Tongue-in-cheek: how Internet defamation laws of the United States & China are shaping global Internet speech.

• Author: Hostettler, Nicole

Cite as 9 J. HIGH TECH. L. 66 (2009)

1. Introduction

   In the summer of 2007, a scandal broke out in the United States. Toys sold by American corporation Mattel were found to contain hazardous amounts of lead paint. (1) Mattel issued an enormous recall and blamed toy manufacturers in China for the lead paint found in the toys. (2) As the story unfolded, the Internet buzzed with newscasters, outraged bloggers, and concerned parents all talking about the dangers of the Chinese-made toys. (3) That fall, the Chinese province of Guangdong--where the toys had been manufactured--finally had enough. (4) The local government stated that it would back its domestic toy-makers if they decided to bring a lawsuit against Mattel. (5) The toymakers brought defamation suits on the basis that lead levels were not the reason for the recall and the Chinese corporations' reputations--referred to in China as face--had been destroyed in the international community through the Internet. (6)

   In the United States, court decisions concerning Internet speech reflect American ideals of freedom of expression. (7) In China, however, the right to free speech has not been so culturally engrained or legally protected. (8) Chinese moral beliefs on the right to respect and dignity and ideas about how a government should be perceived by its people weigh heavily against the concept of the free flow of ideas. (9) Naturally, the laws governing the Internet speech in China and America reflect their respective cultural values. Unfortunately, the different cultures and laws of these two nations conflict. Now it is their destiny to collide on the Internet.

   This Note examines and compares the laws governing Internet defamation in America and China. First, modern Internet usage is explored in order to understand why this issue is of increasing importance. Second, this Note examines the history and culture of each society in order to understand why these two nations developed so differently and why each is justified in its views. Third, this Note examines the laws as they currently stand in each nation. Finally, this Note explores how the two opposing viewpoints of two economic superpowers will shape Internet speech across the globe.

2. Context

   1. Global Growth and Internet Usage

      China is quickly emerging as a major player on the global stage. (10) On November 11, 2001, after years of debate and negotiations, China officially became a member of the World Trade Organization ("WTO"). (11) China has been industrializing to meet modern global standards and its economy continues to grow at a fast pace. (12) In 2006, China's Gross Domestic Product ("GDP") grew the fastest it has in eleven years. (13) Cheap labor has made China a favored destination for foreign direct investment ("FDI"). (14) As access to the Internet grows across the globe, it has become easier for small companies to expand, and reach out to markets, like China, that were once closed to them. (15)

      The United States is one of the leading countries for Internet usage. (16) However, China has been rapidly catching up. (17) Since its introduction into mainstream China, Internet usage has grown steadily. (18) Between 1997 and 2000, Internet usage nearly doubled every six months. (19) At the start of 2004, China had seventy-eight million Internet users, which was 1,000 times more than the number of users just seven years earlier. (20) By 2006, the number of Internet users had grown 23.4% from the previous year. (21) As of June 2007, there were an estimated 167 million Internet users in China. (22) The United States has an estimated 221 million Internet users; China is second for global Internet population with plenty of room to expand considering only 10.5% of the current population has Internet access. (23)

   2. American Free Speech

      Americans have long cherished freedom of speech as a fundamental right. (24) America is a nation born from revolution; bold speech and a free press were the sparks that began its fire. (25) As a result, when drafting the U.S. Constitution, the framers were eager to protect an individual's right to express himself, even if it that expression was contrary to popular opinion. (26) This right to freedom of expression has become such an integral part of American culture that it can prevail over other rights such as equality, human dignity, and privacy. (27) As a consequence, defamation--a protection from injurious speech--will often yield to freedom of expression in American courts. (28)

   3. American Internet Defamation Law

      As an American creation, it follows that the Internet embodies the American ideals of free speech. (29) At the Internet's inception, there were no specific laws to govern it--only principles. (30) As the Internet took a more central role in every day life, Congress needed to react. (31) In 1996, Congress enacted the Communications Decency Act ("CDA") to "promote the continued development of the [Inneernet" and interactive services, and to provide immunity to third party Internet service providers ("ISps"). (32) Congress chose to promote the use of the Internet as a tool for communication and discourse which resulted in limited liability for defamation in order to achieve these goals. (33) Since the CDA's enactment, courts have interpreted it to immunize ISPs from tort liability arising from defamatory content posted online by third parties. (34)

      Unlike traditional print publishers, ISPs are not liable even if they are on notice of the defamatory content. (35) Courts reason that such liability would place a huge burden on ISPs to determine whether or not each claim validly warns of defamatory content posted on the Internet. (36) Due to the nature and scope of the Internet, ISPs would need a veritable army simply to investigate each claim, and there could be no end to the amount of claims brought to the ISP's attention. (37) Furthermore, courts fear that placing such a burden on ISPs would create a "chilling effect" on Internet speech because ISPs are more likely to delete potentially defamatory content rather than suffer the expense of investigation, risk defamation liability, or face costly litigation. (38)

      Lastly, courts have interpreted the definition of "publisher" in the CDA narrowly, providing ISPs with immunity for "editorial and self-regulating functions." (39) The CDA was enacted to override Stratton-Oakmont, Inc. v. Prodigy Servs. Co., which held that an ISP who maintained editorial functions was a publisher and would be held to the strict liability standard normally applied to defamatory publishers. (40) The language of the CDA's policy states that it was enacted "to remove disincentives for the development and utilization of blocking and filtering technologies." (41) Courts reason that by providing broad immunity to ISPs, the American right to freedom of speech will be preserved on the Internet. (42)

   4. Chinese Dignity and Respect

      Confucius once said, "Without feelings of respect, what is there to distinguish men from beasts?" (43) More than two thousand years later, this deeply-felt value for respect is still reflected in Chinese culture and social thought. (44) Based on the principles of Confucianism, Chinese culture teaches mutual respect, courtesy, and dignity as high moral goals. (45) As a result, legally, the right to personal dignity, respect, and reputation far outweigh the right to speak critically of others. (46)

      Confucian values strive for balance, stability, and harmony in an individual's life and his interactions with other members of society. (47) Rather than focusing on the individual, Confucianism focuses on society as a whole. (48) The individual is just one piece in a larger spectrum. (49) To achieve a state of harmony, the individual must find and maintain his place in the perfect balance of society. (50) If every individual understands his place in society and functions accordingly, disputes can be stopped before they begin. (51)

      Accordingly, singular rights, like an individual's freedom of expression, are secondary to the shared rights of society. (52) This sharing creates a harmony that allows society to be productive as a whole. (53) When society is productive, theoretically a better quality of life can be achieved for all of society's members. (54) If society is concentrated on internal disputes, productivity and growth become stagnant, and all of society is hurt as a result. (55) Allowing individuals to air negative thoughts freely and confront other members of society can destroy the harmony and productivity of the society. (56)

      However, this is not to imply that the idea of freedom of speech does not exist in Chinese law. The Constitution of the People's Republic of China ("PRC") provides specifically for freedom of speech. (57) However, because of the philosophical preference for individual dignity and the right to reputation, the rights to "speak out fully, air views freely" and "hold great debates" are naturally diminished. (58) In China, the rights of the speaker must be taken into consideration in conjunction with the rights of the listeners. (59) The right to free speech cannot be so strong that it destroys other rights in its path. (60)

   5. Chinese Defamation Law

      In China, defamation law takes two forms: (1) defamation against a natural person or individual, and (2) defamation against a corporate entity. (61) While both are serious offenses, the nature of the victim changes the force of the law. (62) Corporations experience more difficulty recovering in defamation suits. This distinction recognizes that while an entity's name can sometimes be essential to the success of its business endeavors, the destruction of its reputation may not equally destroy business opportunities. (63) The individuals who began the corporation, the individuals who make that corporation function, and all the necessary tangibles to make that business run will still exist. (64) Although destruction of a corporations' name may be...