Published on January 24, 2008
Defamation and the Press in Hong Kong, Part 2: Defamation and the Press in Hong Kong, Part 2 JMSC0019 Media Law and Ethics Assistant Prof. Doreen Weisenhaus Journalism and Media Studies Centre The University of Hong Kong Nov 2007 Remember this?: Remember this? 2-step process in deciding if statement is defamatory: 2-step process in deciding if statement is defamatory Defenses to Defamation: Why do we allow?: Defenses to Defamation: Why do we allow? Truth Public policy more important than any individual reputation Public policy protects non-malicious statements Public policy protects honest statements Free speech The person who says “I didn’t publish this!” Defenses to Defamation: Defenses to Defamation 1) Justification or truth 2) Privilege a) absolute (in all circumstances) b) qualified (in some circumstances) 3) Fair comment Think JPF “Just Play Fair” Note: also, Consent, “innocent publication” Defense #1: Justification or truth: Defense #1: Justification or truth Statement was true or substantially true. Law protects reputations. If this is true, then no need to protect. Rare to win this! Why? Burden on defendant to prove that it’s true. Belief in truth is not enough! What if partially true? If it goes to the “sting” of libel, ok. (Eg., wrote someone went to prison for 3 weeks but reality was 2 weeks.) “on balance of probability” – more likely true than not true. But if serious allegation, need more convincing evidence. Malice (bad motive) irrelevant. Why? If you don’t succeed, damages increase! What if story says “It was rumored that” or “X says that…”? What is someone convicted? Defense #2: Privilege: Defense #2: Privilege Special protection. In these situations, freedom of speech is greater than protecting reputation. Generally, to get particular information from a particular source. (Facts) Defense #2: Privilege: Defense #2: Privilege Absolute: Everything protected even if person knew he was making untrue statements Legco: members should be free to speak Courts: All parties in court protected. Also, fair and accurate reporting of court proceeding (D.O. 13.1), except blasphemous, indecent matters. Must be contemporaneous. Verbatim necessary? (no) What about a rape case? An old court case? Malice irrelevant Qualified: conditional. Some protection but this is lost if improper reason – malice -- for making statement. Can be by statute or common law Typical: job references More on Qualified Privilege: More on Qualified Privilege QP under statute: Fair and accurate reporting of legislature. (D.O. 14) Does that cover any comments made by a Legco member? Certain exempted proceedings and reports like courts in other jurisdictions, meetings of bodies. Unless proved to be made with malice (intent) QP under common law Publication under legal, moral or social duty No general duty to report news to public What about news of public interest? (UK case of Reynolds, politics?) The “Reynolds Privilege”: The “Reynolds Privilege” Test under Reynolds v. Times Newspapers (2002): Even if defendant can’t prove truth, where public has right to know contents of the article because: 1) the subject matter is of public interest and 2) it is the product of responsible journalism. Defendant has burden of showing it was “responsible”. Court lists 10 points: seriousness, nature of info, source, steps taken to verify, status of info (already subject of an investigation?), did reporter try to get comment, did article have gist of plaintiff’s side, tone, circumstances of publication, including timing. HK: Cutting De Heart v. Sun News (2005) cited this defense for non-political story (consumer), even though paper didn’t contact defendant. Post-Reynolds Privilege: Jameel v. Wall Street Journal Europe: Post-Reynolds Privilege: Jameel v. Wall Street Journal Europe In landmark case in 2006, House of Lords clarified Reynolds defense (why?) Case involved Saudi billionaire businessman and his companies over article which said authorities were monitoring bank accounts of prominent Saudis in anti-terrorism efforts; story used anonymous sources. Court said if topic was sufficiently in public interest, the 10 steps were examples, not hurdles 3-part test: 1) is subject matter in public interest? 2) is inclusion of defamatory statement justifiable? (editorial judgment) 3) were steps taken to gather and publish the info responsibly and fairly? Defense #3: Fair Comment: Defense #3: Fair Comment “Fair comment on matter of public interest”: Matters in public eye should be debated freely A comment must: Be on a matter of public interest (what is that?) Be recognizable as comment. Not always easy to figure out! Based on facts which are true or protected by privilege and indicated the facts upon which comment was made (why?) Comment must be fair: Be one which could have been made by an honest person. Not whether a specific person was “honest” but what nature of comment was. Fact v. Comment?: Fact v. Comment? More fair comment: More fair comment “If every time other people mention about you only incidentally then you say you are not satisfied and want to sue, this is akin to frightening people into keeping their mouths shut.” (Underlying fact: Oriental brought a lot of lawsuits. Comment: paper was acting petty and overreacting. This is opinion and fair comment, says court in Claudia Mo case.) The end of malice?: The end of malice? In the past, like qualified privilege, a defense of fair comment will not succeed if malice. Now, Cheng case means that malice could be used only to show that person making the statement did not believe it to be true. Provided he believed it, it makes no difference if done for spite or personal benefit. Cheng v. Tse facts: In 1991 a HK tour guide, Au, was arrested in Philippines and convicted of drug trafficking. Various groups tried to get Au’s release, including his employer (advised by lawyer Paul Tse). Another group formed by Albert Cheng. During Cheng’s radio program, he made comments to his co-host that Tse had been motivated when advising Au not to claim compensation from his employers, by concern not for Au but for the interest of the travel industry and thus had acted unprofessionally and in a position of conflict. Tse said Cheng had bad motives (among other things, to belittle Tse in contrast of Cheng’s efforts) Rational for fair comment is not based on duty or protection of an interest. Its basis is the high importance of protecting and promoting freedom of comment by everyone on matters of public interest Freedom of Speech in HK, according to the CFA: Freedom of Speech in HK, according to the CFA “The freedom of speech (or the freedom of expression) is a freedom that is essential to Hong Kong’s civil society. It is constitutionally guaranteed by the Basic Law (Article 27). The right of fair comment is a most important element in the freedom of speech. In a society which greatly values the freedom of speech and safeguards it by a constitutional guarantee, it is right that the courts when considering and developing the common law should not adopt a narrow approach…” – Court of Final Appeal, Albert Cheng case, 2000. Special statutory defenses for press: Special statutory defenses for press Section 4 (DO) “Apology and amends”: Applies to newspapers only (but not free newspapers!). The paper can argue 1) no actual malice or gross negligence; 2) a full apology printed at earliest opportunity and 3) paper pays some $ into court as “amends.” If plaintiff accepts the defense, they take the $. (Chu Siu Kuk Yuen Jessie v Apple Daily 2002 tried to use defense but it failed) Section 25 (DO) “unintentional or innocent defamation”: 1) publisher did not intent statement to refer to plaintiff and did not know circumstances which would mean statement might be understood to refer to him OR 2) statement did not seem defamatory and publisher did not know circumstances which would mean statement might be understood to be defamatory. Publisher exercised all reasonable care. This defense never been used in HK Remedies: Remedies 1) Damages: General: libel, no proof of actual harm Special: slander, additional libel damages Exemplary: to punish 2) Injunction: to restrain publication of libel, granted only by judge. Rare in libel cases. General Damages: General Damages General damages: libel, no proof of actual harm To compensate for injured reputation and feelings Factors: seriousness in regard to person’s standing (R.Chan ($700,000 and $900,000), S.Cheung ($2.6 million), prominence of article, conduct of defendant, apology What if too much damages is given? $2.6 million in Steven Cheung case is too much! Special and Punitive Damages: Special and Punitive Damages Special damages: slander, additional libel damages -- must prove actual harm Exemplary or punitive damages: to punish or deter others, rarely granted. “where defendant’s conduct was calculated by him to make a profit for himself which may exceed the compensation payable to the plaintiff.” (Cassell v. Broom 1972) U.S. comparison: 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 2) NO provision in U.S. Constitution guaranteeing protection of reputation Biggest differences: Biggest differences Two biggest differences with HK: Burden of proof is opposite (US plaintiff must show fault by reporter) and HK has no distinction for private v. public figures. US has little protection for public figure. Plaintiff must show that defendant published material either knowing it to be false or recklessly without regard as to whether it is true or not. (NYT v. Sullivan, 1964) More protection for private individual. If private figure, burden still on plaintiff but he needs to show only that defendant was careless, that he should have known through reasonable care that statement was false What is public figure? China and defamation: China and defamation Article 38 of PRC Constitution: “The personal dignity of citizens…is 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 People’s Court’s judicial explanation of General Principles “1993 Reply”: SPC guidelines that established the law on civil defamation. “1998 Explanation”: provided more guidance Some differences: Some differences Can libel the dead…3 generations can sue! 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” Special Internet issues: Special Internet issues ISP liability: UK: Def. Act 1996: printers, distributors, ISPs are not liable provided they took reasonable care and did not know and had no reasonable ground to know that they were contributing to the publication of a defamatory statement… Key question: was ISP careless? US: Complete protection Hong Kong: At common law, innocent dissemination, but under Defamation Ordinance, no specific defense for electronic publication. No HK cases on this point. Also, should ISP allow anonymous postings? What about failure to remove messages posted on its website? IceRed Jurisdiction and “Download” rule: Gutnick, U.S.-based Dow Jones sued in Victoria, Australia, for article downloaded from US website. Is it libel or slander?: Is it libel or slander? Newspaper? Broadcast? Play? Email? Chat room? Telephone conversation? Bulletin board? Who can sue?: Who can sue? All teachers are liars? All JMSC teachers are liars? Companies? CEO of company? HKSAR? Political parties? Ma Lik? JMSC? Dead person? Charity? Is this defamatory?: Is this defamatory? Doreen is ugly? Doreen is a liar? Doreen fails to deliver some of her lectures? Doreen is prone to sue every time she was mentioned by someone else in a way she did not like, in order to frighten people into keeping their mouths shut about it? Doreen is gay? AIDS? Bird flu? Defamation in Hong Kong: Defamation in Hong Kong The End!! Good luck!!