Media Law JMSC6022

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Media Law JMSC6022

• Defamation II The Defenses
• Assistant Professor Doreen Weisenhaus
• October 2004

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First, a review (already??) What is defamation?

• Harm to reputation As a result of something
  written or said, people in society will think
  less of individual, company or institution, which
  has been attacked or criticized.
• Problems
• Nature of words
• Reputation in whose eyes? What sort of reputation
• What you need to know
• What must be proved by someone claiming his
  reputation has been damaged
• What defenses may exist
• What consequences

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3 Elements (what a plaintiff must show)

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

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How do you decide if statement is defamatory? 2
Steps

• 1. What does it mean?
• Is based on natural and ordinary meaning
  (Claudia Mo every time, Robert Chan sacked)
• Not dictionary meaning but what ordinary man
  would infer
• Loose words
• Has HIV (gay? drug addict? hemophiliac, unfit
  for job?)

• 2. Is it defamatory?
• Is false, derogatory in such way as to expose
  person to hatred, ridicule or contempt?
  Shunning?
• Does it lower reputation in estimation of
  reasonable person right-thinking member of
  society?
• Untrue, hurtful not enough
• What about ugly, a thief, has AIDS, smells
  bad, gay, had sex?

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What affects meaning?

• Factors could include
• Context (where published, time/place, surrounding
  words)
• Style humor? Opinion?
• Identity of speaker?
• Perception of audience? It depends
• Intention? No!

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What about the reader?

• Ordinary reader
• Not naïve
• Not unduly suspicious
• Not avid for scandal
• But may be loose things Peregrine
• Ordinary, reasonable, fair-minded
• Not looking just at headlines.

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Innuendo

• Classic CD magazine wrote that opera singer
  Jessye Norman had been trapped in swing doors on
  way to concert. When told to turn sideways to
  release herself, she said Honey, I aint got no
  sideways.
• What did it mean?
• Is it defamatory?

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Two kinds of Innuendo

• Legal or True
• Those to whom statement was published know of
  circumstances that make superficially innocent
  words defamatory.
• Mr. X and his finance (has a wife!)
• Mr Y who lives in Mong Kok was convicted. (But
  there are two Mr. Ys)
• Need special knowledge, specify particular
  persons to whom published

• Popular
• Secondary meanings
• no special knowledge
• Jessye Norman said words suggested she was
  overweight, crude in language.
• Did they?

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Is it defamatory?

• The touchstone of what is defamatory is the
  particular society in which the plaintiff was
  defamed. In HK, its what HK people would think.
  Cottrell
• Communist? Falun Gong? Eats beef?

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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? All
  journalists are liars? (elders of securities
  industries, most members of group taintedSin
  Cho Chiu v. Tin Tin)

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A statement has been published when

• When communication has been made to more than 1
  person. In other words, a 3rd party. Not just
  face to face with victim.
• What if unintended? Not media! Could you have
  foreseen that someone else would hear or read it?
• Repetition rule repeating someone elses libel
  is just as bad!
• What forms? Internet? Email? Bulletin board?

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Finally, defenses!Different bases

• 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 didnt publish this!

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Defenses to Defamation

• 1) Justification, or truth
• 2) Privilege
• a) absolute
• b) qualified
• 3) Fair comment
• Note also, Consent, innocent publication

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Justification, or truth

• The statement was true or substantially true. Law
  protects reputations. If true, no need to
  protect. (Rare to win this! Why?
• Burden on defendant to prove that its true.
  Belief in truth not enough. What if partially
  true?
• If it goes to the sting of libel, ok. E.g,
  someone went to prison for 3 weeks but instead
  only 2.
• Next mag. won in Oriental case, but newspaper in
  Robert Chan did not. Why?
• What if separate allegations?
• Burden on defendant to prove, but plaintiffs
  usually give evidence
• Malice irrelevant
• If you dont succeed, damages increase.

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Privilege

• Special protection. In these situations, freedom
  of speech is greater than protecting reputation.
  Generally, to get particular info from particular
  source.
• 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

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Privilege

• Qualified conditional. Some protection but this
  is lost if improper reason malice for making
  statement. Typical, references, reporting crime
• Qualified privilege 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. (D.O.
  14) Does that include press conferences?
  (McCartan Turkington Breen)
• Unless proved to be made with malice

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More on qualified privilege

• Qualified privilege under common law
• 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?
• Test under Reynolds (Even if defendant cant
  prove truth) where public has right to know the
  contents of the article because the subject
  matter is of public interest and it is the
  product of responsible journalism. Defendant has
  burden of showing it was responsible. Remember
  10 points established by court.
• Must have no malice --

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Reynolds 10-point test

• (1) The seriousness of the allegation the more
  serious the charge, the more the public was
  misinformed and the individual harmed if the
  allegation was not true.
• (2) The nature of the information and the extent
  to which the subject matter was a matter of
  public concern.
• (3) The source of the information.
• (4) The steps taken to verify the information.
• (5) The status of the information the allegation
  might have already been the subject of an
  investigation which commanded respect.
• (6) The urgency of the matter news was often
  perishable.
• (7) Whether comment was sought from the
  plaintiff an approach to the plaintiff would not
  always be necessary.
• (8) Whether article contained gist of plaintiff's
  side of the story.
• (9) The tone of the article
• (10) The circumstances and timing of the
  publication

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Qualified privilege, post-Reynolds

• UK Reynolds rejected Sullivan public figure
  defense and Lange v. ABC
• U.S. NYT v. Sullivan (1964) importance of free
  speech, no separate political category
• Australia Lange v. ABC (1997) QP protects
  publication of info, opinions and arguments
  concerning governmental and political matters
  subject to the publisher proving the
  reasonableness of its conduct
• New Zealand Lange v. Atkinson (2000), public has
  legitimate concern in public issues, importance
  of openness in government, responsible media
• HK? Could go any way, even US!

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Fair Comment

• Fair comment on matter of public interest
  matters in public eye should be debated freely
• Burden on defendant to prove truth of sting of
  libel
• Malice (improper motive) is relevant but
  redefined after CFA in Albert Cheng case.

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Fair comment, post-Albert Cheng

• 5 ingredients. A comment must
• Be on a matter of public interest
• Be recognizable as comment
• Based on facts which are true or protected by
  privilege
• Explicitly or implicitly indicated the facts upon
  which comment was made (why?)
• Be one which could have been made by an honest
  person regardless of prejudice

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More on fair comment

• In deciding whether something was comment, cannot
  look at earlier article.
• What is fair? Could any person, even if
  prejudiced or obstinate have held these views?
  (Cheng)
• Malice goes?
• Unprecedented? NZ honest opinion Rejected in
  BC, proposed in Ireland

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Remedies

• 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.
• Interlocutory during litigation
• Permanent

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Damages General

• ) 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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More damages

• 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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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) In other words, if public
  figure, no presumption of bad faith. Malice must
  be proved on a showing that defendant published
  material either knowing it to be false or
  recklessly without regard as to whether it is
  true or not.
• 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? Not really

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Defamation

• Next week wrap up and hypotheticals