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Wednesday, December 7, 2016

Supreme People's Court Model Case: Joking About Dead Heroes Is Defamation

According to the China.org.cn website (which is operated under the auspices of China’s State Council Information Office):
In March 1951 [Qiu Shaoyun] (邱少云) joined the Chinese People's Volunteers Army to fight against U.S. in Korea. Part of a squad sent to ambush enemy forces near Kimhwa, on October 11, 1952, Qiu Shaoyun edged close to the enemy defenses using grass and twigs as camouflage. At noon the enemy threw a fire bomb that set fire to the grass near Qiu's position. Realizing that any sound or movement would give away the position of his comrades, Qiu endured the agonizing pain in silence and was burnt to death.

Thanks to his sacrifice, his squad won the ensuing battle.
Source: http://www.china.org.cn/china/60th_anniversary_people/2009-09/17/content_18547200.htm

According to the same website:
On March 13, 1988, a major forest fire broke out in Shimian County and [Lai Ning] (赖宁) and his classmates went to help with the fire-fighting efforts. The students were passing a still-smoldering area of forest on the way home that evening when a gust of wind rekindled the flames. Lai, who was at the back of the group was caught in the blaze and died.
Source: http://www.china.org.cn/china/60th_anniversary_people/2009-09/17/content_18547259.htm


On May 22, 2013, Sun Jie (孙杰) posted the following on his "Exercise Book" (Zuoyeben - 作业本) Sina Weibo account :
Because Qiu Shaoyun lay on a bonfire without moving, in the end the restaurant customers refused to pay the bill for something only cooked on one side. They all said that Lai Ning's barbecue was better.
由于邱少云趴在火堆里一动不动最终食客们拒绝为半面熟买单,他们纷纷表示还是赖宁的烤肉较好
Sun was well known blogger on Sina Weibo (known in Chinese parlance as a “Big V,” and at the time of the post he had over 6,030,000 followers. Before being deleted the following day, Sun’s post was reposted 662 times, liked 78 times, and commented on 884 times.

In April, 2015, beverage maker Jia Duo Bao (加多宝) was holding an "appreciation" event at its "Jia Duo Bao Cold Tea 2014 Sales Team Awards" it posted over 300 "Thank You" posters on the "Jia Duo Bao Campaign" weibo, thanking others including the news media, commercial partners, consumers, and certain famous figures, including Sun. Jia Duo Bao’s “Thank You” to Sun was posted on April 16 and read as follows:
Many thanks @ExerciseBook, congratulations on the popularity of your barbecue. As makers of cold tea, we support you becoming the CEO of a barbecue stand, 100,000 bottles to open shop, walk the talk ^_^#ManyThanksCampaign#.
多谢@作业本,恭喜你与烧烤齐名。作为凉茶,我们力挺你成为烧烤摊CEO,开店十万罐,说到做到^_^#多谢行动#
That same day Sun posted a public response on his "Exercise Book" account:
Many thanks for the 100,000 bottles, I will certainly open the barbecue shop, only I haven't fixed which day. But regardless, everyone who leaves a message here will get a free drink when they enter the store!!!
多谢你这十万罐,我一定会开烧烤店,只是没定哪天,反正在此留言者,进店就是免费喝!!!
According to the state sponsored Global Times, Jia Duo Bao posted an apology on April 17 and Sun posted an apology on his “Exercise Book” account on April 25.

In June 2015, Qiu Shaoyun’s brother Qiu Shaohua (邱少华) filed separate lawsuits against Sun and Jia Duo Bao in the Beijing Daxing District People's Court claiming that Sun’s post insulted and defamed Qiu Shaoyun, and that Jia Duo Bao “violated social ethics in debasing the image of martyr by in a vulgar marketing campaign, thereby having an extremely malicious impact on society.” He asked that the two defendants be ordered to immediately cease and desist, eliminate all impact, formally apologize, and pay 1 yuan in mental suffering.

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). The Supreme People’s Court summarized the outcome of the lawsuits as follows:
In the first instance judgment the Beijing Daxing District People's Court held that, according to the provisions of Article 2 of the "Tort Law of the People's Republic of China" and Article 69 of the "Supreme People's Court Explanation Regarding Applying the 'Civil Procedure 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," the interest in personal dignity that the martyr Qiu Shaoyun accrued during his life will continue to receive legal protection. As a close relative of Qiu Shaoyun, Que Shaohua had the right to file a lawsuit. the statements published by Sun Jie equated "the martyr Qiu Shaoyun bravely sacrificing his life on the fire" to "barbecue only cooked on one side," and this derogated and insulted the personal dignity of the martyr Qiu Shaoyun. This constituted an intentional tort, and as the statements were rapidly spread through a public Internet platform, it created a severe social impact, simultaneously damaging the public's nationalist and historical sentiments and harming the public interest. It also caused emotional harm to the relatives of the martyr Qiu Shaoyun.

Although the infringing statements published by Sun Jie in the original weibo text have already been deleted and Sun Jie apologized through a weibo, nevertheless the infringing statements had already been widely reposted through weibo, and had spread broadly online, creating a severe social impact. Therefore, he should make a formal public apology in a national media publication to eliminate the harmful social influence caused by the infringing statements.

Jia Duo Bao’s statements issue in this case were objectively made in relation to the infringing statements made by Sun Jie and were spread rapidly, causing a relatively significant negative impact. Subjectively, Jia Duo Bao had a duty of care to be cautious in planning their commercial campaign, and should have, but failed to, screened out Sun Jie's somewhat influential and inappropriate statements. In this they were at fault and therefore should bear responsibility in tort.

However, because Sun Jie and Jia Duo Bao proactively deleted the original statements, and therefore could only eliminate the impact of the consequences caused by their infringement by formally apologizing and eliminating the influence. It was held: Sun Jie and Jia Duo Bao shall publicly issue a notice of formal apology within three days of the judgment becoming effective, said notice to be published for five days. Sun Jie and Jia Duo Bao shall bear joint liability to compensate Qiu Shaohua for one yuan for emotional suffering. After the first instance judgment neither party appealed. 
北京市大兴区人民法院一审认为,根据《中华人民共和国侵权责任法》第三条、《最高人民法院关于适用<中华人民共和国民事诉讼法>的解释》第六十九条以及《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,邱少云烈士生前的人格利益仍受法律保护,邱少华作为邱少云的近亲属,有权提起本案诉讼。孙杰发表的言论将“邱少云烈士在烈火中英勇献身”比作“半边熟的烤肉”,是对邱少云烈士的人格贬损和侮辱,属于故意的侵权行为,且该言论通过公众网络平台快速传播,已经造成了严重的社会影响,伤害了社会公众的民族和历史感情,同时损害了公共利益,也给邱少云烈士的亲属带来了精神伤害。虽然孙杰发表的侵权言论的原始微博文章已经删除且孙杰通过微博予以致歉,但侵权言论通过微博已经被大量转载,在网络上广泛流传,已经造成了严重的社会影响,因此,应在全国性媒体刊物上予以正式公开道歉,消除侵权言论造成的不良社会影响。加多宝公司发表的案涉言论在客观方面系与孙杰的侵权言论相互呼应且传播迅速,产生较大负面影响;主观上,加多宝公司在其策划的商业活动中应尽到审慎的注意义务,加多宝公司应当对孙杰发表的影响较大的不当言论进行审查而未审查,存有过错,因此,亦应承担侵权责任。但是,由于孙杰和加多宝公司已经主动删除原始侵权言论,因此只能通过赔礼道歉、消除影响的方式消除侵权所造成的后果,判决:孙杰、加多宝公司于判决生效后三日内公开发布赔礼道歉公告,公告须连续刊登五日;孙杰、加多宝公司连带赔偿邱少华精神损害抚慰金1元。一审判决后,双方当事人均未上诉。
The Supreme People’s Court website went on to explain why this was a “Model Case”:
This is a model case of malicious defamation and insult of a national hero and revolutionary martyr and harming their interests in personal dignity. What makes this case special is that first a famous Internet user maliciously insulted and defamed a national hero, and then a commercial company made use of the unlawful statements to maliciously drive up the efficacy of a commercial promotion. The combination of these two actions formed a single damaging outcome.

The judgment in this case is worthy of praise in the following ways: 
First, in its analysis of the infringing statements, it linked the context in which they were made to the publication and public reaction to them, and recognized that the infringing parties were objectively malicious and the harmful consequences.  
Second, in grasping collective infringement of multiple parties, it focused its analysis on the connections between the multiple statements and their interaction, correctly grasping the commonality between the subjective relationship among the parties and the harmful consequences.
Third, in terms of the nature of the liability, it recognized the joint liability between multiple infringing parties. 
Fourth, in terms of the form of the liability, based on the fact that the infringing parties had  deleted the infringing statements, it held they bore a responsibility to formally apologize and provide compensation for emotional suffering, and this form of liability was appropriate.

This judgment safeguarded the legal rights and interests of a national hero and revolutionary martyr, and serves as a clear warning that it is a tortious act to insult and defame the personal dignity of a national hero and revolutionary martyr and engage in malicious commercial speculation to obtain unlawful benefits. 
本案是恶意诋毁、侮辱民族英雄和革命先烈,侵害其人格利益的典型案件。本案的特点是,先有网络名人恶意侮辱、诋毁民族英雄,再有商业公司借助不法言论恶意炒作获得商业推广效果,两者行为的结合造成了同一损害后果。本案判决在如下方面值得赞同:一是对侵权言论的分析上,结合其语境及侵权言论的传播和舆论反应,认定侵权人的主观恶意和损害后果;二是对多个行为人共同侵权的把握上,注意分析多个言论的关联性及互动性,准确把握多个行为人的主观关联性及损害后果的同一性;三是在责任形态上,认定多个侵权人之间的连带责任;四是在责任方式上,根据侵权人事后删除侵权言论的事实,判决其承担赔礼道歉、消除影响和精神损害抚慰金的责任,责任形式妥当。这一判决,维护了民族英雄和革命先烈的合法权益,对于以侮辱、诋毁民族英雄和革命先烈的人格为手段,恶意商业炒作获得不法利益的侵权行为,具有鲜明的警示意义。