Innovation Through Intimidation: An Empirical Account of Defamation Litigation in China
This article examines 223 recent defamation cases in China. Empirical analysis of claims and outcomes reveals that defamation litigation is developing on two tracks. Track-one cases are brought by public officials, government and Communist Party entities, and corporations to restrict and silence the increasingly autonomous Chinese media. Track-two cases are brought by ordinary persons against the media – which remain an arm of the Party-state.
Conventional wisdom takes track-one suits as the paradigm and perceives defamation litigation in Chinese courts as yet another lever of state control over the media. Such developments correspond to the use of defamation law in other contemporary single-party states, and to the use of defamation litigation to preserve state authority in western legal history. Yet by ignoring track-two cases, this popular view shortchanges the extent to which defamation litigation also facilitates ordinary persons challenging state authority. The conventional wisdom also overlooks the degree to which defamation litigation reflects growing use of the formal legal system by local authorities to resist central Party-state control.
The empirical findings in this article suggest that use of defamation litigation by track-one plaintiffs for repressive purposes is encouraging ordinary persons to use such cases to protect their own interests, and courts to become increasingly important arbiters of individual rights. Instrumental use of the courts by local elites is legitimizing the role of courts in Chinese society. Defamation litigation serves to intimidate and restrain the Chinese media, but such cases may also increase official accountability. Defamation litigation in China does not fit easily into western frameworks. Understanding the roles defamation litigation is playing in China thus adds significant insight into the nature of legal innovation and institutional development, both in China and in other developing legal systems.