Don’t worry, no in-depth technical legal analysis here. Just a couple of simple questions about what we do/do not want the police to be doing in cases of defamation.

There have been a couple of well publicized recent cases of journalists being tossed in jail by overzealous cops/prosecutors for publishing so-called defamatory reports about the activities of local business people. That sparked quite an outrage, and since that time, new rules have been promulgated by the government to make it more difficult for local prosecutorial authorities to abuse their discretion.

This is all well and good, but this story gives me pause:

Police in Inner Mongolia have launched an investigation into dairy producer China Mengniu Dairy for alleged slander against its major rival, Inner Mongolia Yili Industrial Group, according to an internal source from the Hohhot public security bureau.

Three people from Beijing BossePR Consulting Co., a company hired by Mengniu to draft and conduct the defamation, have been rumored to be detained by police and a director of Mengniu’s child dairy department, An Yong, has also been arrested.

The Hohhot police source confirmed with Caixin that the case has been filed with the local public security bureau but did not provide more information on the detentions.

Caixin obtained a copy of a draft plan that aimed to stir public fears over product safety against its rivals a supposed addition of the chemical, docosahexaenoic acid (DHA). A source close to the situation said that the document was found by police when they searched the office of BossePR.

According to the document, an Internet campaign named the “731 Plan,”was to be conducted for up to ten days at the end of last July, and included the use of online articles written by fake consumers and fraudulent blogs in order to trigger public fears over the product safety of rivals. The total budget of the campaign was 250,000 yuan.

OK, what do we have here? A dirty tricks campaign, hatched between a company and its PR firm against a competitor. Dastardly stuff, and certainly actionable by the authorities. Should this sort of defamation rise to the level of criminal act? If the answer is yes, how does that effect other kinds of defamation cases?

Yes, this campaign would have involved public fears of food contamination, a hot button issue these days. So there is a “public order” element to this, something not taken lightly by the PSB anywhere in China.

At the end of the day, though, you have several individuals thrown in jail pending an investigation of an alleged dirty advertising campaign. Why is this a problem?

I don’t care too much about this case itself, but rather the precedent here. If this procedure is acceptable, then how do we distinguish between this sort of defamation and the kind we were dealing with earlier this year with journalists being tossed in jail after writing exposes of corrupt executives?

Remember that although this case in Inner Mongolia is easy to differentiate from one involving a journalist, a small change in the facts might make that determination a lot more difficult. Suppose that the strategy of these PR guys was to pay local journalists to plant false stories?

Same dastardly plan, same bad intent, and if a plan like this was ever put into effect, the same sort of result. However, before an exhaustive investigation, how do we distinguish this journalist’s defamatory story from a bona fide investigative piece of local corruption?

If your answer is: “That’s what the investigation is for” then I have to say hold on a moment. We are talking about hauling people off to jail and keeping them there for extended periods of time. If a local cop wanted to put the fear of God into a journalist who wrote a story he (or his friends) didn’t like, this would be a good way of instituting a chilling effect, something we want to avoid.

What’s the solution? I’d like to see the folks involved in this Mengniu case punished appropriately, but I worry that other defamation cases will continue to be dealt with as criminal, rather than civil, offenses. If we continue down this path, journalists in China will continue looking over their shoulders every time they write something negative about a powerful enterprise or individual.

Update: Imagethief has also posted his comments on the Mengniu dirty tricks campaign. Check it out here. Apparently this sort of thing is SOP for China’s dairy industry. Bleah. And you thought lawyers were bad.