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." 
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.

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.

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.

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. . . .
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. 






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.