and corporations
to restrict and silence the increasingly autonomous Chinese media.
Track-two cases are brought by ordinary persons against the media
- which remain an arm of the Party-state. Conventional wisdom takes
track-one suits as the paradigm and perceives defamation litigation
in Chinese courts as yet another lever of state control over the
media. Such developments correspond to the use of defamation law
in other contemporary single-party states, and to the use of defamation
litigation to preserve state authority in western legal history.
Yet by ignoring track-two cases, this popular view shortchanges the
extent to which defamation litigation also facilitates ordinary persons
challenging state authority. The conventional wisdom also overlooks
the degree to which defamation litigation reflects growing use of
the formal legal system by local authorities to resist central Party-state
control.
The empirical findings in this article suggest that use of defamation
litigation by track-one plaintiffs for repressive purposes is encouraging
ordinary persons to use such cases to protect their own interests,
and courts to become increasingly important arbiters of individual
rights. Instrumental use of the courts by local elites is legitimizing
the role of courts in Chinese society. Defamation litigation serves
to intimidate and restrain the Chinese media, but such cases may
also increase official accountability. Defamation litigation in China
does not fit easily into western frameworks. Understanding the roles
defamation litigation is playing in China thus adds significant insight
into the nature of legal innovation and institutional development,
both in China and in other developing legal systems.
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