DEFAMATION Ludwig Ng, Partner, ONC Lawyers 柯伍陳律師事務所, 伍兆榮律師 18 February 2006
2 topics of Defamation Defences to defamation actions Damages assessment
Topic 1: Defences to Defamation Action Justification Fair Comment Privilege Amend and payment into Court (for newspaper) Unintentional Defamation
Justification In defamation action, P does not need to prove defamatory statement is untrue The burden is on D to prove that what he said is true Need to be 100% true? Not really section 26 Defamation Ordinance
Section 26 Defamation Ordinance:- In an action for libel or slander in respect of words containing 2 or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.
Fair Comment The leading case Albert Cheng v Paul Tse FACV 12/2000 Mr. Au Wing Cheung detained in the Philippines for alleged drug offences. Both Mr. Cheng and Mr. Tse participated in the rescue. Later in his radio show, Cheng commented that Tse should not have advised Mr. Au not to make a claim against his employer. Tse was being unethical, unprofessional and in a position of conflict of interest (to Au and to the tourism industry). Au had been subject to threats and intimidation by Tse and others. Is Cheng guilty? What are the factors for consideration?
Fair Comment 5 Objective Requirements 1 Subjective Requirement
Objective Requirement 1 THE COMMENT MUST BE ON A MATTER OF PUBLIC INTEREST What is a matter of public interest? The modern approach of the Court gives it a wide meaning: Whenever a matter is such as to affect people at large, so that they may be legitimately interested in or concerned at what is going on or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment. per Lord Denning M.R., London Artists v Littler [1969] 2 Q.B. 133 C.A. Note the key word: legitimate
Objective Requirement 1 Public interest is a fluid concept subject to change: To a very large extent, whether public interest is determined by value judgement, by the individual perception of the tribunal charged with the task of making the decision, and the current mores and attitudes Green v Schneller [2000] NSWSC 548
Objective Requirement 1 What about film reviews? What about criticism of an artists performance? His/her private lives? The balance between Freedom of Expression v Privacy Discussion: To Man Chak case
Objective Requirement 2 COMMENT, NOT FACT Mr. T is a shameless man Comment? Fact? Mr. X is being shameless in trying to seek reelection Comment? Fact?
Objective Requirement 3 THE COMMENT MUST BE BASED ON FACTS WHICH ARE TRUE (OR PRIVILEGED) Must it be 100% based on correct factual statements?
Objective Requirement 3 Illustration: Eastern Express Publisher Limited v Mo Man Ching FACV 5/1999 "Uh 法律吓, 你傳媒梗係要守法嘅啦, 咁但係吓吓吓吓人地即嘅係咁倚提到吓你, 你都話好唔滿意, 話要告你, 咁即係好似想嚇人叫人收聲咁喎 " "Uh, the law, you media must abide by the law, but if every time other people mention about you only incidentally you then say you are not satisfied and want to sue, this is akin to frightening people into keeping their mouths shut". What is meant by 吓吓? Contrast the views of the High Court, the Court of Appeal, and the Court of Final Appeal
Objective Requirement 4 THE COMMENT MUST MENTION THE FACTUAL BASIS (So that the reader would be in a position to judge for himself whether the comment was well founded)
Objective Requirement 5 THE COMMENT MUST BE ONE WHICH COULD HAVE BEEN MADE BY AN HONEST PERSON (though he may be very prejudiced)
The Subjective Requirement - Lack of Malice Even if all 5 Objective Requirements are satisfied, the defence would fail if the comment was made with malice The key issue in this case, and in all fair comment cases, is what is meant by malice
The Subjective Requirement - Lack of Malice Tse claimed that Cheng s comments were actuated by malice 1. He knew his comments were untrue 2. He was reckless as to whether the comments were true or false 3. He made the comments with the following motives: - to persuade Au to pursue a claim against his employer - to pressurize the employer to pay compensation - to gratify their animosity against Tse - to belittle the efforts of Tse in the rescue of Au 4. To raise a controversy and arouse the audience s interest in continuing to listen to the talk show
The Subjective Requirement - Lack of Malice Issue: which of these motives are relevant? Answer: only 1 and 2 Rationale: [almost] no one made comments dispassionately The traditional terminology of fair comment should be changed to honest comment
Privilege Statutory - based on sections 13 and 14 of Defamation Ordinance Common Law - based on case law - leading case: Reynolds v Times Newspaper [1999] 4 All ER 609
Section 13 Defamation Ordinance:- A fair and accurate report in any newspaper or broadcast of proceedings publicly heard before any court shall, if published contemporaneously with such proceedings, be privileged: Provided that nothing in this section shall authorize the publication of any blasphemous or indecent matter. Note: This is absolute privilege. The publisher has a defence even if he has malice.
Section 14 Defamation Ordinance:- (1) Subject to the provisions of this section, the publication in a newspaper or the broadcasting of any such report or other matter as is mentioned in the schedule shall be privileged unless the publication is proved to be made with malice.
Section 14 Defamation Ordinance:- (2) In an action for libel in respect of the publication of any such report or matter as is mentioned in Part II of the Schedule, the provisions of this section shall not be a defence if it is proved that the defendant has been requested by the plaintiff to publish in the manner in which the original publication was made a reasonable letter or statement by way of explanation or contradiction, and has refused or neglected to do so, or has done so in a manner not adequate or not reasonable having regard to all the circumstances.
Section 14 Defamation Ordinance:- (3) Nothing in this section shall be construed as protecting the publication of any matter the publication of which is prohibited by law, or of any matter which is not of public concern and the publication of which is not for the public benefit.
Section 14 Defamation Ordinance:- Important Note The meaning of malice in the context of Privilege is different from that in the context of Fair Comment since the Albert Cheng case In context of Fair Comment: malice = dishonest, the defendant not believing in what he said In context of Privilege: malice = ulterior motive, the defendant publishes the statement with intent to harm the plaintiff
Schedule to the Defamation Ordinance PART I STATEMENTS PRIVILEGED WITHOUT EXPLANATION OR CONTRADICTION 1. A fair and accurate report of any proceedings in public of the legislature of any part of the Commonwealth outside Hong Kong. 2. A fair and accurate report of any proceedings in public of an international organization of which the Government of Hong Kong or Her Majesty's Government in the United Kingdom is a member, or of any international conference to which the Government of Hong Kong or Her Majesty's Government in the United Kingdom sends a representative.
Schedule to the Defamation Ordinance PART I STATEMENTS PRIVILEGED WITHOUT EXPLANATION OR CONTRADICTION 3. A fair and accurate report of any proceedings in public of an international court. 4. A fair and accurate report of any proceedings before a court exercising jurisdiction throughout any part of the Commonwealth outside Hong Kong or of any proceedings before a court-martial held outside Hong Kong under the Naval Discipline Act, the Army Act or the Air Force Act.
Schedule to the Defamation Ordinance PART I STATEMENTS PRIVILEGED WITHOUT EXPLANATION OR CONTRADICTION 5. A fair and accurate report of any proceedings in public of a body or person appointed to hold a public inquiry by the Government or legislature of any part of the Commonwealth outside Hong Kong. 6. A fair and accurate copy of or extract from any register kept in pursuance of any Ordinance which is open to inspection by the public, or of any other document which is required by the law of Hong Kong to be open to inspection by the public. 7. A notice or advertisement published by or on the authority of any court within Hong Kong or any judge or officer of such a court.
Schedule to the Defamation Ordinance PART II STATEMENTS PRIVILEGED SUBJECT TO EXPLANATION OR CONTRADICTION 8. A fair and accurate report of the findings or decision of any of the following associations, or of any committee or governing body thereof, that is to say- (a) an association formed in Hong Kong for the purpose of promoting or encouraging the exercise of or interest in any art, science, religion or learning, and empowered by its constitution to exercise control over or adjudicate upon matters of interest or concern to the association, or the actions or conduct of any persons subject to such control or adjudication;
Schedule to the Defamation Ordinance PART II STATEMENTS PRIVILEGED SUBJECT TO EXPLANATION OR CONTRADICTION (b) an association formed in Hong Kong for the purpose of promoting or safeguarding the interests of any trade, business, industry or profession, or of the persons carrying on or engaged in any trade, business, industry or profession, and empowered by its constitution to exercise control over or adjudicate upon matters connected with the trade, business, industry or profession, or the actions or conduct of those persons;
Schedule to the Defamation Ordinance PART II STATEMENTS PRIVILEGED SUBJECT TO EXPLANATION OR CONTRADICTION (c) an association formed in Hong Kong for the purpose of promoting or safeguarding the interests of any game, sport or pastime to the playing or exercise of which members of the public are invited or admitted, and empowered by its constitution to exercise control over or adjudicate upon persons connected with or taking part in the game, sport or pastime, being a finding or decision relating to a person who is a member of or is subject by virtue of any contract to the control of the association.
Schedule to the Defamation Ordinance PART II STATEMENTS PRIVILEGED SUBJECT TO EXPLANATION OR CONTRADICTION 9. A fair and accurate report of the proceedings at any public meeting held in Hong Kong, that is to say, a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of any matter of public concern, whether the admission to the meeting is general or restricted.
Schedule to the Defamation Ordinance PART II STATEMENTS PRIVILEGED SUBJECT TO EXPLANATION OR CONTRADICTION 10. A fair and accurate report of the proceedings at any meeting or sitting in any part of Hong Kong of- (a) any body, board or authority formed or constituted under the provisions of any Ordinance or of any committee appointed by such body, board or authority; (c) any commission, tribunal, committee or person appointed for the purposes of any inquiry by Letters Patent, Act of Parliament, Ordinance, by Her Majesty, by the Governor or by the head of any department of Government; (d) any other tribunal, board, committee or body constituted by or under, and exercising functions under, an Ordinance, not being a meeting or sitting admission to which is denied to representatives of newspapers and other members of the public.
Schedule to the Defamation Ordinance PART II STATEMENTS PRIVILEGED SUBJECT TO EXPLANATION OR CONTRADICTION 11. A fair and accurate report of the proceedings at a general meeting of any company or association constituted, registered or certified by or under any Ordinance or Act of Parliament or incorporated by Royal Charter, not being a private company within the meaning of the Companies Ordinance, Chapter 32. 12. A copy or fair and accurate report or summary of any notice or other matter issued for the information of the public by or on behalf of any Government department, or by or on behalf of the Commissioner of Police.
Schedule to the Defamation Ordinance PART II STATEMENTS PRIVILEGED SUBJECT TO EXPLANATION OR CONTRADICTION 13. A copy or fair and accurate report or summary of any notice or other matter issued for the information of the public by or on behalf of the Consumer Council. 14. A copy or fair and accurate report or summary of any report made or published under section 16 or 16A of The Ombudsman Ordinance (Cap 397). 15. A copy of a fair and accurate report or summary of any report prepared and supplied for the purposes of section 30 of the Mandatory Provident Fund Schemes Ordinance (Cap 485) or prepared and published under section 32 of that Ordinance.
Common Law Privilege Traditional formulation: an occasion where the person who makes the communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. The reciprocity is essential per Lord Atkinson in Adam v Ward [1917] AC 309 e.g. Senior management discussing performance of staff members e.g. Ex-employer giving reference letters
Common Law Privilege Development after Reynolds: The essence of this defence lies in the law s recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. That is the end the law is concerned to attain. The protection afforded to the maker of, the statement is the means by which the law seeks to achieve that end. (Gatley, para 14.87)
Common Law Privilege In applying the defence in public media cases, the following factors (non-exhaustive) will be considered: 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subjectmatter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information.
Common Law Privilege In applying the defence in public media cases, the following factors (non-exhaustive) will be considered: 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not posses or have not disclosed. An approach to the plaintiff will not always be necessary.
Common Law Privilege In applying the defence in public media cases, the following factors (non-exhaustive) will be considered: 8. Whether the article contained the gist of the plaintiff s side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing.
Amend and Payment into Court Section 4 Defamation Ordinance:- In an action for a libel contained in any newspaper it shall be competent to the defendant to set up as a defence that the libel was inserted in the newspaper without actual malice and without gross negligence, and that before the commencement of the action, or at the earliest opportunity afterwards, he inserted in the newspaper a full apology for the libel, or if the newspaper in which the libel appeared is ordinarily published at intervals exceeding 1 week, had offered to publish the said apology in any newspaper to be selected by the plaintiff in the action: and to such defence to the action it shall be competent to the plaintiff to reply generally denying the whole of such defence: Provided that it shall not be competent to any defendant in such action to set up any defence as aforesaid without at the same time making a payment of money into court by way of amends, and every such defence so filed without such payment into court shall be deemed a nullity and may be treated as such by the plaintiff in the action.
Unintentional Defamation Section 25 Defamation Ordinance:- (1) A person who has published words alleged to be defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person, make an offer of amends under this section; and in any such case- (a) if the offer is accepted by the party aggrieved and is duly performed, no proceedings for libel or slander shall be taken or continued by that party against the person making the offer in respect of the publication in question (but without prejudice to any cause of action against any other person jointly responsible for that publication); (b) if the offer is not accepted by the party aggrieved, then, except as otherwise provided by this section, it shall be a defence, in any proceedings by him for libel or slander against the person making the offer in respect of the publication in question, to prove that the words complained of were published by the defendant innocently in relation to the plaintiff and that the offer was made as soon as practicable after the defendant received notice that they were or might be defamatory of the plaintiff, and has not been withdrawn.
Topic 2: Damages Assessment General Damages Special Damages Aggravated Damages Exemplary Damages
General Damages The law will presume some damage will flow in the ordinary course of things from the mere invasion of [the plaintiff's] absolute right to reputation, and he is entitled to such general damages as the court may properly award, although he neither pleads nor proves any actual damage. Para. 26.27 of Gatley
The purpose of general damages is to restore the plaintiff, as far as money can do so, to the position he would have been in if the tort had not been committed : see Hung Yuen Chan Robert v. Hong Kong Standard [1996] 4 H.K.C. 519, 533 and they must be sufficient to publicly and demonstratively and absolutely vindicate the plaintiff and to compensate for seriously injured feelings : see Cheung Ng Sheong Steven v. Eastweek Publisher Ltd [1995] 3 H.K.C. 601
Hence, factors to be considered include Plaintiff s social status Seriousness of the allegations The degree of publication The Defendant s conduct from publication up to trial Any apology
The amount of award of general damages must be balanced against the need to protect freedom of information Cheung Ng Sheong case award of $2.4 million by jury set aside by Court of Appeal Oriental Group cases general damages $80,000 Paul Tse case - $80,000
However, very substantial amounts were awarded in Jessie Chu case HCA 17103/1998 Project Hope case HCA 6206/1994 Robert Chan case [1996] 4 HKC 519
$3 million award in Jessie Chu case Special features serious libel solicitor absconding with client money wide circulation a popular Chinese newspaper gross negligence failure to verify information (but no malice) vulnerable plaintiff a pregnant woman with a medical history, result in pre-term baby, need to seek psychiatric treatment plaintiff s status a lawyer Note that the defendant had already published an apology and paid $1 million into court
$3.5 million award in Project Hope case Special features serious libel with inflammatory wordings wide circulation 150,000 article appeared as cover stories, given great prominence defendants have malice the reports did not accord with tape recorded interview plaintiff s status a sizable charity
Special Damages = actual quantifiable loss flowing from the defamation However, where the plaintiff claims to have suffered any injury going beyond the normal damages which is presumed to follow... he must give particulars... and Where the plaintiff claims to have suffered financial loss, he must allege such damage, including a general falling-off of business, with reasonable particularity.... para. 26.28 and 26.29 of Gatley
Aggravated Damages Focus on defendant s conduct - usually lumped together with general damages
Exemplary Damages Exemplary damages are intended to punish the defendant for the wilful commission of a tort or to teach him that tort does not pay. They are not, even in an attenuated sense, concerned with the compensation of the plaintiff". In the context of defamation, 2 conditions must be satisfied before such damages can be considered:- (a) the defendant either knew the defamatory statements were untrue or was reckless as to whether they were true; (b) the defendant must have acted in the hope or expectation of material gain. The mere fact that the defendant is engaged in a profit-making activity, such as publication of a newspaper or a television show, is not of itself sufficient Gatley para 9.15-17 No case record in HK for exemplary damages
IMPORTANT The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
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