Tuesday, November 29, 2016

Court Upholds Jail Time for Statements Critical of the Dead Heroes of Wolf Tooth Mountain

As previously noted on this blog, on October 19, 2016, China's Supreme People's Court published a piece on its website entitled "People's Courts Come to the Defense of the 'Five Heroes of Wolf Tooth Mountain' and Other Model Cases Involving the Right of Human Dignity of Heroic Figures" (人民法院依法保护“狼牙山五壮士”等英雄人物人格权益典型案例).  That article explained why People’s Courts in Beijing had been correct in holding Hong Zhenkuai liable for defaming two dead soldiers. The defamation took place in two articles written by Hong and published in 2013 on the Caijing website and in the Yanhuang Chunqiu magazine. For more on this, see Supreme People's Court Website Explains Why Courts Found Author Guilty of Defaming Dead Heroes.

Those two articles questioned the official version of events that took place during World War II, which are summarized on the website of China’s State Council Information Office as follows:
In 1941, during the Sino-Japanese war, a group of five Communist soldiers were able to deceive the advancing Japanese army and drew them up to the slopes of Langya Mountain. The Japanese, thinking they were besieging the main army, lost valuable time and troops trying to eliminate them. When the five heroes ran out of bullets, they jumped off the cliffs. Three of them died but two could hang by a tree branch, survived and could recount the story. In the mean time, the Chinese main force could escape and regroup.
Hong’s impetus for writing those two articles appears to have been the detention of Zhang Guanghong (张广红) for posting the following on his Sina Weibo on August 27, 2013:
Teacher Yuan Tengfei was filming the movie of the screenplay "Five Heroes of Wolf Tooth Mountain, and when Mr. Geng went to the location to understand the situation, the locals said: These five were just a few straggling soldiers of the Eighth Road Army, and after they got here they wanted to eat and drink, and if you showed any reluctance they beat you. Because a few of them held guns, the locals didn't dare give offense. Afterwards some people came up with an idea, and secretly to the Japanese of their whereabouts. The Japanese then came along and surrounded them, and the locals intentionally steered the five to flee down a dead end path."
老师袁腾飞拍‘狼牙山五壮士’电影编剧,邢某去当地了解实情,村民说:这五人只不过是几个散兵游勇土八路,来村里后要吃要喝,稍不如意就打人。由于几人手上有枪,村民们也不敢惹。后来有人想出了个办法,偷偷地把他们的行踪告诉日本人。日本人就来围剿了。村民故意引5人绝路逃跑。
The day after Zhang posted this, the Guangzhou Public Security Bureau Yuexiu District Division detained him, and on August 30, 2013, it issued an order that Zhang would be subjected to seven days of administrative detention in accordance with the provisions of Articles 25(1) of the "Public Security Administrative Punishments Law of the People's Republic of China." That article provides:
Anyone who commits any of the following acts shall be detained for not less than 5 days but not more than 10 days, and may be concurrently fined 500 yuan. If the circumstances are relatively minor, they shall be detained 5 days or less or be fined not more than 500 yuan: 1. Intentionally disturbing public order by spreading any rumor, giving false information about the situation of any risk, epidemic disease or emergency, or by any other means . . . .
有下列行为之一的,处五日以上十日以下拘留,可以并处五百元以下罚款;情节较轻的,处五日以下拘留或者五百元以下罚款:(一)散布谣言,谎报险情、疫情、警情或者以其他方法故意扰乱公共秩序的;……。
At the time of his detention, several state sponsored media outlets reported on the matter. For example, on August 31, 2013, the state sponsored Southern Metropolitan Daily published an article in its print edition entitled “Yue Police: Internet User Detained for Defaming the Heroes of Wolf Tooth Mountain” (穗警方:网民污蔑狼牙山五壮士被拘). Some excerpts:
A search by a Southern Metro reporter indicated that this was not the first time this information had appeared online. As early as 2007, Internet users had already posted this information on Baidu’s PostBar forum, and this kind of information was posted many times thereafter, but the posters’ identities could not be confirmed.
南都记者搜索发现,这一信息并非首次出现在网络,早在2007年,就已经有网友在百度贴吧上发布过此消息,同样的消息此后又曾多次被发布,但发帖者的身份无法确认。
Similarly, on September 1, 2013, the state sponsored Beijing Youth Daily publishes an article in its print edition entitled “An Internet User in Guangzhou is Detained for Spreading Rumors About the “Five Heroes” (广州一网民涉嫌散布“五壮士”谣言被拘留). Some excerpts:
In March 1996, a news report entitled "Five Great Men, One Insignificant One - There Were Six Men at Wolf Tooth Mountain" caused a momentary stir, with the article outlining that there were six people doing battle on Wolf Tooth Mountain that year, with five jumping and one surrendering and being killed. The report was republished by quite a few newspapers and magazines.
On July 18, 2007, an Internet user posted an article on Baidu's PostBar forum entitled "The Truth About the Five Heroes of Wolf Tooth Mountain Who Plummeted to Death in Their Prime." Quite a few Internet users followed and responded trying to further understand this heretofore unknown "story."
On December 14, 2011, the author of a post on Baidu's PostBar forum entitled "Here is the Real Truth About the Five Heroes of Wolf Tooth Mountain!" wrote that "In 1985 I once followed a work team though the mountainous areas of Wolf Tooth Mountain in Guantou Village in Yi County for half a year doing a survey of the situation in the countryside. I was fortunate to hear an old man offer a different description of the story of the Five Heroes."
1996年3月,—篇名为《五人重于泰山,—人轻于鸿毛———狼牙山有六人》的通讯轰动—时,文中记述称当年狼牙山上作战的共有6人,5人跳崖、1人投敌被杀,这条通讯曾被不少报刊转载。
2OO7年7月18日,有网友在百度贴吧里发布名为《被吹得夭花乱坠的狼牙山五壮士的真相》的文章,不少网友跟帖回复试图进—步了解鲜为人知的“故事”。
2O11年12月14日,百度贴吧里—篇名为《狼牙山五壮士的真相原来是这样!》的帖子里作者写道:“1985年我曾随—个‘上山下乡’工作组在狼牙山所在地的易县管头乡做过半年的农村状况调查工作,有幸聆听了—位老先生对五壮士故事的另—种描述。”
After his release Zhang sued the Yuexiu District Public Security Bureau in the Guangzhou Yuexiu District People's Court demanding compensation for wrongfully imprisoning him. That court found in favor of the Yuexiu District Public Security Bureau.

Zhang filled an appeal with the Guangzhou Intermediate People's Court asserting the lower court committed errors of fact and law.

Errors of Fact:
  • The lower court made no attempt to determine whether or nor Zhang’s weibo post contained information that was false.
  • The Public Security Bureau provided no proof that Zhang’s weibo post actually caused an socially harmful effects.
  • The content Zhang posted did not originate with him, but rather the Appellant saw it on the weibo of "Teacher Yuan Tengfei.”
  • In posting the weibo Zhang did not have any intent to deliberately disturb public order.
Errors of Law:

Article 25 of the "Public Security Administrative Punishments Law” requires intent, and therefore the Public Security Bureau had the burden to demonstrate:
  • Zhang himself fabricated and spread rumors.
  • The rumor's content was shocking enough to trigger a public panic and cause chaos.
  • Zhang had an intent to disrupt public order.
On May 20, 2015, the Intermediate People’s Court rejected Zhang’s appeal saying:
The Appellee [Public Security Bureau] believed that the Appellant [Zhang] used the Internet to publish false stories about the "Five Heroes of Wolf Tooth Mountain" to distort the image of revolutionary martyrs, thereby causing harmful effects online, and that this constituted the act of spreading rumors and disturbing public order, and therefore imposing punishment in this case accorded with the aforementioned provisions.
被上诉人认为上诉人利用网络发布了虚构的“狼牙山五壮士”故事,歪曲革命烈士形象,在网络上造成了不良影响,构成散布谣言、扰乱公共秩序的行为,对其作出涉案处罚,符合上述规定。
Court Judgment: http://wenshu.court.gov.cn/content/content?DocID=56361ea5-4a0c-47d6-a112-21270b5dd4fb

Thursday, November 24, 2016

Supreme People's Court Website Explains Why Courts Found Author Guilty of Defaming Dead Heroes

On January 13, 2016, the state sponsored Global Times published an article entitled “Leftists and Rightists Battle Over How to Interpret Stories of China’s Revolutionary Past.” Some excerpts:
Last month, district courts in Beijing ruled against two former authors and editors of Yanhuang Chunqiu, an outspoken liberal political magazine on the right of the Chinese political spectrum, who filed two separate lawsuits against leftist scholars Guo Songmin and Mei Xinyu on charges of defamation.

The legal battle can be traced back to November 2013, when Yanhuang Chunqiu published an article by author and historian Hong Zhenkuai which pointed out several incongruities in the different accounts of the story of five famous Chinese revolutionary heroes. The story was edited by Huang Zhong. Both Hong and Huang are former managing editors of the magazine.
. . . .
This discussion infuriated some leftist scholars, who are often staunch defenders of China's revolutionary history. Guo and Mei railed against the article as an example of "historical nihilism."
. . . .
Gong Yun, a research fellow at the Academy of Marxism at the Chinese Academy of Social Sciences (CASS), defines historical nihilism as a political trend that denies the leadership of the CPC and Marxism by denying "people's history" and CPC history, according to an article he published.

Historical nihilism is not a new phrase, but has gained significant weight in the past three years, and in the last year in particular. It appeared 36 times in the People's Daily, flagship newspaper of the CPC, in 2015, for example, as opposed to single digit appearances in 2010, 2011 and 2012, according to the paper's website.
. . . .
Feng said historical nihilism has in recent years become a baton which leftists use to suppress liberal academics who are exploring historical truths. "Most of those who like to use the term have little understanding of the study of history, and very few are historians. How can they criticize without an understanding of history?"

Hong Zhenkuai, the historian, also questioned the idea of historical nihilism. "Historical study requires the search for and verification of truth. If the verification of truth should be labeled as 'historical nihilism,' then the study of history is pointless."

"The defendants are not able to cite a single mistake in my article. They used big terms, such as I'm a 'historical nihilist' and that I 'vilified heroes and martyrs,' but if you ask them to provide evidence, they don't have a single piece," Hong said on his Weibo.
Details of Hong Zhenkuai’s failed lawsuits and his removal from Yanhuang Chunqiu can be found on this blog here:
Even as Hong Zhenkuai (洪振快) was pursuing his own lawsuits against Guo and Mei for defaming him, the sons of two of the “Heroes” sued Hong for defaming their fathers. Ge Changsheng (葛长生) and Song Fubao (宋福宝), sons of Ge Zhenlin and Song Xueyi, filed separate suits in the Beijing Xicheng District People's Court against Hong in August 2015 on the grounds that he defamed that he defamed their fathers in two separate articles:
  • "Inconsistent Details in the 'Five Heroes of Wolf Tooth Mountain" (“狼牙山五壮士”的细节分歧) which was edited by Huang Zhong and written by Hong Zhenkuai and published in the 11th edition of 'Yanhuang Chunqiu' on November 8, 2013.
  • "There are Many Falsehoods in Elementary School Textbooks' 'Five Heroes of Wolf Tooth Mountain'" (小学课本“狼牙山五壮士”有多处不实) published by him on the Caijing website on September 9, 2013
Information about the “Details” article can be found on this blog here.

The following excerpts were specifically cited by the court in its judgment finding Hong guilty of defamation:

From the Caijing article:
According to a report in the August 31, 2013 edition of the "Southern Metropolitan Daily," on the evening of August 29 police in Yuexiu, Guangzhou, detained an Internet user and placed them in administrative detention for seven days for the crime of fabricating information and spreading rumors for "slandering the five heroes of wolf tooth mountain" on Sina Weibo. It is possible to trace the supposed "rumors" that "slandered the five heroes of wolf tooth mountain." According to media reports, the Internet user was reposting content from a December 14, 2011 post from Baidu's PostBar forum entitled "So This is the Truth About the Five Heroes of Wolf Tooth Mountain!" That post said that of the five heroes "three of the five were beaten to death at the scene, and afterwards the corpses were thrown off the cliff when the battle field was being cleaned up. The other two were captured alive, and it was only afterwards that for reasons unknown they again escaped from the Japanese clutches." 
据《南方都市报》2013年8月31日报道,广州越秀警方于8月29日晚间将一位在新浪微博上“污蔑狼牙山五壮士”的网民抓获,以虚构信息、散布谣言的罪名予以行政拘留7日。所谓“污蔑狼牙山五壮士”的“谣言”其来有自。据媒体报道,该网友实际上是传播了2011年12月14日百度贴吧里一篇名为《狼牙山五壮士真相原来是这样!》的帖子的内容,该帖子说五壮士“5个人中有3个是当场被打死的,后来清理战场把尸体丢下悬崖。另两个当场被活捉,只是后来不知道什么原因又从日本人手上逃了出来。”
From the Yanhuang Chunqiu article:
Once we dig deeply into the details of the accounts of the "Five Heroes of Wolf Tooth Mountain," we discover that the aforementioned participants did, at different times and different places, provide descriptions that contain many inconsistencies and contradictions. For the same incident there may exist several contradictory accounts that may not comport with the facts, or there may be one such account that does actually comport with the facts. But it is not possible that all such accounts can simultaneously comport with the facts.
当我们深入‘狼牙山五壮士’有关叙述的细节时,就发现上述人员在不同时间、不同场合下的陈述存在诸多相互矛盾之处。而对于同一件事,相互矛盾的描述可能都不符合事实,也可能有一个符合事实,但不可能同时都符合事实。

The impression given by the instructions and the "divine troops" is that the Five Heroes jumped from the a "lofty" or "200 meter" cliff on the summit of Qipantuo, that three of them ended up as pile of flesh and blood at the bottom of a gully "giving their lives for their country," while the other two were caught up in the trees "earning glorious injuries." This is the heart of the heroic story of the Five Heroes of Wolf Tooth Mountain. But according to the oral recounting of Ge Zhenlin published in the second section of the July 15, 1957 edition of "Red Flag Waving" the location they ultimately jumped from was not the summit of Qipantuo.
训令和《‘神兵’》给人造成的印象,是五壮士在棋盘陀顶峰跳下了‘万丈’或‘二十丈’的悬崖,三人在沟底成了‘三堆血肉’,‘壮烈殉国’,而两人‘给树枝挂在半空’,‘光荣负伤’,这也正是壮烈的狼牙山五壮士故事的核心所在。……可是按照1957年7月15日出版的《红旗飘飘》第2集刊出了葛振林的口述,最后跳崖的地方并不是在棋盘陀顶峰。

The core details of the "Five Heroes of Wolf Tooth Mountain" are the jump, and the orders and "divine troops” are not clear as to the details of the jump, . . . During the Cultural Revolution the Red Guards expressed doubts, and in fact in 1957 Ge Zhenlin's own personal recounting was published, and that also confirms the "sneaking away" version. . . . Afterwards, Ge Zhenlin also had a new version. According to Ge Zhenlin's recollections in "A Solomn Scene From the Wolf Tooth Mountain Leap," it would seem that there was no "sneaking away" after the jump, but rather some "scurrying" amongst the trees.
‘狼牙山五壮士’的核心情节是跳崖,训令和《‘神兵’》对跳崖的细节都不明确,……文革中红卫兵对此表示怀疑,……实际上,从1957年刊出的葛振林自己的口述中,也是可以印证‘溜’的说法。……后来,葛振林又有新的说法。根据在葛振林《狼牙山跳崖那悲壮的一幕》回忆,似乎跳下去后也不是‘溜’,而是在树间‘窜’。

Ge Zhenlin said: "Just now I was so busy fighting I wasn't aware of it, but now that I've taken a break I feel hungry and thirsty . . . . coincidentally there are some varieties of radishes in these mountains, and each person could not help but pluck and eat some. . . .
葛振林说:‘刚才忙着打仗倒不觉得,这会歇下来,才觉得又饿又渴……正巧山地里有些散种的萝卜,我们顾不得了,每人拔个吃着……。
On October 19, 2016, China's Supreme People's Court published a piece on its website entitled "People's Courts Come to the Defense of the 'Five Heroes of Wolf Tooth Mountain' and Other Model Cases Involving the Right of Human Dignity of Heroic Figures" (人民法院依法保护“狼牙山五壮士”等英雄人物人格权益典型案例).  That article summarized the courts’ finding that Hong was guilty of defamation as follows:
The Beijing Xicheng District People's Court held in the first instance judgment that, the battle of Wolf Tooth Mountain that took place on Yi County's Wolf Tooth Mountain has been proven by a large volume of evidence to be a famous battle. In this battle, the "Five Heroes of Wolf Tooth Mountain" the basic facts of the brave opposition to the enemy and the great spirit of dying for a just cause have won a high degree of acknowledgement and widespread praise of people of the entire nation, and this is the basis for the five heroes receiving the lofty reputation and honor as the "Five Heroes of Wolf Tooth Mountain."

According to the provisions of Article 2 of the "Tort Law of the People's Republic of China" and Article 3 of the "Supreme People's Court Explanation Regarding Certain Issues  Relating to the Determining Compensation Responsibility for Mental Suffering in Civil Infringement," following the death a person, the moral interests accrued during their lives will continue to receive legal protection. The "Details" article written by the defendant implicated Ge Zhenlin and Song Xueyi, the fathers of the plaintiffs. Ge Changsheng and Song Fubao both had the right to act as plaintiffs in this case and to bring a lawsuit for actions that infringed upon the reputation and honor of Ge Zhenlin and Song Xueyi.

The Beijing Xicheng District People's Court believed that Ge Zhenlin and Song Xueyi were representative figures of the those heroic figures that were the "Five Heroes of Wolf Tooth Mountain." The appellation "Five Heroes of Wolf Tooth Mountain" has won universal recognition by the entire military and the whole nation. Because that appellation is praise bestowed upon them by the sons and daughters of all Chinese people for resisting aggression, defending the homeland, and making enormous sacrifices, and is the personal reputation and honor that they deservedly earned.

Furthermore, the "Five Heroes of Wolf Tooth Mountain" were a heroic group that emerged during the during the Eighth Road Army's great struggle struggle to oppose Japanese imperialist aggression led by the Chinese Communist Party. There were a vehicle for the nationwide war of opposition and the final victory they obtain led by the Chinese Communist Party.

These heroic figures and their deeds, news of which spread far and wide, became during the  War of Resistance Against Japan one of the spiritual motivations for innumerable sons and daughters of China to oppose aggression and bravely resist the enemy. They became one source of the militaristic soul of the People's Army to defy death in defense of the interests and security of the nation. During peacetime, the spirit of the Five Heroes of Wolf Tooth Mountain remained a guiding spirit for China's public to stand up in the face of suffering, fear no hardship, and devote their lives to struggle for the people of the nation.

These heroic figures and their spirit have received the broad recognition of all peoples. They are the part of the collective memory of the Chinese people, a core part of the spirit of the Chinese people, and a major component of the socialist core value system. And whether one looks at China from the perspective of history or its current law, the peoples' memory and spirit and even the socialist core value system have become part of the public interest. Therefore, the article that Hong Zhenkuai wrote harmed not only  the individual reputation and honor of Ge Zhenlin and Song Xueyi, but also the public interest.

As for the question of whether the Articles at Issue in this case constituted an infringement, the court of first instance held that from start to finish the Articles at Issue failed to make a positive appraisal of the basic fact that during the battle the "Five Heroes of Wolf Tooth Mountain"  demonstrated courageous acts of heroic opposition to the enemy and a spirit of willingness to die for a just cause. Rather, by taking up main threads of examining details such as "where was the cliff they jumped off," "how did they jump off the cliff," "causalities on both sides," and "did the 'five heroes' pluck the masses' radishes," they cited as primary evidence materials and the statements made by parties from different time periods, even going so far as to cite statements Red Guards forced Song Xueyi to make during the Cultural Revolution. They completely ignored the vicissitudes of history, as well as the historical background and context of all the materials.

In a situation where sufficient evidence was lacking, in many places the Articles at Issue put forth baseless conjectures, suspicions, and even assessments. Therefore, even though the Articles at Issue contained no obviously insulting language, nevertheless by emphasizing details that bore little or no relationship to the basic facts, they lead readers to develop doubts about the collectively courageous acts of heroic opposition to the enemy and a spirit of willingness to die for a just cause of the heroic figures that were the "Five Heroes of Wolf Tooth Mountain." They denied the truth of basic facts, and lowered their heroic status and spiritual value.

The way that the defendant behaved bears the characteristics of damaging the rights to reputation and honor through means of criticism and defacement. The Articles at Issue were spread around the Internet and had a major impact throughout the country, not only damaging the individual reputation and honor of Ge Zhenlin and Song Xueyi and the feelings of the plaintiff, but to a certain extent they also harmed the nationalist and historical sympathies of the public. At the same time, because the spiritual values of the "Five Heroes of Wolf Tooth Mountain" have become internalized as a component of the nationalist spirit and the public interest, the Article at Issue also damaged the public interest.

As someone possessed of certain research capabilities and familiarity with the utilization of Internet tools, the defendant should have recognized and have been able to prevent the aforementioned results from occurring. To publish the Articles at Issue in spite of this was an obvious error.

As regards the defense of freedom of speech that Hong Zhenkuai proffered during the trial, the court of first instance held that academic freedom and freedom of speech a premised upon their not encroaching upon the legal rights and interests of third parties, the public interest, or the interests of the state. This is a common principle of freedom affirmed in our nation's Constitution, and delimits the boundaries of academic freedom and freedom of expression. Whenever any citizen exercises freedom of speech, academic freedom or any other freedom, they owe a legal duty to not exceed the boundaries of that freedom. This is a fundamental demand made on all citizens by countries and societies with rule of law, and is a social responsibility that every citizen should bear.

In this case, the nationalist sentiment that "Five Heroes of Wolf Tooth Mountain" and their heroic deeds have instilled and the nationalist spirit they have embodied in the historical memory are an important source and component of the core socialist values of contemporary China. Imbued with such massive spiritual value, they serve as an indispensable spiritual focal point of China as nation state.

Anything that harms the reputation of the "Five Heroes of Wolf Tooth Mountain," even if it were a harm directed at the dignity and reputation of Ge Zhenlin as the father of the plaintiff Ge Changsheng and Song Xueyi as the father of the plaintiff Song Fubao, would also be a harm directed at the spiritual values of the Chinese people.

They were free to conduct academic research and make statements, including carrying out research into certain details of the Battle of Wolf Tooth Mountain, provided that they did not harm the reputation and dignity of the "Five Heroes of Wolf Tooth Mountain and the public interest. But the defendants did not adopt this approach, and instead utilized so-called detailed research and going so far as to echo the slanderous rumors that Internet user Zhang Guanghong spread about the "Five Heroes of Wolf Tooth Mountain," to sow doubt about the fundamental fact that the five heroes bravely resisted the enemy and gave their lives for a just cause, thereby subverting the heroic image of the five heroes and lowering people's assessment of the five heroes' character.

The defendant's proffering freedom of expression as a defense of his tortious act of infringing upon the legal rights and interest of a third party and the public interest was therefore rejected.

Based on the foregoing, the court of first instance held: Hong Zhenkuai must immediately cease all actions infringing upon the reputation and dignity Ge Zhenlin and Song Xueyi, and within three days of the judgment issue a public notice of formal apology, make a formal apology to the plaintiffs, and eliminate all impact.

Hong Zhenkuai did not accept either first instance judgment and filed an appeal maintaining the court of first instance committed errors in its determination of the facts of the Battle of Wolf Tooth Mountain. He believed that what the court of first instance held to be a "public interest" was not in fact the interest of the state, the nation, and the general public, but rather was the interest of the descendants of the "Five Heroes of Wolf Tooth Mountain," other individuals with vested interests, and the Chinese Communist Party. He asked that the judgment be vacated and the requests made in the plaintiffs' lawsuit be denied.

Following a trial the Beijing Intermediate People's Court held that during the second instance phase Hong Zhenkuai maintained an obstinate position, and in his filings and publicly in court denied the basic fact that the "Five Heroes of Wolf Tooth Mountain" heroically opposed the enemy and gave their lives for a just cause. Hong Zhenkuai's self-indicting behavior is sufficiently explains how the court of first instance was correct in finding that Hong Zhenkuai drafted the articles by using so-called "detailed" investigations, lead readers to feel doubt about the brave achievements of the "Five Heroes of Wolf Tooth Mountain" in opposing the enemy and their spirit of giving their lives for a just cause, thereby denying the truth of basic facts and diminishing their heroic image and spiritual value.

The court of second instance held that the basic fact that the "Five Heroes of Wolf Tooth Mountain" heroically opposed the enemy and gave their lives for a just cause has already been proven by a large volume of historical facts and the evidence reviewed in the process of this trial. Hong Zhenkuai's doubts are lacking in any factual basis. These heroic figures and their spirit have received the broad recognition of all peoples, and have to form an important part of the spirit of the Chinese people, and are a part of society's public interest.

The Chinese Communist Party is the vanguard of China's people and the Chinese nation. It represents the common interests of people throughout the country and has no interests beyond those of the nation and its people. By increasing the notoriety of the deeds and spirit of the "Five Heroes of Wolf Tooth Mountain" the Chinese Communist Party is expressing the interests of the nation and its people. Therefore the court rejected Hong Zhenkuai's claim in his appeal that the spirit of the "Five Heroes of Wolf Tooth Mountain" was merely the interest of the descendants of the "Five Heroes of Wolf Tooth Mountain," other individuals with vested interests, and the Chinese Communist Party.

By denying the fact that the "Five Heroes of Wolf Tooth Mountain" bravely opposed the enemy and their spirit of giving their lives for a just cause, the Articles at Issue not only committed an infringement on the reputation and honor of the "Five Heroes of Wolf Tooth Mountain," but also harmed society's public interest in the reputation and honor of heroic figures.

Based on the foregoing, Hong Zhenkuai's appeal was rejected, and the judgment held: appeal denied, the original judgment is upheld. 
北京市西城区人民法院一审认为,1941年9月25日,在易县狼牙山发生的狼牙山战斗,是被大量事实证明的著名战斗。在这场战斗中,“狼牙山五壮士”英勇抗敌的基本事实和舍生取义的伟大精神,赢得了全国人民高度认同和广泛赞扬,是五壮士获得“狼牙山五壮士”崇高名誉和荣誉的基础。根据《中华人民共和国侵权责任法》第二条及《最高人民法院关于确定民事侵权精神损害赔偿责任若干问题的解释》第三条之规定,自然人死亡后,其生前人格利益仍然受法律保护。被告撰写的《细节》一文涉及到两原告的父亲葛振林和宋学义,葛长生、宋福宝均有权作为本案原告就侵害葛振林、宋学义名誉、荣誉的行为提起诉讼。

北京市西城区人民法院认为,葛振林、宋学义均是“狼牙山五壮士”这一系列英雄人物的代表人物,“狼牙山五壮士”这一称号在全军、全国人民中已经赢得了普遍的公众认同,这一称号,既是国家及公众对他们作为中华民族的优秀儿女在反抗侵略、保家卫国中作出巨大牺牲的褒奖,也是他们应当获得的个人名誉和个人荣誉。尤其是,“狼牙山五壮士”是中国共产党领导的八路军在抵抗日本帝国主义侵略伟大斗争中涌现出来的英雄群体,是中国共产党领导的全民抗战并取得最终胜利的重要事件载体。这一系列英雄人物及其事迹,经由广泛传播,在抗日战争时期,成为激励无数中华儿女反抗侵略、英勇抗敌的精神动力之一;成为人民军队誓死捍卫国家利益、保障国家安全的军魂来源之一;在和平年代,狼牙山五壮士的精神,仍然是我国公众树立不畏艰辛、不怕困难、为国为民奋斗终身的精神指引。这些英雄人物及其精神,已经获得全民族的广泛认同,是中华民族共同记忆的一部分,是中华民族精神的内核之一,也是社会主义核心价值观的重要内容。而民族的共同记忆、民族精神乃至社会主义核心价值观,无论是从我国的历史看,还是从现行法上看,都已经是社会公共利益的一部分。所以,洪振快撰写的文章侵害的不仅仅是葛振林、宋学义的个人名誉和荣誉,并且侵害的是社会公共利益。

关于案涉文章是否构成侵权的问题。一审法院认为,案涉文章对于“狼牙山五壮士”在战斗中所表现出的英勇抗敌的事迹和舍生取义的精神这一基本事实,自始至终未作出正面评价。而是以考证“在何处跳崖”、“跳崖是怎么跳的”、“敌我双方战斗伤亡”以及“‘五壮士’是否拔了群众的萝卜”等细节为主要线索,通过援引不同时期的材料、相关当事者不同时期的言论,甚至文革时期红卫兵迫害宋学义的言论为主要证据,全然不考虑历史的变迁、各个材料所形成的时代背景以及各个材料的语境。在无充分证据的情况下,案涉文章多处作出似是而非的推测、质疑乃至评价。因此,尽管案涉文章无明显侮辱性的语言,但通过强调与基本事实无关或者关联不大的细节,引导读者对“狼牙山五壮士”这一英雄人物群体英勇抗敌事迹和舍生取义精神产生质疑,从而否定基本事实的真实性,进而降低他们的英勇形象和精神价值。被告的行为方式符合以贬损、丑化的方式损害他人名誉和荣誉权益的特征。案涉文章经由互联网传播,在全国范围内产生了重大影响,不仅损害了葛振林和宋学义的个人名誉和荣誉、原告的个人感情,在一定范围和程度上伤害了社会公众的民族和历史情感,同时,在我国,由于“狼牙山五壮士”的精神价值已经内化为民族精神和社会公共利益的一部分,因此,也损害了社会公共利益。被告作为具有一定研究能力和熟练使用互联网工具的人,应该认识且有能力控制前述后果的发生,仍然发表案涉文章,显然具有过错。

对于洪振快在诉讼中以言论自由作为抗辩的问题。一审法院认为,学术自由、言论自由以不侵害他人合法权益、社会公共利益和国家利益为前提。这是我国宪法所确立的关于自由的一般原则,是为言论自由和学术自由所划定的边界。任何公民在行使言论自由、学术自由及其他自由时,都负有不得超过自由界限的法定义务。这是法治国家和法治社会对公民的基本要求,也是任何一个公民应当承担的社会责任。本案中,“狼牙山五壮士”及其事迹所凝聚的民族感情和历史记忆以及所展现的民族精神,是当代中国社会主义核心价值观的重要来源和组成部分,具有巨大的精神价值,也是我国作为一个民族国家所不可或缺的精神内核。对“狼牙山五壮士”名誉的损害,既是对原告葛长生之父葛振林、原告宋福宝之父宋学义的名誉、荣誉的损害,也是对中华民族的精神价值的损害。被告完全可以在不损害“狼牙山五壮士”名誉、荣誉和社会公共利益的前提下,自由地进行学术研究和自由发表言论,包括对狼牙山战斗的某些细节进行研究,但被告却未采用这种方式,而是通过所谓的细节研究,甚至与网民张广红对“狼牙山五壮士”的污蔑性谣言相呼应,质疑五壮士英勇抗敌、舍生取义的基本事实,颠覆五壮士的英勇形象,贬损、降低五壮士的人格评价。因此,被告以侵害他人合法权益和社会公共利益的言论自由,作为其侵权责任的抗辩理由,不予支持。

综上,一审法院判决:洪振快立即停止侵害葛振林、宋学义名誉、荣誉的行为;于判决后三日内公开发布赔礼道歉公告,向原告赔礼道歉、消除影响。

洪振快对两案一审判决不服,提起上诉,主张一审判决认定的狼牙山战斗事实存在错误;认为一审判决认定“公共利益”实际是“狼牙山五壮士”后人和相关既得利益者的利益,是中国共产党的利益,不是国家、民族和人民大众的利益等,请求撤销一审判决,驳回原告诉讼请求。

北京市第二中级人民法院经审理认为,在二审阶段,洪振快一改过去引而不发的手法,在上诉状和庭审中公开否认“狼牙山五壮士”英勇抗敌、舍生取义的基本事实。洪振快的自认足以说明,一审判决认定洪振快撰写文章的行为方式是通过所谓“细节”探究,引导读者对“狼牙山五壮士”英勇抗敌事迹和舍生取义精神产生质疑,从而否定基本事实的真实性,进而降低他们的英勇形象和精神价值,是正确的。二审法院认为,“狼牙山五壮士”英勇抗敌和舍生取义的基本事实,已被大量历史事实和本案审理过程中的证据所证明,洪振快的质疑缺乏事实依据。这些英雄人物及其精神,已经获得全民族的广泛认同,成为民族精神的重要组成部分,是社会公共利益的一部分,中国共产党是中国人民和中华民族的先锋队,代表全国人民的共同利益,没有脱离国家、民族利益之外的任何私利。中国共产党弘扬“狼牙山五壮士”的事迹和精神,体现的也是国家利益和民族利益。因此,洪振快上诉关于“狼牙山五壮士”精神仅仅是狼牙山五壮士后人和相关既得利益者的利益,是中国共产党的利益,不是公共利益的主张不能成立。案涉文章否认“狼牙山五壮士”英勇抗敌的事实和舍生取义的精神,不仅对“狼牙山五壮士”的名誉和荣誉构成侵害,同时构成了对英雄人物的名誉、荣誉所融入的社会公共利益的侵害。综上,洪振快的上诉请求不能成立,判决:驳回上诉,维持原判。
The article went on to explain why this was a “Model Case”:
There has occurred in recent years in our society all kinds of slanders, insults, and libels of heroic figures, derogating their image, defaming their reputations, and crippling their spiritual value. The lawsuits of Ge Changsheng and Song Fubao against Hong Zhenkuai for infringing on their right to reputation were a collective reaction to this phenomenon. In adjudicating these kinds of cases the people's courts faced certain difficulties, such as:

1. In a lawsuit protecting the reputation and honor of heroic figures, including those heroic figures who are no longer with us, it is necessary to determine the correct scope of who has standing to act as a plaintiff. This should be done according to current law and judicial interpretation.
2. The legal interests violated by this kind of tortious behavior are complex, because they implicate certain heroic events, historical circumstances, social consensus, and mainstream values, and therefore implicate the public interest. When adjudicating these kinds of cases, people's courts should take as their starting point a broad perspective in order to more comprehensively and correct grasp society's public interest and the forms in which it is expressed.
3. This kind of tortious behavior is diverse in its expression, often being embodied in academic essays and contending points of view. People's courts should use current law to get a practical grasp on the manner in which the right to reputation is being infringed.
4. The type of interests implicated in this kind of case is complex, implicating freedom of speech, academic freedom, and individual rights and interests. In these cases peoples' courts should be circumspect in grasping the need to safeguard individual rights and interests while also avoiding engaging in inappropriate interference in academic issues and the freedom of expression. They must draw reasonable lines among several interests.

The judgments in the lawsuits of Ge Changsheng and Song Fubao against Hong Zhenkuai appropriately addressed the four aforementioned issues. On the issue of determining the qualifications of the rights-holder and the plaintiff, in accordance with current law and judicial interpretation, they held that the immediate family of the heroic figures had standing in procedural law to qualify as plaintiffs and the right in substantive law to demand relief.

On the issue of identifying the rights and interests harmed by the tortious acts, they analyzed the historical facts that lead to the individuals acquiring the reputation and honors as "The Five Heroes of Wolf Tooth Mountain, and took as their basis the role this heroic group has played in this country's contemporary history, how their spirit has infused the collective memory and spirit of the people and the socialist value system. As such, they form part of society's public interest, and it is correct to recognize their interests as being protected by law.

On the issue of tortious liability, they analyzed the manner in which the articles were written, how materials were used, the subjective intent, and the harmful results they caused. In doing so they correctly applied the prerequisites for responsibility in tort.

On the issue of balancing interests, they conducted a comprehensive analysis of academic freedom, the freedom of speech, and the protection of rights and interests. The balancing of interests was done appropriately.

The judgment in these two cases defended the reputation and honor of heroic figures, and and safeguarded society's public interest.  
近年来社会上通过各种形式诋毁、侮辱、诽谤英雄人物,丑化英雄人物形象,贬损英雄人物名誉,削弱其精神价值的现象时有发生,葛长生、宋福宝分别诉洪振快名誉权侵权纠纷两个案件是这种现象的集中反映。人民法院在审理此类案件中的难点有:一是通过诉讼维护英雄人物包括已经不在世的英雄人物的名誉、荣誉,需要确定原告的范围,这应以现行法及司法解释为依归;二是此类侵权行为所侵害法益的复杂性,英雄人物的个人名誉、荣誉,往往与一定的英雄事件、历史背景、社会共识以及主流价值观相关,并由此与公共利益发生关联。人民法院审理此类案件,应从更为广阔的视野出发,更为全面、准确把握社会公共利益及其表现形态;三是此类侵权行为的表现形态更为多样化,经常表现为学术文章、观点争论等,人民法院应依据现行法更为实质性地把握名誉权侵权行为的表现方式;四是此类案件涉及的利益类型更为复杂,涉及到言论自由、学术自由和个人权益的关系,人民法院应在个案中审慎把握,既要保护个人权益,也要防止司法对学术问题、言论自由作出不当干预,要在多个利益之间合理界分。

葛长生、宋福宝分别诉洪振快两个案件的审判,妥当处理了上述四个问题。在确定权利人及原告资格问题上,以现行法及司法解释为依据,认定英雄人物的近亲属享有程序法上的原告主体资格和实体法上的请求权;在侵权行为侵害的法益识别上,分析了“狼牙山五壮士”获得个人名誉及荣誉的历史事实,并以这一英雄群体在我国当代史上发挥的作用为依据,将其精神归纳为民族的共同记忆、民族精神和社会主义价值观的一部分,因而构成了社会公共利益的一部分,法益识别准确;在侵权责任的构成上,分析了文章的写作方法、资料运用、主观目的以及所形成的损害后果,准确运用了侵权责任的构成要件;在利益衡量上,结合个案分析了学术自由、言论自由与权益保护的关系,利益平衡得当。两案的判决保护了英雄人物的名誉和荣誉,维护了社会公共利益。

Wednesday, November 16, 2016

Supreme People's Court Website: No Liability for Inappropriate Speech Directed at Historical Nihilists

On October 19, 2016, China's Supreme People's Court published a piece on its website entitled "People's Courts Come to the Defense of the 'Five Heroes of Wolf Tooth Mountain' and Other Model Cases Involving the Right of Human Dignity of Heroic Figures" (人民法院依法保护“狼牙山五壮士”等英雄人物人格权益典型案例). 

This blog previously summarized two of the four cases discussed in the article:
  • A Dispute Wherein Huang Zhong and Hong Zhenkuai Sue Mei Xinyu for Infringing Their Right to Reputation
  • A Dispute Wherein Huang Zhong and Hong Zhenkuai Sue Guo Songmin for Infringing Their Right to Reputation
See: Courts Hold Referring to Historical Nihilists as "Sons of Bitches" is Not Defamatory

The SPC website article began by going over the facts of each case, which are summarized here:
  • In its November 2013 edition the journal Yanhuang Chunqiu (炎黄春秋) published an article entitled “Inconsistent Details in the 'Five Heroes of Wolf Tooth Mountain” (狼牙山五壮士”的细节分歧). The article was authored by Hong Zhenkuai (洪振快) and edited by Huang Zhong (黄钟).
  • On November 23, 2013, Mei Xinyu (梅新育) posted the following statement on his verified Sina Weibo:
"What is motivating the editors and writers at 'Yanhuang Chunqiu'? Couldn't dig up a turnip to eat during a time of war? Is it too polite to say these kinds of writers and authors are sons of bitches?"
《炎黄春秋》的这些编辑和作者是些什么心肠啊?打仗的时候都不能拔个萝卜吃?说这样的作者和编辑属狗娘养的是不是太客气了?
  • The same day, Guo Songmin (郭松民) reposted Mei’s post and added the following comment on his verified Sina Weibo:
Oppose historical nihilism, if nothing is done about this gang of sons of bitches its a joke!
反对历史虚无主义,不动这帮狗娘养的就是笑话!
  • In March 2014, Huang and Hong sued Mei and Guo for defamation in separate lawsuits. Huang and Hong lost.
The SPC website article then provided the following explanations for why these cases were “model.”

Mei Xinyu
This case is a model case of infringement of the right to reputation arising from weibo statements evaluating a third party's article. What makes this case a model case is that the defendant's statements were evaluations and criticisms directed at an article by the plaintiffs regarding the historical heroic figures and historical events of the "Five Heroes of Wolf Tooth Mountain." Whether or not the defendant's statements exceeded necessary bounds of propriety and infringement upon their personal dignity implicates several factors such as:
  • the matters related in the article published by the plaintiffs;
  • the degree to which the plaintiffs could have foreseen the criticisms and assessments of third parties that the article they published would trigger, and the duty of tolerance that they should bear as a result;
  • the subjective circumstances under which the defendant published their statements;
  • whether or not the statements led to the public holding a lower opinion of the plaintiffs.
These are the major factors to be considered when determining whether the defendant's actions constitute an infringement, and are also the major and difficult issues in cases involving infringement of the right to reputation.

In this case, from the People's Court's analysis of the significant historical meaning of the historical figures and historical incidents implicated in the content of the plaintiff's article, it believed that the plaintiffs bore a relatively high duty of tolerance toward the statements triggered by the article, and relatively correctly defined the duty of care the plaintiffs bore for their own statements. Considering such aspects as the defendant's subjective motivation in publishing their statements and the targets of their criticism, as well as method by which those in the public who read their statements received information and made their assessments of the plaintiffs, the court held that while the defendant's statements were inappropriate, they did not constitute an infringement of rights. This was an accurate and comprehensive application of current law which balanced a party's freedom to act with the safeguarding of the legal rights and interests of others.
本案是微博言论评价他人文章所引发的名誉权侵权的典型案例。本案的典型之处在于,被告的言论,系对原告所发表的关于“狼牙山五壮士”这一历史英雄人物及其历史事件的文章作出的评价和批评。被告的言论是否超出必要的限度、其妥当性以及是否侵害他人人格,涉及到原告所发表文章涉及的事项、原告对于所发表文章所引发他人批评或评价的预见程度和应当负有的相应的容忍义务,以及被告所发表言论的主观状态、其言论是否导致原告社会评价降低等因素,均为被告是否构成侵权的重要考量因素,也是名誉权侵权案件中的重点和难点问题。本案中,人民法院从原告所发表文章的内容以及其涉及的历史人物及其历史事件的重大历史意义分析,认为原告对于该文所引发的言论具有较高的容忍义务,较为准确地界定了原告对于自己言论的注意义务;从被告发表言论的主观动机以及其言论所批评的对象、受众从其言论中获得信息的方式以及受众由此对原告所作出的社会评价等方面,认定被告并未构成侵权的同时,指出其言论亦有不当之处,在准确、全面适用现行法的同时,更是贯彻了侵权法平衡行为人的行为自由与保护他人合法权益的原则。
Guo Songmin
This case arose from the same article that triggered the case in which Huang Zhong and Hong Zhenkuai sued Mei Xinyu for infringing on their right to reputation. In this case, when the People's Court analyzed whether or not the defendant committed an infringement, it stressed that the people's heroes, heroic deeds and their spirit represented by the "Five Heroes of Wolf Tooth Mountain" have become an important component of the common historical memory of the Chinese people, as well as an important aspect of the Chinese sentiment and spiritual world. The article published by the plaintiffs casts doubts upon the public consensus and mainstream value system, and they should have foreseen the assessments that it would trigger, and they should bear a relatively high duty of tolerance. 

At the same time, the court also conducted a comprehensive evaluation of various facets including the overall new developments brought about by tolerance of statements on Internet media and the social media tools of the Internet era, as well as the subjective nature of, the cause-and-effect relationship of, and damages arising from, the defendant's statements.
本案与黄钟、洪振快诉梅新育名誉权侵权案系由同一文章所引发的关联案件。在本案中,人民法院在分析被告是否构成侵权时,强调以“狼牙山五壮士”为代表的民族英雄、英雄事迹以及其精神,已经成为中华民族共同历史记忆和中华民族感情及精神世界的重要内容。原告所发表文章对前述社会共识及主流价值观提出质疑,就应当预见到其可能引发的评价,亦应负有较高的注意义务。同时,结合网络媒体及互联网时代的社交媒体工具对言论容忍度带来的新变化,以及被告的言论在主观、因果关系以及损害后果方面等因素作出综合评价。应该说,这一判决准确把握了侵权法在互联网时代的新发展,妥当界分了对立言论之间的相互关系。

Monday, October 31, 2016

Man Jailed Five Days for "Misleading Subtitle" About Wugang Protests, Baidu Censors Social Media Posts About Wugang Protests

On October 24, 2106, the state sponsored Global Times published an article entitled “Police Detain Man for Spreading Wuhan Steel Firm Protest Rumor Online.” Some excerpts:
Police in Wuhan, capital of Central China's Hubei Province said Sunday they have detained a man for uploading a video claiming that lay-offs from the local steel giant had sparked a protest.

A viral video, uploaded by the man surnamed Rong, showed hundreds of people gathered in a street with a subtitle saying employees from Wuhan Iron and Steel (Group) Corporation (WISC) held a "procession," Changjiang Daily reported.

Police said they detained Rong for five days, and they've concluded that his subtitle was misleading, local police said on its Sina Weibo account on Sunday.
These screenshots show that on the same day the Global Times published the article, Baidu was censoring posts on its PostBar (Tieba 贴吧) and Knowledge (Zhidao 知道) forums.



 These screenshots show that on October 23, three of the top Baidu search results for “Wugang Demonstrations” (武钢 示威) were posts on Baidu Knowledge about Wugang protests. The following day all of the Baidu Knowledge posts have disappeared. However, the top result is a post on a forum on the China.com website entitled “Wugang Workers March Demonstrate Protest Company Low Price Buyouts Layoffs” (武钢工人游行示威抗议公司低价买断下岗).


Below is a screenshot showing the China.com post, which was still available as of October 30.

Sunday, October 30, 2016

State Media: “Xi As Core Affirmed by Public Opinion,” Baidu Censors “Xi” on Forums of Public Opinion

On October 28, 2016, the state sponsored Global Times published an article entitled “Xi as Core Long Affirmed by Public Opinion.” Some excerpts:
The Sixth Plenary Session of the 18th CPC Central Committee concluded on Thursday. For the first time "the CPC Central Committee with Comrade Xi Jinping as the core" was written into the communiqué. "Xi as the core" in fact has long been in the minds of the Chinese people and among public opinion.
. . . .
All Chinese know clearly that the Xi's leadership has played a critical role in the changes in China in the past four years and the significance of the word "core" being written into the Party document. The sixth plenum is themed on strict Party governance. This is what the Chinese people are willing to see.
These screenshots were taken on October 27, 2016, and show that users who searched for the single character “Xi“ (习 - Xi Jinping’s surname) on Baidu’s PostBar (Tieba 贴吧) forum are told “Apologies, in accordance with relevant laws, regulations, and policies, this forum cannot be opened at this time” (抱歉,根据相关法律法规和政策,本吧暂不开放). The same search on Baidu’s Knowledge (Zhidao 知道) forum and Wenku (文库) file sharing service yields no results.