Law at the End of the Day

Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Sunday, January 24, 2016

SUN Yuhua on “How Can the Judicial Interpretation of Internet Libel Break through the Firewall of the Constitution?”

The law of libel, and especially the law of libel as applied to emerging forms of communication via the Internet has become a quite lively area of discussion in China. The liveliness cane be attributed, in part, to recent efforts by state organs to clarify, and to some extent, to broaden the reach of libel--and especially the criminal libel laws--against internet users.

That was the context for a quite provocative and important presentation by Dr. SUN Yuhua, Professor of Law at East China University of Political Science & Law, and currently a visiting scholar at Columbia University Law School at Penn State Law School this past week. Dr. Sun specializes in constitutional and procedural law.

His presentation, drawn from a recent article, “How Can the Judicial Interpretation of Internet Libel Break through the Firewall of the Constitution?” explored significant issues of the interplay of the substantive law of criminal libel at the intersection of Chinese Constitutional law. The paper was also recently presented to the New York Bar Association.

The abstract and PowerPoint presentations follow.

How Can the Judicial Interpretation of Internet Libel Break through the Firewall of the Constitution?

Dr. SUN Yuhua

Abstract: The paper considers whether the current judicial interpretation of Internet libel in China fails to balance the needs to protect freedom of speech, rights of supervision and human dignity. Furthermore, this article considers whether the current judicial interpretation violates the principle of legally prescribed punishment, contravenes the principle of ex post facto prohibition, and disrupts the balance of the Chinese internal justice system. In order to resolve any possible constitutional problem of the current judicial interpretation, this paper argues for the establishment of strict conditions for initiating public libel prosecution, abrogation of the current expansive interpretation of Internet libel, and eventual phases-out of public prosecution for libel when conditions are ripe.

PowerPoint

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About this Site:

At the end of the day, law?

. . . . Emperors and kings

Are but obeyed in their several provinces,

Nor can they raise the wind or rend the clouds;

But his domain that exceeds in this

Stretcheth as far as doth the mind of man.

A sound magician is a mighty god.

* * *

Cut is the branch that might have grown full straight,

And burned is Apollo's laurel bough,

That sometimes grew within this learned man.

Faustus is gone; regard his hellish fall,

Whose fiendful fortune may exhort the wise

Only to wonder at unlawful things,

Whose deepness doth entice such forward wits

To practise more than heavenly power permits.

Christopher Marlowe, "Dr. Faustus" (before 1593)

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The author holds a faculty appointment at Pennsylvania State University. Notice is hereby given that irrespective of that appointment, this blog serves as a purely personal enterprise created to serve as an independent site focusing on issues of general concern to the public. The views and opinions expressed here are those of its author. This site is neither affiliated with nor does it in any way state, reflect, or represent the views of Pennsylvania State University or any of its entities, units or affiliates.

Globalization Law and Policy Series from Ashgate Publishing

About the Series:

Globalization: Law and Policy will include an integrated body
of scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

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and Professor of Law, Professor of International Affairs
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