Defamation, Part 3: The Conclusion

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Defamation, Part 3 The Conclusion

• JMSC 6022 Media Law
• Doreen Weisenhaus
• Assistant Professor
• Oct. 22, 2002

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Hong Kong Libel Law

• Controlled by
• Common law
• Defamation Ordinance

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Defamation ordinance

• Regulates particular elements. It is NOT a code.
  You do NOT bring a suit under the defamation
  ordinance. It
• Clarifies certain situations as libel (e.g.,
  broadcasting)
• Adds to situations in which slander is actionable
  (e.g., womans chastity)
• Slightly expands justification, fair comment
• Creates certain qualified privilege situations

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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?
• (note role of judge v. jury Oriental v. Next)

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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

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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?

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Is it libel?

• Internet? Film? Soundtrack? Email? Broadcasting?
  Statue? Telephone conversation? Bulletin board?
• Doreen is ugly.
• Doreen is a liar.
• All Hong Kong 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

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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?

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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 but
  news of public interest? (Reynolds) What about
  politics?
• 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

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U.S. comparison

• Became part of U.S. common law early on but never
  as rigorously applied as in U.K.
• U.S. 2 advantages
• 1) 1st Amendment invoked to argue balance must
  favor freedom of press and
• 2) NO provision in U.S. Constitution guaranteeing
  protection of reputation

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Some differences...

• Requirement of fault Plaintiff must show fault
  by reporter. Level of fault depends on person
  suing.
• If public figure clear and convincing evidence
  that publication was made with actual malice.
  (NYT v. Sullivan 1964).
• If private figure negligence standard, whether
  defendant should have known through reasonable
  care that statement was false

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Some overlap

• Opinion privilege (Milkovich 1990)
• Does statement have precise core of meaning?
• Is statement verifiable?
• Would textual context of statement influence
  average reader to infer factual content?
• Protected calling a doctor a rotten apple or a
  quack, a sports commentator a liar, a nudist
  pageant as pornography.
• What about alcoholic? Depends.

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China and defamation

• Article 38 of PRC Constitution The personal
  dignity of citizensis inviolable. Insult, libel,
  false accusation or false incrimination directed
  against citizens by any means is prohibited.
• 1986 General Principles of Civil Law, Article 101
  (legal protection), Article 120 (injunctions,
  apology, damages)
• 1988 Supreme Peoples Courts judicial
  explanation of General Principles
• 1993 Reply SPC guidelines that established the
  law on civil defamation.

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Some differences

• Can libel the dead
• Can be defamatory if used to insult bastard,
  shameless, mad dog, monster, Mickey
  Mouse, human scum (police)
• Can be defamatory even if true.
• Not publication if secret journal
• Article 41 the right to criticize. A
  journalistic privilege similar to NYT v. Sullivan?

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Defamation

• The end?