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

4. Minor Errors in the First Instance Verdict

According to Article 7 of the Supreme People's Court's Interpretation on Several Issues Concerning the Trial of Reputation Rights Cases, whether liability for infringement of reputation rights is established should be determined by comprehensively considering factors such as the fact that the victim's reputation has indeed been damaged, the perpetrator's illegal and tortious conduct, a causal link between the illegal act and the harmful consequences, and the perpetrator's subjective fault. Since reputational damage is intangible, proving the "fact of actual reputational damage" is very difficult. In theory and practice, whether the illegal act of infringing reputation rights is known to a third party is generally used as the standard for determining reputational harm, because reputation is a third party's evaluation of a specific civil subject's value. Once the act of infringing reputation rights is known to a third party, it acts on the public's perception, inevitably leading to a reduced social evaluation of the victim. In light of this, Attorney Wang Tengfeng applied for notarization of Baidu and Google search results for the infringing news reports to prove that the illegal acts of the Legal Affairs Office and Southern Daily were widely disseminated and well-known. This is merely a routine practice in ordinary reputation cases. For this case, the greatest difficulty lies in proving that the defendants, especially the Shenzhen Municipal Government Legal Affairs Office, committed illegal acts infringing reputation rights. On the surface, as the Legal Affairs Office argued in its "Reply," they "responded to errors in relevant reports and requested corrections, which is both an act of fulfilling their duties and a legitimate exercise of their rights to protect their own interests," and their "response was entirely a statement of objective facts, with neutral and objective wording." To prove that such conduct constitutes an illegal act infringing reputation rights, the key is to convince the judge that the Legal Affairs Office's "high-sounding and fact-based" response (including its content and manner), combined with the impact already generated by the previous report, would lead a third party with normal reasoning ability to conclude that "Wang Tengfeng was publicly exposed for impersonating a government legal advisor," thereby causing an extremely negative social evaluation of Wang Tengfeng. To this end, in addition to making every effort to present evidence, reliance must be placed on the debate and reasoning during the court trial. As for the subjective fault of the Shenzhen Municipal Government Legal Affairs Office, i.e., the intent or even malice to infringe Wang Tengfeng's reputation rights, evidence from the direct communication among the three parties on the evening of April 13, particularly between Wang Tengfeng himself and the Legal Affairs Office leadership, is sufficient to prove it. Moreover, analyzing the psychology of the litigants, it can be anticipated that reporter Guo Biao and Southern Daily, motivated by self-exoneration, would consciously or unconsciously assist plaintiff Wang Tengfeng in proving the Legal Affairs Office's intent to infringe.

For strategic litigation considerations, to increase the case's influence and prevent the court from favoring the government defendant through public scrutiny, Attorney Wang Tengfeng also applied to the Futian District Court to add Baidu, Google, and others as defendants, but the court did not agree.

On October 24 and December 1, 2011, the Futian District People's Court held two public hearings in the case of Wang Tengfeng v. Shenzhen Municipal Government Legal Affairs Office and Southern Daily for reputation infringement. The first-instance verdict was rendered on July 6, 2012, taking a full one year and two months from the date of case filing!

The facts determined in the first-instance judgment, aside from deliberately or inadvertently omitting the respective roles of the Shenzhen Municipal Government Legal Affairs Office and Nanfang Daily in determining the title, style, and content of the second report, are essentially consistent with the process described earlier in this book and will not be repeated here. Below, we focus on the reasoning section of the first-instance judgment:

"The plaintiff already enjoys a certain reputation in the legal profession. The defendant Nanfang Daily failed to promptly detect and correct the error in the first report's main text, where defendant Guo Biao described the plaintiff's identity as a legal advisor to the Shenzhen Municipal Government, and published the article in Nanfang Daily under the title 'Legal Advisor to the Shenzhen Municipal Government.' At the request of the defendant Legal Affairs Office, the defendant Nanfang Daily published the second report to correct the error in the first report. Looking at the two reports together, they inevitably lead the public to mistakenly believe that the plaintiff himself promoted his identity as a legal advisor to the Shenzhen Municipal Government, causing negative public evaluations of the plaintiff's conduct, harming his personal image, and damaging his reputation. Moreover, the second report, in terms of title, content, length, font, and other forms, overly highlighted the plaintiff's name and personal identity, exceeding the appropriate form and content necessary to correct the identity description error in the first report. The defendant Nanfang Daily, due to its work negligence, triggered this dispute and, because of its prior fault, bore the obligation to proactively and effectively correct the error and mitigate negative social impact. However, the defendant Nanfang Daily did not proactively correct the error in the first report and failed to strictly review and control the form and content of the second report, failing to exercise due diligence. Its excessive conduct infringed on the plaintiff's right to reputation and should bear corresponding legal liability. The defendant Legal Affairs Office, as the functional department responsible for government legal advisory work, requested the defendant Nanfang Daily to publish a correction to mitigate negative impact, which was a legitimate act in performing its duties and exercising its powers, not unlawful, and should not bear tort liability. The defendant Legal Affairs Office was not the perpetrator of the tortious act in this case, and there is no evidence that the defendant Legal Affairs Office forced the defendant Nanfang Daily to publish the article. The plaintiff's claim for compensation from the defendant Legal Affairs Office lacks factual and legal basis and is not accepted by this court. Given that defendant Guo Biao's actions were in the course of his duties, defendant Guo Biao bears no liability. There is no subordinate relationship between defendant Nanfang Media Group and defendant Nanfang Daily, and the plaintiff's request for defendant Nanfang Media Group to bear tort liability has no legal basis and is not supported by this court."

The reasoning section of the first-instance judgment quoted above indicates that the first-instance court believed that although the Legal Affairs Office claimed its response was "entirely a statement of objective facts" and used "neutral and objective language," considering the title highlighting "Wang Tengfeng's" name and the news reporting style used by Nanfang Daily when publishing its response, along with the repeated emphasis on the "three points" argument that "Wang Tengfeng is not a municipal government legal advisor," and the significant impact of the previous report, the actual information dissemination effect was sufficient to constitute an illegal act infringing on reputation rights. This is largely consistent with our earlier analysis and reasoning. However, puzzlingly, the first-instance court also concluded that this reputation infringement was solely the act of Nanfang Daily and unrelated to the Legal Affairs Office. Although the error in the first report was indeed Nanfang Daily's own responsibility, the content and format of the second report were strongly insisted upon and demanded by the Legal Affairs Office. Nanfang Daily, knowing it was inappropriate, still yielded to the Legal Affairs Office's unreasonable demands, which was indeed wrong and compounded the error. Nevertheless, it should not bear full tort liability alone. Even without considering the previously mentioned "administrative hegemony" factor, solely from the perspective of the relationship between the media and the party affected by the media's "false and inaccurate" report, Nanfang Daily cannot entirely "substitute" for the Legal Affairs Office in bearing full tort liability.

The General Administration of Press and Publication issued the "Measures for Handling False and Inaccurate Reports Published in Newspapers and Periodicals" on July 8, 1999, quoted as follows:

To ensure the truthfulness, accuracy, and fairness of news reports in newspapers and periodicals, protect the legitimate rights and interests of citizens, legal persons, or other organizations, and maintain the publishing order of newspapers and periodicals, in accordance with relevant provisions of the "Regulations on Publishing Management," the following provisions are made for handling false and inaccurate reports and documentary works published in newspapers and periodicals:

1. Newspapers and periodicals must comply with press and publication regulations, and news reports and documentary works published must be truthful, accurate, and fair. Newspapers and periodicals shall not publish false or inaccurate reports or documentary works.

2. If newspapers or periodicals publish false or inaccurate reports and documentary works, the relevant publishing unit shall make a public correction in the newspaper or periodical it publishes to eliminate the impact; if the legitimate rights and interests of citizens, legal persons, or other organizations are infringed upon, the relevant publishing unit shall bear civil liability in accordance with the law.

3. If newspapers or periodicals publish false or inaccurate reports and documentary works, resulting in infringement of the legitimate rights and interests of citizens, legal persons, or other organizations, the parties concerned have the right to demand a correction or a reply, and the relevant publishing unit shall publish it in the newspaper or periodical it publishes; if publication is refused, the parties may file a lawsuit with the people's court.

4. Corrections or replies published by newspapers or periodicals due to the publication of false or inaccurate reports and documentary works must meet the following requirements:

(1) For public corrections, they shall be published in the same position of the most recently published issue of the newspaper or periodical from the date the false or inaccurate report and documentary work is discovered;

(2) For corrections or replies made at the request of the parties, they shall be published in the same position of the most recently published issue of the newspaper or periodical from the date the parties make the request.

5. If newspapers or periodicals republish false or inaccurate reports and documentary works, the corrections and replies shall be handled in accordance with the provisions of Article 4 of these Measures.

6. If newspapers or periodicals publish false or inaccurate reports or documentary works that cause adverse social impact, the General Administration of Press and Publication or the provincial, autonomous regional, or municipal press and publication bureau in the locality may, depending on the severity of the circumstances, take the following administrative measures:

(1) Issue a notice of violation;

(2) Circulate a notice of criticism;

(3) Order corrections or self-criticism within a specified time limit.

7. If newspapers or periodicals publish false or inaccurate reports or documentary works that harm national or public interests or cause serious social impact, the General Administration of Press and Publication or the provincial, autonomous regional, or municipal press and publication bureau in the locality may, depending on the severity of the circumstances, impose an administrative penalty of a warning or a fine of up to 10,000 yuan.

8. If newspapers or periodicals that publish false or inaccurate reports or documentary works are subject to administrative measures or administrative penalties, the General Administration of Press and Publication or the provincial, autonomous regional, or municipal press and publication bureau in the locality may also simultaneously recommend that their supervisory authorities or sponsoring units rectify the offending publications and impose appropriate administrative sanctions on the responsible individuals.

IX. These Measures shall come into effect from the date of issuance.

From the provisions of Articles 3 and 4 of these Measures, the party concerned has the right to request corrections and replies, and newspapers and periodicals shall not refuse. That is to say, the Legal Affairs Office of the Shenzhen Municipal Government believes that the previous report was "seriously inconsistent with the facts, misled the general public, and objectively caused severe negative social impact. It also greatly affected the normal work of the respondent." Therefore, it has the right to request "corrections and replies," and even the right to decide the manner of "corrections and replies," and the Southern Daily shall not refuse, and in fact did not refuse. Based on the basic principle of authorial responsibility, the Legal Affairs Office should bear legal liability for the infringement consequences arising from the "corrections and replies" (the latter report) published strictly in accordance with its requirements! It's that simple.

Furthermore, there is a difference in the degree of fault between the Southern Daily and the Legal Affairs Office of the Shenzhen Municipal Government. Based on the fact of the tripartite communication and negotiation the night before the publication of Report 2, it can be determined that both the Southern Daily and the Legal Affairs Office were aware that the publication of Report 2 would cause significant damage to the reputation of Lawyer Wang Tengfeng. However, the Legal Affairs Office insisted on publishing it in the format and content of its drafted press release, thus adopting a direct intentional mental attitude toward the harmful consequences. The Southern Daily, knowing that the Legal Affairs Office's press release would cause harmful consequences, did not refuse or prevent it, but instead yielded to the Legal Affairs Office's unreasonable demands, adopting an indirect intentional mental attitude toward the harmful consequences. The degree of fault in direct intent is clearly higher than that in indirect intent, but the first-instance court ruled that the Legal Affairs Office, which had direct intent, did not bear infringement liability, while the Southern Daily, which only had indirect intent, had to bear all infringement liability alone. Such a ruling is not only unacceptable to the plaintiff, Lawyer Wang Tengfeng, but also to the Southern Daily (Figure 115).

Figure 115: A scanned copy of the main text of the first-instance judgment from the Futian District People's Court.

　　(待续)