Media Law Libel Defamation Eastweek v' Claudia Mo

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Media LawLibel/ Defamation Eastweek v. Claudia
Mo

• Dora Yammie
• September 25th 2001

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Outline of presentation

• What happened?
• What was the verdict/settlement?
• The Trial Judges decision
• The Court of Appeal - Reversal
• The Court of Final Appeal - Restoration
• Defence of fair comment
• Summary

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What happened?
Eastern Express (publisher of an English
language newspaper)
Claudia Mo Presenter of Media Watch
Libel Action
First Plaintiff
First Defendent
The Sec for Justice (on behalf of the Director
of Broadcasting)
Oriental Press Group Ltd (parent of the first
respondent)
Second Plaintiff
Second Defendent
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So.. what did Claudia Mo say? - the 1st statement
"Lets talk about a relatively popular topic
among the media. Recently everyone might notice
that solicitors' letters are flying everywhere
among the media- makes people think that whether
there is not a trend of treading (trampling) on
each other. "
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the 2nd statement
" But if every time other people mention about
you only incidentally (in a casual manner) you
then say you are not satisfied and want to sue,
this is akin to frightening people into keeping
their mouths shut."
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Who was/were responsible?

• The offending statements did not expressly refer
  to either of the two plaintiffs, but a voice-over
  segment appeared in between the statements in
  which the second plaintiff was mentioned four out
  of five times by the first defendant.

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I. The Trial Judge's Decision
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The Trial Judge's Decision
Is the 1st statement defamatory???
NO

Is the 2nd statement defamatory???
YES-

• for the last part " this is akin to frightening
  people into keeping their mouths shut"

But the plaintiffs' action was dismissed why?

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The Trial Judge's Decision
Because the judge found that the words
constituted in substance fair comment on a
matter of public interest. s 27 of the
Defamation Ordinance states "In an action for
libel or slander in respect of words consisting
partly of allegations of fact and partly of
expressions of opinion, a defence of fair
comment shall not fail by reason only that the
truth of every allegation of fact is not proved
if the expression of opinion is fair comment
having regard to such of the facts alleged or
referred to in the words complained of as are
proved. "
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II. The Court of Appeal -Reversal
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The Court of Appeal's Reversal
Is the 1st statement defamatory???
NO
Reason Natural and ordinary meaning of the word
"treading"/ "trampling"
Is the 2nd statement defamatory???
YES
WHY ?????
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The Court of Appeal's Reversal

• Reasons
• 1/ Impressionistic Approach
• the last part gave rise to a "STING"
• Intention of maker of statements
• irrelevant
• 2/ One incident alone could not be regarded as
  evidence of a persistent attitude describable by
  the words "every time". (refer to the HKET case)

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III. The Court of Final Appeal - Restoration
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Main reasons for allowing the appeal

• The reference to the second plaintiff was
  incidental and that the Court of Appeal took
  the words every time far too literally. The
  statement was in a sense rhetorical and was not
  focused on time.
• To decide the ultimate question Was the comment
  that the second plaintiff appeared to want to
  frightened people into silence fair?

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Fair Comment

• Fair comment is objective.
• The freedom of speech was constitutionally
  guaranteed by art.27 of the Basic Law. The right
  of fair comment was a most important element in
  the freedom of speech.

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Defence of fair comment

• The comment must
• Be on a matter of public interest
• Be recognizable as comment, as distinct from an
  imputation of fact
• Be based on facts which were true or protected by
  privilege
• Explicitly or implicitly indicate, at least in
  general terms, what the facts were on which the
  comment was being made and
• Be one which could have been made by an honest
  person, however prejudiced he might be, and
  however exaggerated or obstinate his views.

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The differences
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The ultimate decision

• The judge found that the supporting facts were
  true and that the second statement made by the
  first appellant was a comment which an honest
  person could have made on a matter of public
  interest.

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Just for thought - meaning of malice

• Malice is subjective.
• A plaintiff could defeat the defence of fair
  comment by proving that the comments were
  actuated by malice I.e. by prove that the
  defendant did not genuinely hold the view he
  expressed. In ordinary usage, malice carries
  connotations of spite and ill-will.

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Summary

• Ordinary people in everyday speech do not craft
  their language, nor would their listeners
  understand them in this way.
• The judge, in considering how the ordinary
  television viewer would consider the 1st
  statement, concluded that the words complained of
  indicated nothing more than a reference to a
  trend of parties in a fiercely competitive
  business environment treading on each other. This
  was not imputation of improper behaviour and the
  1st statement taken as a whole was not defamatory.

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Summary cont...

• The imputation to the 2nd statement was not
  simply that Oriental was prone to threaten legal
  proceedings whenever it was mentioned, even
  incidentally, but also that it appeared to want
  to frighten people into keeping their mouths
  shut. The judge found it would tend to lower
  oriental in the estimation of ordinary people
  viewing the television programme.

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Summary cont...

• The Court of Appeal decided that every time is
  to be taken literally therefore the comment on
  its behaviour could be said to be unfair. The
  Court of Final Appeal decided that but if every
  time were to be taken as a figure of speech
  leading to the defence of fair comment.

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Summary cont...

• Was the comment fair the judge said that it
  was cynical and even possibly prejudiced against
  the plaintiff, but it was a comment which an
  honest person could have made.