[6] Part Three: Lawyer's Rights Defense Bravely Challenges the Legal Affairs Office

5. The second-instance judgment is grossly erroneous.

The first-instance Civil Judgment was dated July 6, 2012, but was not served to the parties until October of that year. Attorney Wang Tengfeng believed that the first-instance judgment "deliberately omitted and distorted important facts of infringement" and intentionally "absolved the Shenzhen Municipal Government Legal Affairs Office, a government agency, of liability for fault," on the grounds that a large amount of evidence had been submitted to fully prove that the Legal Affairs Office, in the process of "performing its duties," had clearly coerced the Southern Daily to publish an infringing press release. Moreover, during the trial, the Southern Daily had repeatedly testified to being severely coerced and forced by the Legal Affairs Office. Additionally, the first-instance judgment erred in not supporting the plaintiff's claim for moral damages. Accordingly, Attorney Wang Tengfeng filed an appeal with the Shenzhen Intermediate People's Court on October 29, 2012.

The Southern Daily, which had initially been perfunctory in the first-instance proceedings, seeking only to protect itself and avoid offending either the plaintiff, Attorney Wang Tengfeng, or the defendant, the Shenzhen Municipal Government Legal Affairs Office, now felt greatly wronged by being held solely liable for infringement in the first-instance judgment. On October 30, 2012, it also submitted a four-page appeal to the court, detailing four grounds for appeal. It first emphasized that it had no subjective intent to infringe on Wang Tengfeng's personal reputation, and its actions did not constitute infringement of reputation rights. Finally, it argued that Wang Tengfeng's lawsuit only alleged that the content of Report 2 defamed his reputation, targeting Report 2, but the first-instance court used the inaccurate description in Report 1 as a lead, taking it out of context, to conclude that without Report 1 there would be no Report 2, and accordingly held that the Southern Daily must bear responsibility for the inaccuracy of Report 1 and the excessive scope of the correction in Report 2. Therefore, the first-instance court's judgment and factual findings exceeded the scope of Wang Tengfeng's lawsuit. The Southern Daily's second and third grounds for appeal concerned the core issues of the case, and the original text is excerpted as follows:

2. The first-instance people's court's finding that the appellant failed to strictly review and verify the form and content of Report 2, and thus failed to fulfill its duty of care, is clearly erroneous.误的。

The Southern Daily's report, "Shenzhen Municipal Government Legal Advisor: The 'Sea Palace' Case May Be Winnable," contained inaccuracies in describing the appellee, Wang Tengfeng, as a legal advisor to the Shenzhen Municipal Government. When the Shenzhen Municipal Government Legal Affairs Office requested the Southern Daily to issue a correction, the Southern Daily reporter Guo Biao reviewed the Legal Affairs Office's press release, found that the correction had an excessive scope and inappropriate form, and contacted the Legal Affairs Office to request a different correction method or to use Wang Tengfeng's own draft for correction. However, the Legal Affairs Office insisted on publishing its press release as provided, and the appellee, Wang Tengfeng, was also aware of this matter. Moreover, Wang Tengfeng had also negotiated with the Legal Affairs Office regarding the content and form of the correction. These facts were already examined during the first-instance trial, and the appellant submitted relevant evidence. Therefore, the Futian District People's Court's finding that the appellant did not review and verify the form and content of Report 2 is clearly inconsistent with the facts. The appellant had fulfilled its duty of review and verification. Regarding whether to publish the Legal Affairs Office's press release as provided, the appellant also raised objections, and the appellee, Wang Tengfeng, also raised objections. The appellant published it only under the strong demand of the Legal Affairs Office. The court's statement that the appellant did not fulfill its duty of review is inaccurate.

3. The first-instance court, having found that "the Legal Affairs Office, as the functional department responsible for government legal advisory work, requesting the defendant, the Southern Daily, to issue a correction to mitigate negative impact, was a legitimate act in performing its duties and exercising its powers, and was not unlawful," also found that "Report 2, in terms of title, content, length, font, and other forms, more prominently highlighted the plaintiff's name and personal identity, exceeding the appropriate form and content necessary to correct the error in the plaintiff's identity description in Report 1," which constitutes a logical error.

Report 2 was published based on the press release issued by the Legislative Affairs Office of the Shenzhen Municipal Government. If the relevant content of Report 2 exceeded the appropriate form and content necessary to correct the error in describing the plaintiff's identity in Report 1, then it would be the "form and content" of the press release from the Shenzhen Municipal Government's Legislative Affairs Office that exceeded what was needed to correct the identity description error in Report 1. This means the issue lies with the document from the Shenzhen Municipal Government's Legislative Affairs Office. The appellant believes that if the first-instance court determined that Report 2 exceeded the scope of the error in Report 1, then the Shenzhen Municipal Government's Legislative Affairs Office should also bear corresponding legal responsibility. It is impossible for the news published based on the press release of the Shenzhen Municipal Government's Legislative Affairs Office to be considered a legitimate act of fulfilling duties and exercising rights by that office, while the appellant is deemed to have committed negligence in failing to conduct strict review.

The Shenzhen Intermediate People's Court accepted the appeals filed by Wang Tengfeng and Nanfang Daily under case number (2013) Shen Zhong Fa Min Zhong Zi No. 205, and conducted mediation and second-instance trial proceedings in the Tenth Courtroom of the Shenzhen Intermediate People's Court at 9:30 a.m. on March 15, 2013.

During the second-instance trial, Attorney Wang Tengfeng, in addition to the two reasons already stated in his Appeal Petition, emphasized and supplemented the following points: First, based on Nanfang Daily's appeal petition and the facts ascertained in the first-instance trial, it can be confirmed that the infringing report in question, both in content and form, was required by the Shenzhen Municipal Government's Legislative Affairs Office to be published by Nanfang Daily in the form of a press release. Second, newspapers typically use correction notices to rectify erroneous reports caused by their own work mistakes, whereas the infringing report in question adopted a reporting format, prominently featuring Wang Tengfeng's identity and position as the main focus, which completely deviates from conventional and reasonable practices. Third, the newspaper and the Legislative Affairs Office clearly had an intent to infringe. If the two infringers had decided to publish the infringing report without communicating with Wang Tengfeng, it could only be considered indirect reckless intent. However, in this case, after multiple rounds of communication and negotiation among the three parties, and despite Wang Tengfeng's strong opposition, the two infringers still published the report, which not only constitutes direct intent to infringe but also malicious infringement. Fourth, the most serious errors in the first-instance judgment are: first, deliberately omitting the fact that during the tripartite negotiation on the evening of April 13, 2011, Wang Tengfeng strongly opposed publishing the news report in the form of the Legislative Affairs Office's press release; second, deliberately omitting the fact that the Legislative Affairs Office forced Nanfang Daily to publish the infringing report in accordance with its press release format. These two deliberate omissions clearly show favoritism toward the Municipal Government's Legislative Affairs Office.

The trial opinions expressed by Nanfang Daily were the same as those in its Appeal Petition, as previously stated. The defense opinions of the Legislative Affairs Office were essentially that the first-instance judgment accurately found the facts and correctly applied the law, that it was merely exercising its duties and rights properly, and that it had not committed any infringing acts, which were largely similar to the defense opinions presented during the first-instance trial.

When facing cases where government departments are defendants, whether in administrative or civil litigation, the court's awkward position is similar. If mediation fails, the case is often delayed for a long time without a judgment. In this regard, the Shenzhen Intermediate People's Court was not much better than the Futian District People's Court. During the long wait after the trial, Attorney Wang Tengfeng continuously communicated and negotiated with the judge, sent complaint letters to the court leadership, and subsequently submitted written requests to the Shenzhen Municipal Political and Legal Affairs Committee and the Municipal People's Congress Standing Committee for supervision and oversight, all to no avail. The Shenzhen Intermediate People's Court delayed for nearly a year before issuing a final judgment on October 15, 2013 (Figures 116, 117). The final judgment confirmed the facts ascertained in the first-instance trial but overturned the first-instance judgment on the grounds of "unclear findings of fact and improper application of law," and dismissed all of Wang Tengfeng's claims, meaning the Legislative Affairs Office did not constitute infringement, and Nanfang Daily also did not bear tort liability, because what was harmed was only Attorney Wang Tengfeng's "sense of reputation" rather than the "reputation" protected by the right to reputation. The reasoning section of the Civil Judgment of the Shenzhen Intermediate People's Court is as follows:

This court holds that this case is a reputation infringement case. It is necessary to distinguish between the three different concepts of reputation, the right to reputation, and the sense of reputation. Reputation is society's evaluation of a citizen's conduct, thoughts, morality, role, and talent. This evaluation is objective and is obtained through the citizen's own efforts and performance, not through self-evaluation. The right to reputation is a citizen's right to maintain and protect their reputation, a right legally enjoyed to exclude others from infringing upon the social evaluation they have obtained. The sense of reputation is an inner self-feeling, a person's feelings and self-evaluation of their own value (thoughts, conduct, credit).

In this case, the Southern Daily's article on April 12, 2011, described Wang Tengfeng's identity as "Legal Advisor to the Shenzhen Municipal Government," causing public misunderstanding about his identity. In subsequent reports, the Southern Daily first defined whether Wang Tengfeng was indeed the "Legal Advisor to the Shenzhen Municipal Government" based on the official press release from the Legal Affairs Office, and in the final paragraph of the report, it also referenced Wang Tengfeng's opinion to explain his identity from another perspective. This court holds that: first, the content of the Southern Daily's report on April 14, 2011, was factual; second, the report on April 14, 2011, balanced the opinions of Wang Tengfeng and the Legal Affairs Office, and it was insufficient to cause the public to form a negative evaluation of Wang Tengfeng's identity and conduct, nor to negatively impact his personal image, thus not constituting infringement against Wang Tengfeng. The content of the report only affected Wang Tengfeng's personal inner feelings to a certain extent, influencing his self-assessment of his reputation and harming his sense of reputation rather than his right to reputation. The right to reputation and the sense of reputation are two distinct concepts; harm to the sense of reputation does not necessarily lead to damage to the right to reputation. Therefore, in this case, the involved report only damaged Wang Tengfeng's sense of reputation but not his right to reputation, so this court does not support his claims. The appellant Southern Daily's appeal that it did not infringe upon Wang Tengfeng's sense of reputation is upheld by this court.

One of the most important judicial principles in China is "taking facts as the basis and law as the criterion." When a judge makes a specific ruling, if they intend to cite a widely accepted legal theory beyond explicit legal provisions as a basis, they must exercise extreme caution. First, they must ensure their understanding of the relevant legal theory is comprehensive and accurate; second, they must provide a thorough and clear explanation and elaboration of the cited legal theory in the judgment. Otherwise, it can easily lead to erroneous rulings or be perceived by dissatisfied parties as sophistry or perversion of justice. Unfortunately, the reasoning in the above judgment is poorly articulated and logically unclear, largely reflecting that the judge's understanding of the legal theory concerning the "sense of reputation" is neither comprehensive nor accurate.

According to the widely accepted legal theory recognized by authoritative civil law scholars in China, reputation in a broad sense includes external reputation and internal reputation. External reputation refers to the evaluation of a specific civil subject's value by third parties; this evaluation is made by others, exists in society, has objective attributes, can be perceived by others, and has objective criteria for assessing gains and losses, hence also called objective reputation. Internal reputation refers to a specific civil subject's inner feeling of their own value; it is a self-evaluation, perceived only by oneself, with no objectively measurable standards, hence also called subjective reputation. External reputation or objective reputation is commonly referred to as reputation in the narrow sense; internal reputation or subjective reputation is commonly referred to as the sense of reputation. Although there is still debate, it is generally believed that the "reputation" protected by the right to reputation is the narrow sense of reputation, i.e., external or objective reputation. The sense of reputation, i.e., internal or subjective reputation, is closely related to personal dignity and may thus become the object of protection under general personality rights.

The above conceptual analysis clearly tells us that to determine whether the harm in a specific reputation infringement dispute is to reputation or the sense of reputation, the sole criterion is whether the alleged infringing act is perceived by third parties and thus affects their objective evaluation of the right holder, or is only known to the right holder and thus affects only their self-perception. Following this logic, we can easily point out the most absurd part of the reasoning in the above judgment by the Shenzhen Intermediate People's Court: the "report" by the Shenzhen Municipal Government Legal Affairs Office and the Southern Daily was widely disseminated through newspaper distribution and online reposts, and the format and content of the "report" allowed any person with ordinary judgment and reasoning ability to directly conclude that "Wang Tengfeng is a fraud," yet the court insisted that the only harm was to Wang Tengfeng's personal feelings. If this is not a lack of basic common sense and logical judgment about human affairs, then it is a deliberate disregard and deafness to the facts of the case, constituting a perversion of justice.

Figure 116: Scan of the reasoning section of the Civil Judgment by the Shenzhen Intermediate People's Court.

Figure 117: Scan of the reasoning and main ruling sections of the Civil Judgment by the Shenzhen Intermediate People's Court.

　　(待续)