Freedom of Expression

1
Freedom of Expression

• What is it?
• Freedom of Expression?
• Freedom of Speech?
• Freedom of the Press?
• Freedom of Information?

2
Classical Arguments

• Promotes discovery of truth
• Promotes political participation (by being better
  informed)
• Maintains social stability (information allows
  problems to be addressed quickly)
• Provides safety valve (more fulfillment)
• Provides crucial check on government

3
John Milton in 1644

• Truth is strong and will prevail
• Seeking to know truth to improve ones
  understanding has a particular priority
• Exposure to falsity is valuable to appreciation
  of truth

4
Freedom not absolute.

• In HK, rights of community often in conflict with
  rights to publish/broadcast
• Media outlets licensed
• Restrictions on court reporting
• No Freedom of Information Act
• Official Secrets Ordinance
• Prevention of Bribery Ordinance
• Control of Obscene and Indecent Articles Ordinance

5
Legal Milestones for Freedom of Expression in
Hong Kong

• 150 years under colonial rule
• 1984 Sino-British Joint Declaration
• 1991 Bill of Rights Ordinance (Art. 16)
• first time various fundamental rights laid
  down and enforceable by courts
• 1997 Basic Law in effect (Art. 27, 39)

6
Article 27 of Basic Law v. Article 16 of BORO

• 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.

7
Rule of Law

• Ensured by the Basic Law
• Principle of legality
• Principle of equality
• Transparent, published, predictable
• Impartially administered

8
Common Law

• Basic Law (Art. 84) says H.K. courts may refer
  to common law precedents of other common law
  jurisdictions.
• English common law system
• judge-made law, interpretation and precedent
• incremental, not like enacted law or legislation

9
Sources of Law on Freedom of Expression in Hong
Kong

• Common law
• Constitutional law (Basic Law)
• Statutory law (Bill of Rights Ordinance)
• International treaties and conventions (ICCPR)
• Case law that looks at all of the above

10
Structure of Courts

• District Court civil, monetary claims up to
  600,000 some criminal matters but not murder or
  rape no jury maximum 7 years imprisonment
• High Court Court of First Instance (civil and
  serious criminal, juries) and Court of Appeal
  (from CFI, DC, various tribunals)
• Court of Final Appeal (highest court, binding on
  all HK courts)

11
Competing Interests

• Right to fair trial
• BL Art. 87 Anyone who is lawfully arrested
  shall have the right to a fair trial by the
  judicial organs without delay and shall be
  presumed innocent until convicted by the judicial
  organs.

12
Fair trial

• BORO Art. 10 the press and the public may be
  excluded from all or part of a trial for reasons
  of morals, public order or national security...or
  when the interest of the private lives of the
  parties so requires, or to the extent strictly
  necessary in the opinion of the court in special
  circumstances where publicity would prejudice the
  interests of justice, but any judgment
  renderedshall be made public except where the
  interest of juvenile persons requires, the
  proceedings concern matrimonial disputes or the
  guardianship of children.

13
More Competing Interests...

• Contempt of court
• Governments right to conduct criminal
  investigations
• Right of privacy?
• Right to reputation

14
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.

15
Libel

• Courts began to recognize in Europe in 16th
  century
• Part of U.S. common law early on but never as
  rigorously applied as in U.K.
• U.S. -- 2 advantages 1st Amendment invoked to
  argue balance must favor freedom of pressNO
  provision in U.S. Constitution guaranteeing
  protection of reputation

16
Hong Kong Libel Law

• Controlled by
• 1) Common law
• 2) Defamation Ordinance of Hong Kong

17
Defamation Ordinance

• Regulates particular elements. It is NOT a code.
  You do not bring a suit under the Defamation
  Ordinance. It
• clarifies that certain situations are libel
  (e.g. broadcasting)
• adds to situations in which slander is actionable
  per se (e.g., woman)
• slightly expands justification, fair comment
• creates certain qualified privilege situations

18
3 Elements in Defamation

• 1) Defamatory statement.
• 2) Identification of Plaintiff
• 3) Publication of statement

19
A defamatory statement.

• is false and derogatory in such a way as to
  expose the person to hatred, ridicule or contempt
• lowers the reputation in the estimation of the
  reasonable person -- right-thinking member of
  society
• is based on natural and ordinary meaning

20
A plaintiff is identified when...

• a third party understands who the statement
  refers to.
• Test would reasonable persons believe that the
  words refer to the plaintiff?
• It does NOT mean he must be mentioned by name

21
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.

22
3 Defenses to Defamation

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

23
Justification, or truth

• The statement was true or substantially true
• Burden on defendant to prove the sting of libel
• Malice irrelevant

24
Fair Comment

• Statement was true or substantially true
• Burden on defendant to prove the truth of the
  sting of libel
• Malice is relevant but redefined after CFA ruling
  in Albert Cheng case

25
Privilege

• Absolute statements made in legislatures and
  courts, fair and accurate reporting of court
  proceedings (contemporaneous)
• Qualified
• fair and accurate reporting of legislature
• certain exempted reports
• publication under legal, moral or social duty?

26
Remedies

• 1) Damages
• general libel, no proof of actual harm
• special slander, additional libel damages
• exemplary to punish
• 2) Injunction
• interlocutory
• permanent