Media Law JMSC6022

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Media Law JMSC6022

• Defamation I The Elements
• Assistant Professor Doreen Weisenhaus
• Oct. 7, 2003

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Art. 27 of Basic Law vs. Art. 16 of Bill of
Rights Ordinance

• BL/Art. 27 Hong Kong residents shall have
  freedom of speech, of the press and of
  publication
• BORO/Art. 16 Everyone shall have the right to
  freedom of expression this right shall include
  freedom to seek, receive and impart information
  and ideas of all kinds, regardless of frontiers,
  either orally, in writing or in print, in the
  form of art, or through any other media of its
  choice.

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But what about Right to Reputation?

• BORO/Art. 16
• 3) The exercise of the rights...carries with it
  special duties and responsibilities. It may
  therefore be subject to certain restrictions, but
  these shall only be such as are provided by law
  and are necessary-(a) for respect of the rights
  or reputations of others or (b) for the
  protection of national security or of public
  order, or of public health or morals.

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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 Kongs 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.

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What is defamation?

• Damages for harm to reputation (a tort)
• Consists of libel (usually written, more
  permanent form) and slander (oral, more transient
  form)
• Why distinction important? If slander, plaintiff
  must prove special damages.
• Some exceptions If allegations are of unfitness
  for ones business calling (D.O. 23), female
  unchastity (D.O. 21), loathsome disease,
  criminal offense.

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Some defamation history

• Defamation began in 11th century, recognized in
  ecclesiastical courts.
• Slander a criminal offence in 13th century, seen
  as threat to civil order. The greater the truth
  the greater the libel Lord Chief Justice Coke.
  
• Star Chamber enforced libel laws, later
  permitted civil actions when it banned dueling.
• Courts began to recognize in Europe in 16th
  century
• Became part of US common law early but never as
  rigorously applied as UK, where seen to protect
  class system. (G. Robertson) Note, in 18th c,
  claimant had to prove that words were false and
  had caused damage. By 19th, 20th c, presumptions
  reversed
• US 2 advantages 1st Amendment invoked to argue
  balance must favor freedom of pressNo provision
  in US Constitution guaranteeing protection of
  reputation

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Hong Kong Defamation Law

• Controlled by
• 1. Common law
• 2. Defamation Ordinance
• 3. Basic Law Art. 27 freedom of speech, of the
  press and of publication (see Albert Cheng
  case)
• 4. Bill of Rights Ordinance

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Defamation Ordinance

• Regulates particular elements.
• It is NOT a code. You do not bring a suit under
  Defamation Ordinance.
• Clarifies that certain situations are libel (s.22
  broadcasting)
• Adds to situations where slander is actionable
  per se (s. 21 unchastity)
• Slightly expands some defenses like justification
• Creates certain qualified privilege situations

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Unusual features of defamation

• Jury trials (rare for civil cases in HK)
• Burden of proof
• Cause of action ends with death of plaintiff
  (contrast PRC)
• Injunction not typical, just damages later
• No legal aid

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Who can sue?

• Live individuals
• Companies (but only if statements damage business
  reputations) (e.g., Oriental)
• Other entities like charities
• Generally not public authorities (but see HK
  Polytechnic case)

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Who can be sued?

• author
• publisher
• printer
• seller
• library
• Commercial Radio case Radio station, but not
  radio hosts, found liable for comments made by
  listeners in phone-in show

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3 Elements in Defamation

• Defamatory statement
• 2) Identification of plaintiff
• 3) Publication of statement
• Think D.I.P.!

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2 steps for a defamatory statement

• 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 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 (shifting?)
• Untrue, hurtful not enough

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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 person or entity must be
  mentioned by name
• What about a group or class of individuals?

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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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What plaintiff does NOT have to show

• Intention of writer. Strict liability.
• Effect on reader (except innuendo)
• Actual harm. (unless for slander and special
  damages but more on that later)
• Innuendo Where defamatory meaning is only
  apparent to those with special knowledge.
  Plaintiff must show they were within actual
  readership.

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Reversal of burden of proof

• If plaintiff can show the 3 elements (DIP), then
  burden shifts to defendant.
• Remember, the presumption is that if these
  elements are met, then defendant will be found
  liable for defamation unless he can prevail on a
  permissible defense.