Abraham Advises Chinese Lawmakers on Tort Law Changes

In their revisions of tort law, Chinese lawmakers are showing a willingness to codify greater protection for freedom of expression, according to Robert E. Scott Distinguished Professor Kenneth Abraham. Abraham met with legislative staff and their academic advisors in Beijing recently for a two-day workshop on issues related to defamation of character and invasion of privacy.

Abraham, also the Class of 1966 Research Professor, was one of five prominent American tort law experts who met with Chinese legislative staff and scholars to discuss draft legislation. The group has been working with staff of the National People’s Congress for three years under the auspices of the China Law Center at Yale University Law School, which also arranged their trip to Beijing in January.

“We’re working on reconciling the interest in protecting personal reputation with the right of free expression by the media,” Abraham said. “We weren’t sure in advance how open the discussion would be. But it was very open and they are willing to consider giving the press breathing space, even if it’s not as much as the press has here.”

The Chinese are especially sensitive about reputation, he said, because of the Cultural Revolution when so many people were destroyed through baseless public denunciations.

“China is a series of walls,” he said. “The Great Wall is a real metaphor. You get beyond one wall and there’s another. It’s hard to get the big picture of what’s really going on. But the rule of law is emerging in China, and anything we can do to promote it will benefit the Chinese people.”

Whether ruling officials will accept all the ideas in the legislation is unclear. Lawyers who defend fringe newspapers are sometimes visited at home by the police. But the government appreciates that it will not be possible to control information in the future as it could in the past, Abraham noted, and it has a strong interest in exposing local corruption, the origin of many defamation suits.

“They also understand they need rights of expression to promote a market economy,” he said. “You have to be able to describe products critically for a market to work well.”

Chinese tort law is patterned on the German civil code. “They seem more inclined now to think about common law principles, but I think they will stay a civil law country,” he predicted.

In the future the advisory group will move on to issues of personal liability for personal injury, he said. Joining him were Anthony Lewis (the former New York Times columnist); Paul Gerwitz and Robert Post, both from Yale Law School ; and Michael Chesterman, an Australian defamation law expert.