By King & Wood’s Trademark Group
One reader puts forward some questions regarding tort liability of the on-line BBS owners:
I am interested in the court’s decision in Wang Hai Yang case but do not read Chinese. I note that the case has been appealed and want to know the court’s decision particularly on the tort liability law and the right to reputation and privacy. Since the Tort Liability Law came into effect, I want to know if there had been any changes to the court’s interpretation to right to privacy and right to reputation after Wang Fei case.
For your questions, please see below our reply:
1. Wang Haiyang case;
In Wang Haiyang vs. Hainan Kaidi Network Information Co., Ltd. [(2011) guminchuzi. No.399], the first instance court found that the defendant online BBS owner was subjectively at fault in refusing to delete online posts of an offensive and libellous nature regarding the plaintiff despite the plaintiff’s various oral pleas and rendered a decision favorable to the plaintiff by citing Article 101 of the General Principles of the Civil Law of the PRC and Sub 2, Article 36 of the Tort Law of the PRC. However, the court did not address the issue of whether the defendant was a tortfeasor. It also denied the plaintiff’s compensation claim.
Both the plaintiff and the defendant appealed to the Henan Kaifeng Intermediate People’s Court. The appellate court held that the defendant’s refusal to delete the posts in question without reasonable grounds constituted tortious conduct as against the plaintiff by infringing the plaintiff’s and plaintiff family’s rights of reputation under Article 101 of the General Principles of the Civil Law of the PRC and Sub 2, Article 36 of the Tort Law of the PRC. The court ordered in its decision dated Dec. 19, 2011 that the defendant should make a formal apology on its website to the plaintiff according to Sub 1, Article 120 of the General Principles of the Civil Law of the PRC and pay compensatory damages of RMB5,000 to the plaintiff for emotional distress that he and his family suffered from the tort, which is calculated based on the standard set by Article 10 of the Interpretation of the Supreme People’s Court on Several Issues about the Trial of Cases Concerning the Right of Reputation (1998).
For your reference, the English versions respectively of the General Principles of the Civil Law of the PRC and the Tort Law of the PRC can be found at below links:
http://english.mofcom.gov.cn/aarticle/lawsdata/chineselaw/200211/20021100050859.html
http://www.procedurallaw.cn/english/law/201001/t20100110_300173.html
The English version of the Interpretation of the Supreme People’s Court on Several Issues about the Trial of Cases Concerning the Right of Reputation can be found at http://eng.chinalaw.com.tw/law/display.asp?id=6673&keyword=. However, the full text is only available to existing users.
2. We have not noticed any significant changes to the court’s interpretations of the right to privacy and right of reputation since the Wang Fei case that was decided in late 2008.
Hope the above helps. Thank you for your inquiry.