Tuesday, December 8, 2015

Translation: Appellate Judgment in the Kong Qingdong v Nanjing Radio and Television Group Defamation Case

Appellate Judgment
Kong Qingdong v Nanjing Radio and Television Group (Nanjing Radio and Television) et. al.
Right to Reputation Dispute

Beijing No. 1 Intermediate People's Court
(2015) First Intermediate Civil No. 02203

Appellant (formerly Plaintiff) Kong Qingdong, Male, Born September 22, 1964.

Appellee (formerly Defendant) Nanjing Radio and Television Group (Nanjing Radio and Television), #338 Long Pan Road, Nanjing, Jiangsu.

Appellee (formerly Defendant) Wu Xiaoping, Male, Born January 27, 1955.

Appellant Kong Qingdong filled an appeal with this court because he did not agree with the Beijing Haidian District People's Court civil judgment (2014) Hai Civil First Instance No. 26881 relating to a case of right to reputation. This court formed a collegiate panel to hear the case. Hearing in this case of concluded.

In the court of first instance Kong Qingdong claimed: On May 11, 2013, in a report entitled "Is Beijing University Professor Kong Qingdong a Professor or a Beast," Wu Xiaoping, host of the Nanjing Radio and Television Group (hereinafter NRTG) channel 18 program "Listen to Me Shao Shao," offered commentary on a lawsuit filed by Kong Qingdong, during which Wu used insulting language to attack and derogate Kong Qingdong such as "professor or beast," and Kong Qingdong's reputation is "based entirely upon cursing others." NRTG simultaneously broadcast the program online, and the video remains available on the NRTG website, and people continue to click and view it. The actions of NRTG and Wu Xiaoping severely damaged Kong Qingdong's right to reputation. The lawsuit asked the court to order NRTG and Wu Xiaoping to:

1. immediately cease their violations and take steps to alleviate their impact;
2. make a public apology; and
3. pay 200,000 yuan in compensation for the plaintiff's economic losses.

In the court of first instance NRTG responded: Wu Xiaoping's commentary was in the nature of a professional activity, and if there was any infringement, then the responsibility should be borne by NRTG. Wu Xiaoping's commentary was offered in the spirit of objectivity and impartiality, and merely raised doubts that Kong Qingdong's behavior was appropriate for a professor at Beijing University, and this does not constitute an infringement of his rights. It asked the court to reject the relief requested by Kong Qingdong in his lawsuit.

In the court of first instance Wu Xiaoping responded: When hosting the program his commentary on the  plaintiff was relative objective, and there was no accusatory language, nor did it derogate Kong Qingdong, and it did not constitue an infringement of his rights. He asked the court to reject the relief requested by Kong Qingdong in his lawsuit.

The inquiry of the court of first instance determined: Kong Qingdong is a professor at Beijing University, and in recent years has triggered more than a few disputes owing to cursing people with "bursts of foul language" and other incidents.  Wu Xiaoping is the host of the "Listen to Me Shao Shao" program on NRTG channel 18.

On May 11, 2013, during NRTG's channel 18 program "Listen to Me Shao Shao," host Wu Xiaoping did, while making his report, use as a lead-in a report from the Yangzi Evening News entitled "Beijing University Professor Ordered to Apologize for Calling Someone a 'Traitorous Dog' on Weibo." In doing so he made commentary on and reflected upon various aspects of the incident including current status  intellectual's words and deeds, personal cultivation, and China's higher education. During the program Wu Xiaoping said:
Lend Old Wu your ear for moment. In today's "Yangzi Evening News" there a report entitled "Beijing University Professor Ordered to Apologize for Calling Someone a 'Traitorous Dog' on Weibo." Today when I read this news I found it quite interesting. To start with there's a Beijing University professor named Kong Qingdong, and once again he's cursing someone. Why say that he's once again cursing someone? Because, to be frank, this Kong Qindong person is really famous. The entire reason that he has any sort of national notoriety is a product of his cursing people. Because his cursing someone is not just a one-off thing. To say that Kong Qingdong curses people, when I just did a quick scan of Weibo, all you see is multiple instances where he is cursing journalists. . . . but the coarseness of his speech is so beyond the pale . . . . the way he is cursing people this time. He says what you say is irrelevant, that you're traitorous dog, and he says this publicly on Weibo. . . . Recently Kong Qingdong wrote a poem . . . . it was called "The Summer That Follows the Spring" . . . . He made a minor linguistic mistake, and so this Internet user pointed it out to him, said sorry, you've got a mistake in there, you can't even get these basic forms right, and it seems like you didn't even make proper use of the rhyme and meter. And just for saying this, which was entirely intended as academic critique, he goes off and curses the guy, telling him he's completely off base, and he's a traitorous dog. What kind of example of a model teacher are you setting here? So what's the first thing Old Wu wants to bend your ear with today? If a professor is a beast, then what is he - a professor or a beast? While Old Wu is bending your ear, I have to laugh, in our nation's culture a professor holds a somewhat vaulted position, and one should say that we hold professor in relatively high esteem. So for a professor, having such exalted status, to curse so obscenely - would you say he is in fact a professor or a beast? Students a learning academic inquiry from him, while he spits invective at people, saying you're a traitorous dog, you don't know what the hell you're talking about, is what you're saying here clearly cursing others? . . . . But there are two terms that I'm particularly interested in here, one is 'Beijing University' and one is 'professor' . . . . What would you say the problem is if senior professors at a leading academic institution are hurling obscenities as us little folk? So Old Wu immediately starts thinking about our dear Beijing University, or great Beijing University, and the glorious history of our Beijing University. Cai Yuanpei was a dean . . . . if he were to wake up and see the generations that have followed, or see that in his school there has appeared someone who curses others like this - and a professor no less, would you say he would find it hard to bear, that he could rest in peace? Speaking of Cai Yuanpei, let's talk about another Beijing University dean . . . . Ma Yinchu . . . also an upright character . . . . So we have to think about the fact that the Beijing University deans of yesteryear were of such upright characters, such liberal academics, why is that when we come to the current generation, with its scientific development and scientific achievements, and still this kind of a professor appears on the Beijing University campus. It strikes one as inconceivable. And whatever kind of teacher you have, that's the kind of student you'll get . . . . It make me think of how so many of our cadres today . . . . they're all graduates of Beijing University and  Tsinghua University, but as for the character of some of these cadres, if you compare them with this Kong Qingdong, I personally feel you'll be looking at different approaches leading to the same result. . . . we have to rethink how we view public officials. . . .
This program was simultaneously posted on the NRTG website (www.nbs.cn), and based on an examination performed during a hearing, it is still up and may be clicked on and viewed by Internet users, with the title "Old Wu: Is Beijing University Professor Kong Qingdong a Professor or a Beast?" An investigation of the ICP registration information shows that the sponsor of this website is NRTG.

Notarization Document (2013) Jingfangzhengneimin No. 20788 shows: On July 19, 2013, utilizing Baidu to search for "Listen to Me Shao Shao Kong Qingdong," one could locate a video on the Youkou website entitled "Famous Nanjing Media Commentator: Kong Qingdong is a Beast! Unsuited to Be a Beijing U. Professor!" It took excerpts from the NRTG channel 18 program "List to me Shao Shao" showing the host Wu Xiaoping hosting the program on May 11, 2015, but the Listen to Me Shao Shao program did not itself have that kind of title, and it was added by the poster of the video.

NRTG stated that Wu Xiaoping's hosting and commentary were in the nature of a professional activity, and if there was infringement caused, then the responsibility should be borne by the employer. But the language forming the overall analyses in the commentary interspersed throughout the program did not constitute infringement. Kong Qingdong disagrees, and believes that NRTG and Wu Xiaoping should bear joint liability in tort.

The foregoing facts are supported by notarized documents, print outs of web pages, recordings, the testimony of witnesses, hearing records, and other evidentiary materials.

In its judgment the court of first instance held: During the "Listen to Me Shao Shao" program, Wu Xiaoping used as a lead-in a report from the Yangzi Evening News entitled "Beijing University Professor Ordered to Apologize for Calling Someone a 'Traitorous Dog' on Weibo," and made commentary based on a reading of that report. The incident in the Yangzi Evening News report actually occurred, and therefore the only point of dispute in the case was to determine whether Wu Xiaoping's commentary on the incident constituted an insult of Kong Qingdong which in turn constituted an infringement of his right to reputation. "Listen to Me Shao Shao" is a television news commentary program, and by its nature it needs to aggregate those recent incidents, issues, and social phenomena that are particularly newsworthy and worthy of comment, and undertake comment and analysis, and offer opinions and approaches. The particular nature of this kind of television format allows commentators to touch upon difficult personal and social matters when offering their critiques, and what they have to say is often things that others do not want to hear, and they will use certain derogatory language and phrasing to admonish present-day evils, fight for justice, and promote introspection and self-discipline. In addition, criticism will inevitably create feelings of mental frustration, or even pain and suffering, on the part of the one being criticized, and can easily lead to disputes over the right to reputation. Nevertheless, news commentary has significant value in our society, and is an important channel for the expression of the public's opinion, the exchange of ideas, as well as the media's role in public opinion supervision. Given its unique value, there must be a certain degree of tolerance of news commentary, and caution must be used when determining whether infringement has occurred.

In this case, Kong Qingdong has clearly stated that he is accusing Wu Xiaoping of making two statements that he believes are tortious. One is "The entire reason that he has any sort of national notoriety is a product of his cursing people." The second is "So what's the first thing Old Wu wants to bend your ear with today? If a professor is a beast, then what is he - a professor or a beast?"

The court believed that there was an actual factual basis for Wu Xiaoping's commentary. The commentary's phrasing was targeted and sincere, and there is no evidence to prove that Wu Xiaoping was motivated by a malicious intent to harm Kong Qingdong's reputation or insult his character. With respect to news commentary, if there is an actual factual basis, and objectively there is an absence of malice to insult the character of a third party, then notwithstanding the presence of certain speech that, taken alone, could be characterized as aggressive or somewhat excessive in its phrasing, it must be given understanding and tolerance, and viewed as being with the scope of normal commentary.

In the particular case of Kong Qingdong who, as a Beijing University professor, has a certain social notoriety, and who in recent years has triggered much controversy in incidents involving cursing people, to the point where they have transformed into public incidents that have drawn the attention of the public, he should be deemed as an example of a public figure. Based on considerations of the public interest, the public should be permitted to raise reasonable questions, censures, and even strident criticisms, regarding the behavior of public figures, especially with regard to inappropriate behavior. In order to ensure that citizens and the media enjoy full freedom of speech when debating matters of public interest, one cannot simply believe that every mere expression of doubt or criticism must by its nature constitute an infringement of a public figure's right to reputation, unless at the time the speaker speaks there is clear malicious intent. Therefore, the legal protections for the personal interests of public figures must be subject to appropriate limitations, and public figures must have a certain degree of tolerance for the media's non-malicious criticisms and challenges.

In this case, as regards Wu Xiaoping's statement during the program that "The entire reason that he has any sort of national notoriety is a product of his cursing people," while this expression of the reasons for Kong Qingdong's notoriety is somewhat extreme, and inappropriately denies the academic accomplishments of Kong Qingdong, nevertheless Wu Xiaoping's appraisal was explained when he immediately followed this with "Because his cursing someone is not just a one-off thing." Analyzing the entire context, Wu Xiaoping came to his personal authentic opinion based on his examination of the relevant incidents of cursing people, and there is no indication of any malicious intent to insult or defame, and it is difficult to find this commentary infringed upon Kong Qingdong's right to reputation.

As regards the statement "a professor or a beast?" it adopts the format of question, and while it is relatively strident and harsh, nevertheless its meaning is to express a challenge, and is without malicious intent to insult. Looking at the content of the entire program and the foregoing statement in context, as well as analyzing the specific environment in which the statement occurred, the true meaning of the discourse is to express the belief that Kong Qingdong's vulgar cursing leaves one disappointed, and is not consistent with what one would expect from a professor at an institute of higher learning who should be a model for others, an upright character and liberal academic. This was therefore an expression of "deep love and profound respect" for the current state of ethnics in institutions of higher learning and higher eduction. 

Owing to the fact that a court of law determined that Kong Qingdong's cursing on Weibo was a tort and ordered him to make a formal apology, and because it would be difficult for newspapers and online media reports and broadcasts to avoid a negative appraisal, and as a result of the focus of Wu Xiaoping's commentary being not on Kong Qingdong individually, but rather on using this incident as the basis for commentary around issues relating to Beijing University as an institution of higher learning and higher education, the harm it did to the ability of teachers to act as models for others, and other topics relating to society and the public interest, it is therefore difficult to reach the conclusion that there was any malicious intent to insult Kong Qingdong's person on the basis of a comprehensive analysis and judgment of the manner, tone, and context.

Given that Kong Qingdong is a public figure, and in our society the more one is subject to social commentary the higher one's duty to show tolerance, the court believes that just because the words used when making news commentary are somewhat pejorative, they cannot be taken out of context and held to be insulting. The content of Wu Xiaoping's commentary did not rise to the level of being severely insulting, and does not constitute an infringement of the right to reputation.

Given that the court has not held that the Wu Xiaoping's speech during the program constitutes a tort, the court denies Kong Qingdong's request that NRTG and Wu Xiaoping cease their infringing behavior, publicly apologize, and make joint compensation for loses.

In summary, in accordance with Article 1 of the General Principles of the Civil Law of the People's Republic of China and Article 8 of the "Interpretation of the Supreme People's Court on Several Issues about the Trial of Cases Concerning the Right of Reputation," the plaintiff Kong Qingdong's demands for relief are rejected.

Kong Qingdong did not accept the judgment of the court of first instance, and appealed to this court. The appeal requested the following relief: overturn the lower court's judgment and issue a revised judgment in accordance with the law. The appeal's reasoning is as follows:

1. Appellee NRTG continues to display on its website the video under the title "Old Wu: Is Beijing University Professor Kong Qingdong a Professor or a Beast?", and this title has the quality of insulting speech used to curse someone, and itself constitutes the crime of infringement of the right to reputation.

2. Appellee undertook to comment on litigation involving the appellant without any additional investigation, and while he used the interrogative voice in emphasizing "a professor or a beast," this was tantamount to calling someone a beast.

3. Appellee said that the reason for appellant's notoriety was a result of his cursing others, and this comment constitutes defamation.

4. The lower court's determination that appellant is a public figure lacked a clear basis.

5. Even if he is a public figure, the right to reputation is protected by law, and he enjoys the right to not be subjected to insults.

6. There was a lack of overall fairness in the positions taken by the lower courts in this case and in Guan Kaiyuan's lawsuit against Kong Qingdong.

NRTG claims in its defense: the determination of facts in the lower court's judgment is clear, its interpretation of the law is correct, and should be upheld, and they do not agree with the claims and reasoning of Kong Qingdong's appeal. As a television host, it is Wu Xiaoping's duty and his job to make comments about social matters, and in this case Wu Xiaoping lacked the subjective purpose or intent to infringe upon Kong Qingdong's right to reputation. The expressions he used were subjective, fair, and therefore do not constitute an infringement of his right to reputation.

Wu Xiaoping claimed in his defense: he concurs with the lower court's judgment, and is of the same opinion as NRTG.

During the trial of second instance, NRTG and Wu Xiaoping submitted to this court materials from the Phoenix website and Baidu search to prove that until now there continues to be news and reports of Kong Qingdong cursing people. Kong Qingdong denies this.

Based on an investigation, this court hereby affirms the facts as determined by the lower court's examination of the evidence are true.

The aforementioned facts have also been supported by evidence from the statements of the parties during the trial of second instance.

This court finds: citizens' right to reputation is related to their sense of personal dignity, and protections afforded the right of reputation and other personal rights under the law are an expression of concern for each person's individuality. The media's rights of supervision and commentary that have been generally recognized represent an expression of the general welfare, and the protections afforded the media's freedoms to supervise and comment represent considerations arising out of the public interest. When the media exercises its rights to supervise and comment, even to criticize and question, it is inevitable that conflicts will arise between it and the individual rights of the objects of its criticisms and questions. Conflicts of rights must be reconciled by the law, and the crux of the reconciliation lies in an examination of whether the law deems distinct rights should be based on an equal appraisal and placed on the same level.

This court finds that today there seems to be no disputing the view that achieving the public interest is a higher aim than realizing personal interests. Therefore, when the media, in the course of expressing outrage over harmful social trends and reflects the public interest in upholding and venerating mainstream value systems, owing to its roll in the public welfare, when compared with value of individual interests, its protection must be given priority. This position of priority is embody in the principle that, absent the existence of false and malicious defamation, even where the expression in question may leave the victim feeling uncomfortable, there will be no liability in tort, and the victim must make allowances.

In this case, all of the statements made by the host Wu Xiaoping in the program "Listen to Me Shao Shao" centered on Kong Qingdong's inappropriate speech, and lead viewers to reflect upon that affair. Its content lacked malicious intent to derogate Kong Qingdong's right to reputation. On the contrary, its content was in accord with the beneficial goal of the interests of society. At the same time, the language adopted by Wu Xiaoping did not exceed the bounds of propriety. At first hearing, Wu Xiaoping's statement that "The entire reason that he [Kong Qingdong] has any sort of national notoriety is a product of his cursing people" seems intended to offend Kong Qingdong. But any evaluation of a public figure depends upon the values of the person doing the evaluating, and the bottom line for such evaluation lies in a prohibition on using malicious fabrication to intentionally defame. Wu Xiaoping's intent was to rethink and criticize, not to maliciously infringe on someone rights. Wu Xiaoping statement "a professor or a beast?" was, from its literal meaning and an analysis of the overall content of the program, precisely intended to use the term "beast" to express a view regarding Kong Qingdong's status as a famous professor, to allow the public to appreciate the irrationality as part of a public analytical discussion of a subject, and question whether the vulgar speech was consistent with his status. This is a strong expression of apprehension regarding teachers' ethical character and the current state of higher learning, and not a malicious violation of an individual's personal dignity. Where there is no malicious intent in either the content or the methodology, Kong Qingdong may feel "infringed upon," but he most nevertheless be tolerant.

This court finds no support for Kong Qingdong's belief that the lower court's decision regarding Guan Kaiyuan's lawsuit against Kong Qingdong is lacking in fairness given the position taken by the judgment in this case. The reason being that, the victim in that case was an ordinary citizen, and his rights are subject to the rigorous protection of the law, and no person may for any reason willfully insult his person.

To sum up, the examination conducted by the lower court into the whether there was an infringement of the right of reputation in the current case complied with the balancing of policies in the public interest indicated by law, and its determinations were appropriate and reasonable. Kong Qingdong's  grounds for appeal are lacking basis, and are rejected by this court. In accordance with the provisions of Article 170, Clause 1, Paragraph 1 of the Civil Litigation Law of the People's Republic of China, it is hereby held:

The appeal is denied, the original judgment is upheld.

The 1,100 yuan filing fee for the trial of first instance shall be borne by Kong Qingdong (already paid). The 1,100 yuan filing fee for the trial of second instance shall be borne by Kong Qingdong (already paid). This judgment shall be the final judgment.

Presiding Judge: Ding Yuxiang
Judge: Tang Ping
Acting Judge: Wang Guoqing
April 30, 2015
Clerk: Liu Yafan


日期: 2015-04-30法院: 北京市第一中级人民法院案号:(2015)一中民终字第02203号










本案中,孔庆东明确表示,其所指控认为吴晓平侵权的语言为两处,一是“他今天之所以在全国有一些名气,完全是靠骂人骂出来的”,二是“所以老吴今天第一个耳朵想挂什么呢?教授还是野兽,到底是教授还是野兽?”法院认为,吴晓平的评论依据的事实是真实的,评论的语句是有针对性的、有诚意的,并无相关证据证明吴晓平存在借机损害孔庆东名誉、进行人格侮辱的恶意。对于新闻评论而言,如果依据的事实是真实的,主观上不具有侮辱他人人格的恶意,即使在个别范畴内出现言辞激烈甚至稍有过激的语句,仍应予以理解与宽容,视为在正常的评论范畴之内。特别是孔庆东作为北大的教授,有一定社会知名度,近年来因为骂人事件引发不少争议,甚至形成了公众关心的公共事件,应属社会公众人物之列。基于公共利益的考虑,应允许相关公众对公众人物的行为特别是不当行为提出合理的质疑、指责甚至刺耳的批评,不能简单地认为仅是质疑和批评本身就构成侵犯公众人物的名誉权,除非发言人发表相关言论时具有明显的恶意,以保证公民和媒体在涉及公共事务、公共利益问题的辩论中享有充分的言论自由。因此,公众人物的人格利益在法律保护上应当适当克减,公众人物对于媒体不具恶意的批评、质疑亦应有一定的宽容度量。本案中,对于吴晓平节目中的“他今天之所以在全国有一些名气,完全是靠骂人骂出来的”一句,虽然表述孔庆东的知名原因有些绝对化,不当否定了孔庆东学术方面的成就,但吴晓平在后面紧跟“因为他骂人骂得也不止一回了”的评价得出相应解释,从前后文综合分析,应是吴晓平在查阅相关骂人事件后得出的个人真实意见,并不存在借机恶意侮辱、诽谤的情况,难以认定该句评论侵犯孔庆东的名誉权。对于“教授还是野兽?”一句,采用疑问句式,虽然用语比较刺耳刻薄,但意在提出质疑而非恶意侮辱,从该节目整体的内容和以上语句的前后文、具体语境进行分析,相关用语的真实含义是认为孔庆东粗俗的骂人行为令人失望,不符合人们对于著名高校教授应有的为人师表、铮铮铁骨、学术自由等期望,以此表达对于目前高校教师道德素养以及高等教育现状“爱之深,责之切”的心情。由于孔庆东在微博骂人事件被法院认定侵权并判决赔礼道歉后,因为报纸、网络等媒体的报道、传播,难免承受相关负面评价,且吴晓平评论的重点并非仅仅针对孔庆东个人,而是以该事件为评论基础,展开后面围绕北大高等学府、高等教育存在的问题、教师不能为人师表的危害等关涉社会公共利益话题的大段评论,从语气、语调、语境等方面综合分析、整体判断,难以认定其存在侮辱孔庆东人格的恶意。鉴于孔庆东作为公众人物,较社会一般人在承受社会舆论方面有较高容忍义务,法院认为不能因新闻评论时的个别用语本身存在一定的贬义,就断章取义认定构成侮辱,吴晓平的相关评论内容尚未达到侮辱的严重程度,不构成侵犯名誉权。鉴于法院未认定相关节目中吴晓平的相关言论构成侵权,对于孔庆东要求南京广电集团、吴晓平承担停止侵权、公开赔礼道歉、连带赔偿损失的诉讼请求,法院不予支持。综上所述,依照《中华人民共和国民法通则》第一百零一条  、《最高人民法院关于审理名誉权案件若干问题的解答》第八条  、第十条  判决:驳回原告孔庆东的全部诉讼请求。










综上所述,原审法院对本案名誉权是否侵犯的审查,符合法律对公共利益的政策考量,其所做评价适当合理。孔庆东的上诉理由不能成立,本院不予支持。依据《中华人民共和国民事诉讼法》第一百七十条  第一款  第(一)项  之规定,判决如下: