3 Elements in Defamation

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3 Elements in Defamation

• 1) Defamatory statement.
• 2) Identification of Plaintiff
• 3) Publication of statement

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2 steps for a defamatory statement.

• 1) What does it mean?
• Is based on natural and ordinary meaning
  (Claudia Mo, Robert Chan)
• Not dictionary meaning, but what would ordinary
  man infer?
• loose words -- Berkoff, Mo, Chan

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2 steps for a defamatory statement.

• 2) Is it defamatory?
• Is it false and derogatory in such a way as to
  expose the person to hatred, ridicule or
  contempt? (Berkoff, China Youth)
• Does it lower the reputation in the estimation of
  the reasonable person -- right-thinking member
  of society?

4
A plaintiff is identified when...

• A third party understands who the statement
  refers to. (Claudia Mo)
• Test would reasonable persons believe that the
  words refer to the plaintiff?
• It does NOT mean he must be mentioned by name

5
A statement has been published...

• When communication has been made to more than 1
  person. In other words, a 3rd party.
• Each communication is a separate publication.
• What is the repetition rule?

6
Is it libel?

• Internet? Film? Soundtrack? Email? Broadcasting?
  Statue? Telephone conversation? Bulletin board?
• Doreen is ugly.
• Doreen is a liar.
• All journalists are liars.
• All journalists studying in JMSCs Media Law
  class are liars.
• Who can sue? Companies? SAR? JMSC? Dead person?

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3 Defenses to Defamation

• 1) Justification, or truth
• 2) Fair comment
• 3) Privilege
• a) absolute
• b) qualified
• Note also, Consent

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Justification, or truth

• The statement was true or substantially true
  (Rare to win this!! Newspaper lost this defense
  in Robert Chan. Why?)
• Burden on defendant to prove the sting of libel
• Malice irrelevant

9
Fair Comment

• Statement was true or substantially true
• Burden on defendant to prove the truth of the
  sting of libel
• Malice is relevant but redefined after CFA ruling
  in Albert Cheng case

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Fair comment, post-Albert Cheng

• 5 ingredients. A comment must
• 1) be on a matter of public interest
• 2) be recognizable as comment
• 3) based on facts which are true or protected by
  privilege
• 4) explicitly or implicitly indicate the facts
  upon which comment was made (WHY?)
• 5) be one which could have been made by an honest
  person regardless of prejudice

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Privilege

• Absolute
• Statements made in legislatures, courts
• Fair and accurate (contemporaneous) reporting of
  court proceeding , except blasphemous, indecent
  matters. Verbatim necessary? (no)
• What about a rape case?
• An old court case?
• Malice irrelevant

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Privilege

• Qualified
• Fair and accurate reporting of legislature. Does
  that cover any comments made by a Legco member?
• Certain exempted proceedings and reports. (see
  readings) Does that include press conferences?

13
Privilege

• Qualified
• Publication under legal, moral or social duty.
  Test would great mass of right-minded men in
  position of defendant have considered it their
  duty under the circumstances to make the
  communication? (Kazim, 1985)
• No general duty to report news to public.
• Must have no malice --

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Remedies

• 1) Damages
• General damages libel, no proof of actual harm
• to compensate for injured reputation and
  feelings
• Factors seriousness in regard to persons
  standing (R.Chan, S.Cheung, Berkoff, China
  Youth), prominence of article, conduct of
  defendant, apology

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Remedies

• Special damages slander, additional libel
  damages -- must prove actual harm
• Exemplary or punitive damages to punish or deter
  others, rarely granted. (Rejected in China Youth)
• where defendants conduct was calculated by him
  to make a profit for himself which may exceed the
  compensation payable to the plaintiff. (Cassell
  v. Broom 1972)

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Remedies

• 2) Injunction (granted only by judge) to
  restrain publication of libel
• interlocutory during litigation
• permanent