Defamation

1
Defamation

• Definition
• Source of law
• Basic Principles
• Application of principles in 2 cases

2
Definition

• Publication of a False statement about a person
  which discredits that person.
• The Law seeks to balance 2 competing interests
• Right to freedom of speech
• Right to protection of reputation

3
Source Of Law

• Defamation Ordinance
• Bill of Rights Ordinance (Article 16)
• Right to hold opinions
• Right to freedom of expression
• Restrictions
• Respect of the rights and reputation of others
• Protection of national security or public order

4
Forms of Defamation

• (1) Slander
• Not written, verbal or transient form

5
Forms of Defamation

• 2. Libel
• In permanent form, writing or printing
• Pictures
• S22 Defamation Ordinance
• Broadcasting is publication in permanent forms.
• Radio, TV, telegraph or telephone, from a
  broadcasting station

6
Who may be defamed

• An individual
• Natural or artificial(corporate body)
• Defamation must refer to plaintiff
• - by his name, position or designation
• - a reasonable man knows the statement refers to
  the plaintiff
• Statement must be published to a third party who
  understands the statement

7
Who can be sued

• Any person who creates or initiates the libel
• Printer or publisher of the libel (intentionally
  or negligently)
• Distributes, sells or lends the libelous materials

8
Defence

• Justification (truth)
• Fair Comments
• Absolute privilege
• Qualified privilege
• Consent

9
Redemdies

• Damages
• Injunction

10
Berkoff V Burchill

• Plaintiff
• Berkoff, an actor, director and writer who is
  well known for his work on stage, screen and TV
• Defendant
• A journalist and writer who wrote articles about
  cinema for the Sunday Times

11
Events

• 30 Jan 1994
• Defendant wrote a review and made a general
  reference to film directors film directors,
  from Hitchcock to Berkoff, are notoriously
  hideous-looking people

12

• 6 Nov 1994
• In her review on a film Frankenstein, she
  described a character in the film called the
  Creature. She wrote
• ..The Creature is made as a vessel for
  Waldmans brain, and rejected in disgust when it
  comes out scarred and primeval. Its a very new
  look for the Creature no bolts in the neck or
  flat-top hairdo and I think it works its a
  lot like Berkoff, only marginally
  better-looking.

13
Allegation

• The articles were defamatory
• To call a person hideously ugly would tend to
  expose him to ridicule
• Cause other people to shun or avoid Berkoff

14
Judgement

• The statements lead ordinary reasonable people
  to shun the plaintiff
• To call a person hideously ugly is defamatory

15
Relevancy

• The scope of the present application
• Definitions of defamatory
• Additional guidance from decided cases

16
Definition of Defamatory in past cases

• a publication, without justification or lawful
  excuse, which is calculated to injure the
  reputation of another, by exposing him to hatred,
  contempt or ridicule

17

• .. false statements are made which discredit a
  person without lawful excuse, and damage results
  to that person..
• .. would the words tend to lower the plaintiff
  in the estimation of right-thinking members of
  society generally?

18

• .. the statement do not impute any moral fault
  or defect of personal character. They can be
  defamatory if they impute lack of qualification,
  knowledge, skill, capacity, judgment or
  efficiency in the conduct of his trade or
  business or professional activity..

19

• .. Defamatory statement brings the plaintiff
• - into hatred, ridicule, or contempt by reason
  of some moral discredit on the plaintiff
• - be shunned and avoided
• - e.g. insane, suffer from certain diseases
• - no direct moral responsibility could be placed
  upon him

20

• .. Defamation shall consist of the publication
  to a third party of matters which affect a person
  adversely in the estimation of reasonable people
  generally

21
Conclusion

• From the collection of definitions, the
  statements are defamatory
• even though they neither impute disgraceful
  conduct to the plaintiff nor any lack of skill or
  efficiency in the conduct of his trade or
  business or professional activity,
• they hold him upon contempt, scorn or ridicule or
  tend to exclude him from society.

22

• The description that he is hideously ugly
  exposes him to ridicule, and/or alternatively,
  will cause him to be shunned or avoided.

23
The Appeal

• The Plaintiff is an actor and a person in the
  public eye
• The articles affect the plaintiffs standing
  among the public, particularly theatre-goers, and
  among casting directors
• The reaction of the ordinary reader and not the
  intention of the publisher
• The plaintiff in the public eye who makes his
  living as an actor, is capable of lowing his
  standing in the estimation of the public

24
Oriental Press V Next Magazine

• Plaintiff
• Oriental Press, the newspaper
• Defendant
• Next Magazine

25
Event

• Next Magazine published an article criticizing
  various articles in the newspaper which were
  critical of Mr Cheng Ka Fu, a Legislative
  Councillor.
• Mr Cheng was expressing his opinion about a lack
  of Government award scheme for athletes, he used
  the term unhealthy in respect of the gifts from
  commercial organizations to a Olympic gold
  medallist, Ms Lee Lai Shan

26
Allegation

• Next Magazine criticised the newspaper for
• quoted Mr Chengs use of the term unhealthy
  deliberatly out of context
• to create a basis for the newspaper to attack Mr
  Cheng
• The newspaper sued Next Magazine for libel,
• contained imputations that the newspaper had
  falsely reported the comments of Mr Cheng
• deliberately twisted the words of Mr Cheng

27
Trial Judgment

• The trial judge, without a jury
• The article in Next Magazine was defamatory but
  accepted the defence of justification.
• The action was dismissed

28
Appear by Newspaper

• The court of Appeal allowed the appear
• Ordered a new trial
• Grounds the trial failed to deal with false
  reporting

29
Appeal by Next Magazine

• Court of Final Appeal
• Court of Appeal was wrong both in law and facts

30
Conclusion

• To arrive at a single right meaning as the
  natural and ordinary meaning of the words
  complained of
• Natural and Ordinary Meaning
• words would be understood by reasonable men to
  whom they were published? And could reasonable
  men understand them as baring that meaning?

31

• Single defamatory meaning
• The meaning of the publication sued upon would
  convey to the mind of an ordinary, reasonable,
  fair-minded reader