The Libelous Novel
This is a translation of a Southern Weekend article titled "Can A Novel Be Guilty of Libel?" by Dai Dunfeng ( 戴敦峰).
[in translation]
At 63 years old, Hubei University Chinese Literature Professor Tu Huaizhang ought to be enjoying his retirement years, but he has been sentenced to 6 months of detention by the court for the crime of 'libel.'
The matter that brought Tu Huaizhang so much trouble was a novel that he wrote just before he retired.
In August 2003, Tu Huaizhang published a 390,000-word novel titled Human Calamities (人殃).
The sketch of the story is that newspaper reporter Yu Weichen admired the reputation of university teacher Yu Weishan and therefore wrote a letter during the Cultural Revolution to Jiang Qing under both their names. When the Gang of Four was smashed, this letter came to the attention of the university where Yu Weishan was. The university party committee secretary Zeng Wen colluded with Pu Ruoteng and others to attack their enemy Yu Weishan in an ultra-leftist farce.
The story took place in the 'two rivers/three towns' area where the Dayang River intersects the Xiaohan River. The university in the novel "faces Dayang River to the north and the Bin Lake to the south." The location is named "Baoshu Bay." The university is named the "Two Rivers Normal Academy."
After Human Calamities appeared, many renowned scholars and critics gave high praises. The famous critic and Wuhan University professor Fan Xing wrote an essay to state that the novel "touched the deep-seated problems about the structure of universities ... this is the continuation of the 'reflective literature' of the 1980s and has the significance of being a 'new reflective literature.'"
This is the first novel written by Tu Huaizhang -- he called it Volume 1 of "The Annals of The University." According to his plan, there would be a Volume 2 and Volume 3. After the novel was published, Tu gave some copies to his Hubei University colleagues and leaders as presents.
In truth, Tu Huaizhang did not get to Volumes 2 and 3 because he was in deep trouble.
Thirteen professors and cadres at Hubei University (formerly the Wuhan Normal Academy) believed that Tu Huaizhang wrote about them in the book. Furthermore, he made up things to libel them with serious consequences for their characters and reputations. In October 2004, the 13 plaintiffs filed criminal and civil lawsuits at the Wuchang District Court against Tu Huaizhang for insults and libel that caused mental anguish. In December, the court turned the case back for insufficient evidence. The thirteen plaintiffs appealed, and the Wuhan City Middle Court sent the case back for re-trial.
In August 2005, the Wuchang District Court handled this case in a trial that was not open to the public.
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Tu Huaizhang was a professor in the Chinese Literature Department at Hubei University. He was also the director of the Literature Teaching Research Center. He has worked at Hubei University for almost 40 years He is presently a member of the Chinese Writers Association, a director of the Hubei Province Writers Association, the vice-president of the Wuhan Writers Association and had once been named a "young writer with exceptional contribution" by Hubei province and he received State Council subsidies.
The thirteen plaintiffs who took Tu Huaizhang to court were his former colleagues and supervisors at Hubei University.
The Lower Court learned that the story took place in a provincial capital at the intersection of Dayang River and Xiaohan River. It believed that Dayang referred to Changjiang (aka Yangzi) while Xiaohan referred to Hanjiang, and therefore the provincial capital at the intersection of the two rivers must be the city of Wuhan.
The Wuchang District court found: "In 1976 Tu Huaizhang and the complainant Tu Huaicheng co-authored an essay, which was not published in a timely manner. Tu Huaizhang and Tu Huaicheng wrote a letter of complaint to Jiang Qing. In 1982, the central government dealt with the 'three types of people' and the Hubei University investigated the matter of the letter from Tu Huaizhang to Jiang Qing. Most of the 13 plaintiffs were members of the investigative committee."
Tu Huaizhang had these doubts: "They should have looked at the files and established who signed the original letter and who wrote that letter."
During the court hearing, the court found that in 2003, Tu Huaizhang used his experience of being investigated more than twenty years ago as the theme to write the novel Human Calamities. Furthermore, Tu used variations or homonyms in names and other indicators to describe the characters such that those who went through the investigation will naturally think that the characters in the novel were these 13 people.
The Wuchang District Court believed that Tu Huaizhang injected these real-life people into the book, and others who are acquainted with them can simply match them up. The characters in the novel have the same experiences, job positions and appearances as the plaintiffs.
One plaintiff provided the relevant material. In 1972, she was transferred from the Northeast to the Wuhan Normal Academy. She worked in the Chinese Literature Department for five years, as the league committee secretary, the academy party committee organization department head, the party organization deputy director and then she was transferred to Wuhan City. Her husband was a military man and they had a daughter while she was working at the Wuhan Normal Academy. In Human Calamities, the character of Tong Xiaoxin had the same experience, job position, spouse and daughter.
But the character Tong Xiaoxin in the novel was not a Chinese. She was a Russian woman.
Another plaintiff was the party secretary at the Wuhan Normal Academy in 1965 during the Cultural Revolution, and his experience and job position were the same as the character Qu Yiqian in Human Calamities.
The 13 plaintiffs pointed out that there were many similarities between the characters in the novel and themselves.
The court believed that even though the novel did not use the actual names, it used specific characterizations to lock in on the individuals and then it made up events. On this basis, people can deduce who the targets of libel were. Such an approach damaged the characters and reputations of the plaintiffs. Tu Huaizhang distributed and gave away the book and this showed that he wanted to make up and distribute false stories.
Therefore, the court finally pronounced Tu Huaizhang guilty of libel with a sentence of 6 months in detention.
Tu Huaizhang is presently appealing the verdict at the Wuhan City Middle Court.
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When the author of the literary novel Human Calamities was sued and found guilty, there was a tremendous response from the Hubei province literati.
On December 20, the Hubei Province Writers Association chairman Wang Diane expressed his opinion at the regular meeting: The legal troubles of Human Calamities' author Tu Huaizhang is a major event in the literary scene.
"The Hubei Province Writers Association strongly wishes that the judicial organizations pay attention to the fact that this is a novel and a literary work. All the arguments over the content of the work should be resolved by methods of literary criticism in accordance to the practice of literature," Wang Xianpei said.
On December 22, the Wuhan City Writers Associates published an open letter to support Tu Huaizhang: "Human Calamities is a novel. A novel permits literary creation. A novel can come from life itself, but it is more than life. Any attempt to 'match' people up is childish, absurd and risible."
The open letter from the Wuhan City Writers Association also stated that the novel by Tu Huaizhang was not literary reportage. It did not follow actual historical facts and real-life experiences to narrate, but it followed Mr. Lu Xun's method of 'combining' people to form a composite character. Often, a character's speech came from Zhejiang, his face came from Beijing and his clothes from Shanxi."
"If after Lu Xun wrote 'The Story of Ah Q', his Shaoxing compatriots attempted to match themselves up to the characters, Lu Xun could have been in a lawsuit as well and sentenced to jail?"
In an interview with Southern Weekend, a vice-president of the Hubei Province Writers Association said that the lawsuit fell into two opposing fallacious arguments. On one hand, if you say that Human Calamities "distorted history and made up facts," then this attack has no basis because it is a novel and it is entitled to create and invent. Why then are you looking for trouble to 'match' yourself up to fiction? On the other hand, if you say that Human Calamities was too realistic and touched upon your historical errors, or that it coincided with your inglorious past, then this shows that it is not "distorting history or inventing facts" and therefore not libel at all.
Hubei author Xiong Zhaozheng who won the Sixth Mao Dun Literature Award for his novel Zhang Juzheng said: "Not a single name or location in the novel is real. But some people matched themselves up and this caused the author to be jailed. One must say that this is not following the rules of literary creation."
Hubei Province Writers Association vice president Liu Xinglong is a famous writers and he said: "The most significant characteristic of a novel is that it is fictional. Since it is accepted that Human Calamities is a novel, then one should not use fictional material as the proof for the case. Otherwise, where is literature going to go?"
Local writers and critics believe that the court judgment was like an inference based upon unobvious hints and used details from a fictional work as the basis. As such, this is not legally valid. If this method was applied to most literary works, then every person who matches himself/herself up can claim to be libeled and a lawsuit will follow.
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A legal professional believes that if a novel wanted to allude to a historical event and let the principals and their acquaintances match them up, that this is no doubt an infringement of reputation. As such, the principals can bring up a civil lawsuit.
But if the case is elevated to a criminal lawsuit, then "the basis for a libel suit must involve two issues." Chinese Politics and Law University professor Xiao Han believes: "First, why is the plaintiff in the case sure that the character in the novel is himself/herself? Second, why kind of evidence will the court accept in order to be confident that the fictional characters match the real-life characters? This is the key to this case."
People live in society. The right to protect one's reputation is about the assessment of oneself by society. If the assessment of a person is lowered as a result of fictional facts and character defamation, then the reputation of the person has been damaged.
In order to determine that a person is the unique person related to a reputation, thee are two ways. One way is to publicly state the name and his history during a particular period of time (other than the same name and status, there has to be other conditions to make it unique). The second way does not require the disclosure of the name and identity, but it involves detailed descriptions of the life and social environment of the person, including real places, real incidents, real other people and real historical background.
In the eyes of the plaintiffs, the incidents and background in the novel of Tu Huaizhang are a variation of the second way. That is, the writer did not publicly state the names of the plaintiffs nor the actual location, incidents nor other people.
"From the viewpoint of judicial method, it is extremely difficult for the Wuchang court to find Professor Tu Huaizhang guilty of libel. It can even be said to be impossible." Professor Xiao Han believed that the court must prove that "even if the characters in the novel of Tu Huaizhang do not fit the two special formulations above, it was still possible to let those who knew the plaintiffs to regard the characters as the plaintiffs after reading the novel."
Chinese Renmin University Law School Professor and Doctoral Student Advisor Yang Lixin had proposed some standards of reference in order to judge whether a novel has damaged someone's reputation in "On Novels Infringing Upon The Reputation Rights." These standards are presently adopted by most courts.
Professor Yang Lixin pointed out that novels that do not use real names or locations can be said to point to the plaintiffs through the fictional characters if three conditions are satisfied.
1. The fictional characters must have similar basic characteristics as the original characters. Basic characteristics are the key indicators that would distinguish one person from others, such as profession, experience, appearances, etc.
2. The special environment of the fictional characters and the real people must be the same; that is, the living and work environments and the relationships among people must be the same.
3. Those who are familiar with the real people will believe that the fictional characters refer to the real people after reading the novel.
"In examining these cases, the court used the 'cross-sectional' method to determine whether the characters are the same. This is worth considering," explained Yang Lixin.
In longitudinal analyses, the experiences of the fictional characters and the real persons are divided into several major periods. From each period, a representative incident is used as the standard and then compared. In the cross-sectional analysis, the experiences of the fictional characters and the real persons are extracted, such as marriage, divorce, special historical events, exterior appearances, social connections, living environment and so on, and then these are compared.
Professor Yang Lixin explained that the Supreme court pointed out in "Answers to Certain Questions About Determining Reputation Violations": "Writing and publishing literary works do not describe specific individuals in real life; just because the story details are similar to someone's situation in real life should not be regarded automatically as damaging someone's reputation."
Professor Xiao Han believes that Human Calamities is a very typical story. The characters, locations and events were fictional. Its art is a certain truth of logic and emotions, but it is not a truth that matches real people and events. Therefore, the readers should not regard at will the fictional characters as real persons.
"All realist works must be based upon something in real life. They cannot be totally fictional. But if we compare Human Calamities in this simplistic true-false manner, it will lead to a bad consequence. All novels that are based upon real subjects become libel." Xiao Han said that these judicial abuse will mean the end of realist fiction.
Legal professionals believe that the law should protect the reputation, privacy and other human rights of the citizens, but the law must also protect the freedom of citizens to speak and create. The law needs to be find an appropriate point of balance between these two demands.