The Chinese Civil Code's impact on the protection of Virtual Reputation in China. Issue 2 (3rd July 2021)

• Record Type: Journal Article
• Authors: Ge, Jiangqiu; Chen, Li
• Is Part Of: Asia Pacific law review. Volume 29:Issue 2(2021)
• Page Start: 366
• Page End: 383
• Publication Date: 2021-07-03
• Subjects: Virtual Reputation -- right to reputation -- Chinese Civil Code -- personality rights law -- cyber law; Law -- Asia -- Periodicals; Law -- Oceania -- Periodicals; Law; Asia; Oceania; Recht; Periodicals; Electronic journals; 349.5
• DOI: 10.1080/10192557.2022.2033088
• Languages: English
• ISSNs: 1019-2557

Abstract

ABSTRACT: Prior to the promulgation of the Chinese Civil Code, when a person's online persona or virtual character is defamed, the law of defamation in China only provides damages or compensation to the human controller if and only if the controller's 'social estimation' suffered harm in the real world. Absent such harm, no remedy based on personality rights law or tort law is available. This was the position taken by the Supreme People's Court in the gazetted case of Jing Zhang v. Lingfeng Yu . This position has since been embraced by Chinese legal scholars and subsequent judicial practice. This article takes a position contrary to this mainstream view: the controller's right to reputation should be protected even if there is no diminution of his/her real life 'social estimation', such that only the online persona is insulted or defamed. This article analyses the rationale for the protection of online personas as a standalone right and argues that such protection can be achieved under the current Chinese legal framework and principles through the sound interpretation and application of Article 1024(2) of the recently promulgated Chinese Civil Code.