ODN vs Next Magazine

1
ODN vs Next Magazine

• Good name in man and woman, dear my lord,Is the
  immediate jewel of their soulsWho steals my
  purse steals trash tis something,
  nothingTwas mine, tis his, and has been slave
  to thousandsBut he that filches of me my good
  nameRobs me of that which not enriches himAnd
  makes me poor indeed
• Shakespeare, Othello Act III Scene 3

2
History of the dispute

• Hong Kong windsurfer Lee Lai-shan wins Olympic
  gold medal at the 1996 Atlanta games.
• She gets a heros welcome upon return home,
  including many gifts from corporations.

3

• Among those giving gifts to Lee is the Oriental
  Publishing Group, publisher of Oriental Daily
  News, which gives her 1 million.
• Politicians begin to debate the amount of support
  Hong Kong gives to its athletes.

4

• On Aug 1, 1996, Democrat legislator Andrew Cheng
  Kar-foo tells a Legislative Council meeting that
  there is no government scheme to reward athletes
  like Lee. He says it is unhealthy for
  commercial organizations to be
• making lavish gifts to
• an athlete. Cheng does
• not mention ODN by
• name.

5

• In six days, ODN prints 12 articles criticizing
  Chengs statement.
• ODNs editor says the newspaper is pulling no
  punches in a full range attack on Cheng.
• Cheng and ODN have a long history, with the
  newspaper branding him the judge of pornography
  after he complained about vulgar content.

6
Enter Next Magazine.

• Next Media and OPG are fierce rivals in HK media
  war.
• Aug. 9, 1996, Next Magazine article alleges that
  a certain newspaper was framing Cheng over a
  grudge.

7

• Next Magazines article says Chengs use of the
  word unhealthy had been deliberately taken out
  of context in order to subject him to criticism.
• OPG sues Next Magazine Publishing, Next Magazine
  editor Cheung Kim-hung and two printing
  companies, alleging that the article is
  defamatory to ODN.

8
ODNs case

• Claims Cheng and the Democrats were conspiring
  against ODN by trying to boost the circulation of
  Next Medias Apple Daily, an ODN rival.
• Told court that Cheng was on a secret mission for
  Apple Daily to discredit ODN.
• Denies it was trying to frame Cheng, and says
  it was only reflecting public sentiment against
  him.

9

• ODN claimed it had been defamed when Next
  Magazine said the newspaper had falsely
  reported Chengs comments and deliberately
  twisted his words.
• The newspaper argued that the article had damaged
  its reputation, and was thus defamatory.

10
Defamation revisited.

• Defamation was well described in a 1970 British
  Columbia Court of Appeal decision called Murphy
  v. LaMarsh
• (Defamation is where) a shameful action is
  attributed to a man (he stole my purse), a
  shameful character (he is dishonest), a shameful
  course of action (he lives on the avails of
  prostitution), (or) a shameful condition (he has
  smallpox). Such words are considered defamatory
  because they tend to bring the man named into
  hatred, contempt or ridicule. The more modern
  definition (of defamation) is words tending to
  lower the plaintiff in the estimation of
  right-thinking members of society generally.

11
Next Magazines defence

• Justification what was printed was true
• Fair comment what was printed met the five
  conditions of fair comment
• Matter of public interest
• Statement was comment, not fact
• Comment was based on fact
• Facts on which comment is based are indicated
• Comment could be made by an honest person.

12

• Next also argues in court that the certain
  newspaper it referred to was not ODN.

13
Justification revisited

• Justification need not conform to the exact
  letter of the accusation, provided the gist of it
  is proved to be correct it must meet the sting
  of the libel. Erroneous details which do not
  aggravate the defamatory allegation may be
  ignored. Thus to say of someone that he has been
  convicted of travelling in a train without a
  ticket and fined 9 pounds and three weeks'
  imprisonment may be justified by establishing
  that he was sentenced to two weeks'
  imprisonment Sutherland v. Stopes 1925 AC 47
  at 79-80.

14
The judges decision

• The case was tried in High Court by Deputy Judge
  Chung without a jury.
• On Sept. 15, 1998, he found that the Next
  Magazine article was defamatory.
• But the case was dismissed as the judge accepted
  that the defence of justification and fair
  comment had been successful.

15
Judges decision

• Judge Chung ruled that Cheng had said it was
  unhealthy for Lee to receive gifts from
  commercial organizations in the absence of any
  reward scheme from the government, NOT that is
  was unhealthy for Lee to receive gifts in
  general, which is what ODN had reported in its
  articles.

16
Judges decision
Judge Chung ruled despite correctly so
understanding Mr Cheng, the plaintiff quoted his
use of the term unhealthy out of context so
that it could criticize him as if he had simply
said that it was unhealthy for Miss Lee to
receive gifts and it did so to get revenge
against him for having criticized the ODN in the
past.
17

• The main reason for the dismissal of ODNs case
  was that Next Magazines allegations were true.
  ODN was shown to have done what Next Magazine
  said it had, thus providing a defence against
  defamation.

18
If first you dont succeed

• ODP launches an appeal based on the grounds that
  Judge Chung had failed to deal with the issue of
  false reporting.
• On March 29, The Court of Appeal supported the
  ODP position in so far as it ordered a new trial.

19

• Four points on which ODPs appeal was based
• That the judge was wrong in finding that the
  article did not accuse ODN of framing Cheng
• That the judge misunderstood what the
  justification defence applied to because he did
  not consider the framing allegation
• That if the framing allegation had been upheld,
  then the fair comment defence would also fail

20

• That the articles overall tone implied ODN had
  falsely reported what Cheng had said (i.e.
  misquoted him) and that ODN had deliberately
  changed the meaning of Chengs words in order to
  subject him to criticism.

21
Appeal granted

• The Court of Appeal ordered a new trial based on
  the fourth ground, and did not address the first
  three.
• The false reporting argument is potentially
  arguable

22
Two can play at that game

• Next Magazine and the other defendants appealed
  the decision of the Court of Appeal to the Court
  of Final Appeal, saying the Court of Appeal was
  wrong both in law and on the facts.
• Next held that the issue of false reporting had
  been addressed in the original trial.

23
Court of Final Appeal

• Court finds in favour of Next Magazine et al and
  upholds the original decision dismissing ODPs
  case.
• Court says Judge Chung was correct in his
  decision.
• ODN ordered to pay costs.