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

Abstract

This paper examines implication of non-justiciable of constitution on freedom of expression in China, and how the competing interest of constitutional rights to reputation and freedom are resolved in application of two major defences, i.e. truth and fair comment in defamation lawsuit and its implications on protecting media freedom in China. Given that the Chinese Constitution itself is non-judiciable, the principles of balancing and proportionality are undeveloped in Chinese defamation law, and no approach of resolving the competing interest of constitutional rights have yet developed in Chinese legal theories, the proper balance between two rights in 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, a consistent and clear guidance on the burden of proof, 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 the protection of confidential sources as 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.