This is a complex story that took a fair bit of reading to follow all the twists and turns. It involves the story of Bo Xilai
, the a top Chinese politician at the heart of a somewhat crazy scandal in China
that resulted in his ouster from the Communist Party, along with accusations of his wife's involvement in the murder of a British businessman, Neil Heywood, following apparent threats to to expose
a questionable money trail. One of the first publications to report on all of this was a site called Boxun News
(site is published in Chinese), published by Weican Null Meng, who lives in the US, but covers political scandals in China.
One of the other things that Meng reported concerned world-famous actress Zhang Ziyi
, who has starred in multiple films successful in the West, including Crouching Tiger, Hidden Dragon
, Rush Hour 2
, House of Flying Daggers
and Memoirs of a Geisha
. Ziyi got upset after Boxun (and others) reported that she had been linked romantically to Bo Xilai and other high level Communist Party officials in China -- and that those officials gave her massive amounts of money. Ziyi then sued Boxun, Meng and China Free Press
and went on a press campaign saying that the stories called her a "six figure prostitute."
There have been some oddities with the lawsuit -- such as the inclusion of China Free Press. While Ziyi claims that CFP is one and the same as Boxun, CFP filed a response to the lawsuit noting that it's an entirely different operation, and that while it hosts
Boxun News -- as it does for a number of other Chinese citizen journalist sites -- it has nothing to do with the site, and any such claims should be barred by Section 230 of the CDA. The fact that Ziyi's lawyers were unable to figure out that these are two different sites, where one is just hosting the other, suggests some weak due diligence heading into this case.
Meanwhile, Meng, the guy who actually published the report, is standing by it, claiming multiple sources confirmed it, and citing his track record in publishing news that later turned out to be true (including some of the other reports about Xilai). He hit back (represented by Marc Randazza) claiming that this is nothing more than a SLAPP suit designed to both silence him and expose his sources. As the case has gone on, Ziyi's lawyers have continued to seek more and more information in the process of discovery while also trying to block one of Meng's expert witnesses. The most recent move, however, is that Ziyi has refused to put up a bond, as required under California law, for the potential that she might owe money should the anti-SLAPP motion prevail. Meng is asking her to put up $200,000
for legal fees accrued, and uses the motion to argue, again, that this is a SLAPP suit. The key arguments are that the defamation claim has no chance of succeeding because they're both exaggerated beyond what Meng actually wrote and because he did not make the statements maliciously, as is required for defamation of a public figure (which Ziyi obviously is).
With respect to the Plaintiff being able to prove the statements false, the
Plaintiff has a couple of insurmountable problems. First and foremost, the case
boils down to two allegedly defamatory statements.
1) The Plaintiff (falsely) claims that the Defendant called her a “prostitute.”
... However, the record clearly reflects that the Defendant did no such
thing.... In fact, the claim that she is a “prostitute” seems to have only
been uttered by third parties, including Plaintiff's own counsel....
2) The Defendant (correctly) claims that Plaintiff was not permitted to leave
China during a certain period of time....
With respect to the first statement, the record clearly reflects that this
interpretation of the defendants’ statements is a fabrication. The Defendant, at
worst, implied that Zhang Ziyi had wealthy boyfriends who lavished her with
expensive gifts.... Given her public persona, and
the fact that she is frequently unabashed about sharing her affections with wealthy
paramour after wealthy paramour, this is almost certainly a given. Zhang Ziyi’s
conduct could be less-than-charitably described as “gold-digging” ..., but it is a far
cry from “prostitution.” If Ms. Ziyi intends to prove that she has never received
any largesse or gifts from her series of wealthy boyfriends, then this will be an
interesting trial to say the least.
As to the second statement, one must wonder what would be defamatory
about claiming that a Chinese national found her travel privileges to be temporarily
restricted. Given that the Chinese government is one of the most totalitarian
regimes in the world, anyone prohibited from leaving the country would find
themselves in good company, if not among some international heroes.... Even if the statement was held to have a defamatory
meaning, and the defendant uttered the statements complained of, the plaintiff
would still run into a legal impossibility – overcoming the actual malice standard
in order for her case to survive.
The filing goes on to point out that Meng followed standard journalistic practices, found multiple sources, and even held back some of the more "salacious" details he could not confirm. Multiple journalism experts have supported his arguments that he followed accepted journalistic practices (or went beyond that). All of which will make it crazy difficult to argue that the report was published out of malice.
The filing also argues that Ziyi seems to be pursuing this case in a process designed to bankrupt Meng, while refusing to put up the required bond herself:
When the defendant moved to strike this case under CCP 425.16, the
Plaintiff immediately took steps to start an expensive and relentless discovery
campaign. Mr. Meng was deposed three times. Mr. Meng produced reams of
documents. The Plaintiff conducted three expert depositions. Throughout all of
this, the Plaintiff has not produced one shred of evidence that Meng’s statements
were false. Even if she were to somehow do so, mere falsity is not enough: she
must also prove that Meng harbored serious doubts about the accuracy of his
published information and recklessly disregarded the truth. Nevertheless, the
Plaintiff’s discovery campaign has done nothing more than create a rock-solid
record that the Plaintiff could never overcome her legal burden. The Plaintiff has,
in an effort to run up the bill on the Defendant, managed to disprove her own case
so solidly, that the “reasonable possibility” standard was left behind long ago.
Meng argues that even if he won a SLAPP suit against Ziyi, she might never pay the attorneys fees, since she does not live in the US.
Plaintiff Zhang Ziyi is an international celebrity with means that far exceed those
of Defendant Watson Meng.... A $200,000 bond will not deprive her of
access to the courts, and will likely not even cover the costs of litigation. The
Plaintiff does not reside in California, and in fact, resides in a country where the
Defendant is persona non grata.... If this court were to grant a fee
award to Defendant, he would not likely find justice if he attempted to enforce that
award in a country whose government considers him to be a thorn in their side, and
where there is no independent judiciary....
Because she does not reside in the State of California, Plaintiff should be
required to post an undertaking so that Meng may be assured of recouping his fees
and costs following the hearing on the Motion to Strike.... The
purpose of Section 1030 is to ensure that a fee award against an out of state
plaintiff is not difficult to collect, or fully illusory. The facts of this particular case
are probably the most extreme example of the necessity of an undertaking under
Section 1030. The Plaintiff is a mega-millionaire with unlimited means; the
defendant is all but impecunious; and the defendant would have no reasonable way
to collect a fee award, as the plaintiff would be able to simply hide behind a border
that the defendant cannot cross. If there was a case that called for a 1030
undertaking, this is it.
The filing also notes that Randazza offered Ziyi's lawyer the opportunity to put forth a different bond amount, but they refused to accept the idea of putting up any money at all, which the filing argues is another sign that they know this is likely to be dismissed under California's anti-SLAPP law.
It will be fascinating to see how this all shakes out, but in the meantime, it seems like yet another case where anti-SLAPP laws may be quite helpful in stopping a lawsuit that has less to do with an actual case of defamation, and plenty to do with trying to make life difficult for a reporter people don't like.