Academic journal article Law & Society Review

The Diffusion of the Concept of Public Figure in China

Academic journal article Law & Society Review

The Diffusion of the Concept of Public Figure in China

Article excerpt

(ProQuest: ... denotes non-US-ASCII text omitted.)

1. How and Why Did the Concept of Public Figure Diffuse in China?

1.1 Research Question

In the United States, the Supreme Court casts the balance strongly in favor of freedom of expression in libel cases involving public figures, individuals who command substantial, independent public interest either because of their position in society or because they have injected themselves into a public controversy, by requiring them to prove that a challenged statement was made with knowledge of falsity or with reckless disregard for the truth (Curtis v. Butts and AP v. Walker 1967: 154-155). In China, by contrast, the right to reputation is given a prominent place while freedom of expression is pushed aside. However, the concept of public figure in the U.S. law has been introduced into China and applied in a number of cases, albeit in an altered form that avoids applying the concept to public officials. Our research attempts to explain how and why the concept has diffused in China.

It seems quite unexpected that the legal concept of public figure could travel from the United States to China, because freedom of expression is a deeply embedded value in the United States, a constitutional representative democracy with a common law system where courts have the power of judicial review and a fair amount of judicial independence. China, by contrast, is an authoritarian regime where freedom of expression lacks a supportive legal foundation. It is not the case that China has adopted a global norm or best practice in a top-down manner. Thus, we are left with an intriguing research puzzle: How and why did the concept of public figure diffuse in China? More precisely, how did a legal concept that was originally designed to protect media from lawsuits by public officials in the United States become transformed in China into a concept that Chinese judges applied only to public figures such as celebrities but not public officials?

2.Our Argument: The How and Why of Diffusion in China

Diffusion of law is a process (Elkins and Simmons 2005) of the movement of a legal concept from the originating jurisdiction to the domestic jurisdiction. In our case, this process is diffuse in the sense that it is not a one-to-one transfer. We draw attention to a process of diffusion in the domestic jurisdiction that is characterized by experimentation, adaptation to domestic institutions and the domestic ideational context, a bottom-up rather than topdown pathway, and an open-ended process that will not necessarily result in adoption. In doing so, we address deficiencies in the literature on the diffusion of law, which has not tended to emphasize experimentation, bottom-up pathways, or open-ended processes.

In order to fully understand why the process took place in an authoritarian system, we also have to examine the institutional (Peerenboom 2012) and ideational (Finnemore and Sikkink 1998; Twining 2004) contexts. These contexts also deepen our understanding of how the process of diffusion took place. Looking at the institutional context in China, we find that the authoritarian state, via either the Supreme People's Court or the National People's Congress, has not imposed a top-down legal policy that requires lower courts to follow the public figure concept. Instead, the Supreme People's Court has promoted "judicial innovation," which gives lower courts latitude to experiment with different legal concepts and methods (Huang and Hao 2015). Judicial innovation has allowed lower courts to experiment with the public figure concept. Judicial innovation is a bottom-up type of inventiveness, as opposed to a top-down policy experiment in a particular jurisdiction mandated by the central government. This process of diffusion was bottom-up also in that it was driven by the practical need of the media to defend against litigation, and it was promoted by lawyers and legal scholars.

As the lower courts have experimented with the concept of public figure, they have been careful to adapt it to the Chinese institutional context by not imposing it on public officials, but instead applying it to cases involving public figures such as celebrities and sports stars. …

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