Constitutional Rights and Truth and Fair Comment Defences in Chinese Right to Reputation Lawsuits

Abstract

This paper examines the implications of a non-justiciable constitution on freedom of expression in China. It considers how the competing interests of the constitutional right to reputation and the right to freedom of expression are resolved in the application of two major defences — i.e., truth and fair comment — in defamation lawsuits, and the implications for protecting media freedom in China. Given that the Chinese Constitution itself is non-justiciable, the principles of balancing and proportionality are undeveloped in Chinese defamation law, and no approach of resolving the competing interests of constitutional rights has yet developed in Chinese legal theories, the proper balance between two rights in the Chinese context requires not only judicial reform but also the development of legal theories and judicial practices. For the media to effectively claim the ‘truth’ and ‘fair comment’ defences, consistent and clear guidance regarding the burden of proof and the standards of what constitutes the ‘basic’ truth and ‘fairness’ of comment is needed from China’s Supreme People’s Court. Chinese courts have held that the protection of confidential sources is a right of the individual source and have tested it against the plaintiff’s right to a fair trial. Courts may need to consider including public interest as an overriding element in deciding whether to disclose the identity of a confidential source.

Keywords: Freedom of Expression, Defamation, Media Law, Chinese Media Law, Human Rights, China