Defamation



I. A basic knowledge of what constitutes defamation in Hong Kong

Any person who publishes (*note) defamatory matter regarding another person or an organisation in writing or by word of mouth or by conduct may be liable for defamation. Broadly speaking, there are two kinds of defamation. They are: Libel, which is the publication of defamatory matter in writing or in some other permanent form, and Slander, which is the publication of defamatory matter by word of mouth or in some transient (temporary) form.

(*Note: Under the law of defamation, the meaning of word the "publish" is not confined in printing and distribution of books/newspapers/magazines. It generally means "to make known to at least one other person or the public by any means". More explanations can be found in section III – conveying defamatory matter to others.)

The essential elements of defamation are listed below:

  1. the matter under dispute has a defamatory meaning;
  2. the defamatory matter is conveyed or communicated to a third party; and
  3. the defamatory matter refers to a particular person (or company).

The above elements of defamation will be elaborated in the other sections of this topic.

1. Is defamation by word of month normally considered to be "slander"? Why do we need to distinguish slander from libel?

Defamation by word of mouth is not always considered to be slander. Eastern Express Publisher v Claudia Mo is a case relating to television broadcasting and Tse Wai Chun Paul v Cheng Albert & Anor. is a case relating to radio broadcasting. The contents of television or radio broadcasting in these two cases are considered to be libel but not slander. The rationale behind this is that TV programmes and radio programmes would normally be recorded by their respective television/radio stations, and the general public may also record these programmes. Therefore, these programmes are considered to be a permanent form of publication and may constitute libel if their contents are proved to be defamatory (note: slander is the publication of defamatory matter by word of mouth or in some transient/temporary form).

The other important distinction between libel and slander is that libel is actionable per se (i.e. some damage to the plaintiff is presumed), whereas in the case of slander, the plaintiff has to prove damage, except for statements imputing or asserting that the plaintiff:

  1. has committed a criminal offence punishable by imprisonment;
  2. has an existing contagious/infectious disease;
  3. is unchaste or has committed adultery with any woman or girl; or
  4. is incompetent or unfit in any office, profession, trade or business.

In other words, if the subject matter is proved to be a libelous statement, or is proved to be slanderous in relation to one of the four items above, it is not necessary for the plaintiff to give evidence to the court that he or she has suffered some loss or damage (though the plaintiff may still give such evidence when the court is assessing the amount of compensation to award).

2. Which court in Hong Kong hears defamation cases? Are the verdicts of such cases made by the court judge or the jury?

The plaintiff can start legal action in either the District court (without a jury) or in the Court of First Instance of the High Court (with or without a jury). Note: The District Court only has the jurisdiction/authority to award compensation of up to HK$1 million.

In the High Court, it is not compulsory to have a jury to hear a defamation case. According to section 33A of the High Court Ordinance (Cap. 4 of the Laws of Hong Kong), either the plaintiff or the defendant in a defamation case can apply to have a jury trial if they so desire. However, the Court may refuse to grant the request for a jury trial if it is of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.

If the case is tried in the High Court with a jury, the jury will decide whether or not the defendant is guilty of defamation.

3. If I am the plaintiff or the defendant in a defamation lawsuit but I do not have the money to hire a lawyer, can I get some free legal assistance from the Government?

The "Legal Aid Scheme" (run by the Legal Aid Department of the HKSAR Government) does not cover defamation cases.

However, you may try to obtain some preliminary legal advice from the "Free Legal Advice Scheme" (run by the Duty Lawyer Service). You may also seek assistance from the "Bar Free Legal Service Scheme" (provided by the Hong Kong Bar Association). For more information regarding these two schemes, please go to another topic – Legal Aid .



II. The meaning of "defamatory"

Before considering taking legal action against an instance of defamation, the plaintiff should first be able to prove that the words or statements (including oral or written matters) under dispute are defamatory. With reference to Gatley on Libel and Slander (10 th Edition ), the meaning of the words in question may first have to be determined before we can decide whether or not the words are actually defamatory within the context in which they were used.

The meaning of the words

This refers to the meaning with which the words would be reasonably understood by ordinary people using their general knowledge and common sense. This includes inferences or implications or indirect meanings which do not require the support of extrinsic (non-fundamental) facts or special knowledge. In so doing, one has to determine the natural and ordinary meanings of the words in question.

Some words have technical or slang meanings or meanings which depend on some special knowledge possessed only by a limited number of persons and not by the general public. On occasions, ordinary words may bear some special meaning other than their natural and ordinary meaning because of some extrinsic facts or circumstances (e.g. the tone of voice or the place of distribution). If this is the case, the plaintiff has to prove to the court that the relevant words do in fact bear technical/slang/special meanings that were also known by the persons to whom the words were published.

Whether or not the meaning is defamatory

Defamation is commonly referred to as the damaging of another's’ reputation by written words or by word of mouth. The publication of those written words or spoken words:

  1. tends to lower the victim in the estimation of right-thinking member of society generally;
  2. tends to make them shun or avoid the victim;
  3. subjects the victim to public hatred, contempt or ridicule; or
  4. demeans the victim in his or her profession or business.

Whether some sort of behaviour or statement would amount to defamation is not determined by the perpetrator (i.e. the originator/defendant) but by those who have heard or seen the alleged defamatory statement or so-called reasonable persons in society who may think that you have the intention to defame another.

1. If I say or write something bad about a person, but I have no intention of defaming him, would I still be liable for defamation?

You may still be liable for defamation.

It is not important if the one who speaks or publishes the defamatory words does not have the intention to defame the other, what is important and more relevant is whether or not reasonable persons in society think or opine that the words published have defamed the other.

The law of defamation is concerned with the effect of words on ordinary people. The standard to be applied is that of right-thinking/reasonable members of society. Under this standard, if the matter published defamed a particular person, you may be liable for that defamation.

2. As different persons may have different interpretations, levels of acceptance, and sensitivity to any words that might be used, what standard is used to determine if words contain defamatory meanings? Would the context, circumstances, or the place where the words are published have any impact on whether or not the matter may be considered defamatory?

There are many words or sentences that we may use loosely in our daily communication so that a single word or sentence may have more than one meaning. However, if any of the meanings of those words is defamatory, the writer or speaker may be liable for defamation.

Whether a particular meaning is defamatory or not varies with time, place, the context in which it is used, and the state of public opinion at the time. Defamation cases tried in the Court of First Instance of the High Court may be tried by a jury. Whether the meaning of the words is defamatory would therefore be a matter for the jury to decide. If there is no jury, then the matter will be left for the judge to decide.

Sometimes, the meaning of certain statements may not be easy to identify and to understand. Certain special knowledge or understanding of a particular matter may be required in order to understand the exact intended meaning of the statement.

There was a case in the 1950s in which a man was walking along Jaffe Road in Wanchai. He entered a particular room from the street. A red light inside the room was seen from outside. A newspaper reported this incident. Although we might not think there is anything wrong with this, the man sued the newspaper. The reason he sued was that during that period of time there were lots of vice establishments in Jaffe Road, and every vice establishment there had a red light inside it. Therefore, at that time, if one was said to have gone into a room with a red light, it meant that one went there seeking a prostitute (a meaning which can be considered defamatory).

In another case in 1987 ( Li Yau Wai Eric v Genesis Films Limited), a gentleman was persuaded by a film producer to participate in the casting of a future film. The gentleman agreed and the staff of the film company took some photographs of him. Subsequently, he discovered that one of his photos had appeared in a Cantonese film twice without his consent. The film director had put the gentleman's photo on a shrine (a place for worshiping a family ancestor) in the movie so that he appeared to be a dead person. The film was screened over a thousand times in Hong Kong cinemas. That gentleman was very angry and sued the film company for using his photo for an unauthorised purpose which exposed him to ridicule, and hence, defamation. He succeeded.

In the pleadings of a case involving defamation, any particular alleged meanings of words involved must be clearly set out together with all special circumstances that each party is relying on.

3. The words in question are included in an article, and only some of the words in the article may amount to defamation. In such a case, how are the meanings of the words determined?

If the defamatory words are included in an article, you must look at the entire article and see if the article contains defamatory meanings as a whole. You cannot come to a conclusion by simply reading one sentence or one paragraph in the article. This is because at the beginning of the article, it may say that "A is a useless jerk and an immoral person" but, at the end of the article, it may say that "in fact A is a good man, those rumors saying that A is a useless jerk are incorrect". In a case like that, you cannot simply sue the author on the basis of statements at the beginning of the article without considering the content of the rest of the article.

As already mentioned, you must look at the publication as a whole. If the meaning of the relevant words is not so clear, the court will adopt the view of the majority of people towards the article as the basis for deciding this kind of case.

4. Can a person's acts (not words) be capable of carrying defamatory meaning?

The circumstances in which a hint given with one's eyes and/or hand gestures may be considered defamatory will depend on the situation at the time and the actual acts involved.

There was a case in England in 1983 in which a man went into a turf accountant (a bookmaker licensed to take bets on horse races) shop. While he was looking around, two security guards approached him and seized him without saying anything. The three men then had a conversation. After that the security guards took the man to the security office. The man later sued that shop for defamation. He succeeded and the shop had to pay compensation to him. The reason was that, at that time, many people inside the shop saw the security guards take the man away without any reason. People would have believed that the man must have done something unlawful. The judge held that, despite the fact that those people did not hear the conversation among the three men, the conduct constituted defamation of the plaintiff.

Despite the above example, you should note that suing others on the grounds of defamatory acts/conduct involves complex legal arguments. Legal advice must be sought before taking any legal action in this sort of case.

5. If a person gives nick names to his friends at random (e.g. he called an acquaintance "fatty pig"), has he incurred any liability for defamation?

Any words that may tend to cause a person to be hated or despised defame him. However, as pointed out in Gatley on Libel and Slander (10 th Edition ), words that may expose a person to ridicule may present some difficulty in deciding if the words are defamatory. Some degree of humour at the expense of others may be part of normal life. Words that do not diminish one's standing with others cannot be relied on as grounds for commencing a defamation lawsuit.

In a British case ( Berkoff v Burchill & Anor.) , Berkoff, a well-known actor, director and writer, was referred to in one article as a “notoriously hideous-looking person” . In the second article, a character in the film called "the Creature" was referred to and equated to the plaintiff by “[the Creature]'s a lot like [Berkoff], only marginally better-looking” . The plaintiff claimed that the statements made were defamatory as they meant and were understood to mean that Berkoff was “hideously ugly” . Application was made to dismiss the action on the grounds that the statements might only cause injury to feeling or cause annoyance, which was irrelevant to an action for defamation. However, the Court was of the view that to make such a statement about someone in the public eyes who made his living as an actor could be considered defamatory, since the statement was capable of lowering the actor's standing in the estimation of a right-thinking member of the public and capable of making him an object of ridicule. The Court ruled that it was inappropriate to withdraw the matter from the consideration of a jury.

Legally speaking, if a nick name used to refer to, or to address, another person is capable of lowering a person's standing in the estimation of the public and of making that person an object of ridicule, the victim can use this as grounds for instituting defamation proceedings.

However, in practice, when you consider the level of damage/suffering together with the potential costs in legal fees and time, it may not be rational to commence a defamation lawsuit over an unwanted nick name.

6. We all have an interest in the private life of entertainers. We often discuss the various stories published in the media and this might have an adverse effect on some entertainers. Are the publishers liable for defamation?

Publications about entertainers or public figures having a tendency to lower the reputations of these people fall within the scope of defamation under the law. However, as mentioned in Gatley on Libel and Slander (10th edition) , the limits of permissible criticism in public life are wide. For example, if a public figure conducted his private life so as to excite public interest (e.g. hugging and kissing a lady in the street), and the press reported that incident, it may be difficult for that public figure to argue that the article published was capable of being defamatory.

More information about possible defences against defamation claims can be found in section VI.



III. Conveying defamatory matter to others

Under the law of defamation, publication is the communication or making known by one person (the publisher) to another (the third party) of defamatory matters about and concerning the person defamed. It is not confined in printing and distribution of books/newspapers/magazines. If the words complained of have been told/disclosed/ disseminated (in written or oral form) to a third party, those words are considered to have been "published". To establish a claim for defamation, the plaintiff has to prove publication of the defamatory words by the defendant.

Suppose that there are only 3 persons involved in a case. If Mr. A published something defaming Mr. B to Mr. C, then Mr. A (i.e. the publisher) may be liable for defamation. The publication does not need to be made to a group of people (although the level of damage would be much lower if the defamatory matter is only published to a single person).

1. If the defamatory words were neither written by me nor originate from me, and I have simply repeated the publication to others, will I be liable for defamation?

If one person speaks to another person once, this counts as one publication. When the latter repeats the same thing to yet another person, it is a second publication. The second publication is a fresh instance of defamation (if the content is defamatory).

Merely quoting other people's words is regarded in law as publication. If the words are defamatory, the one who merely repeated those words is liable for defamation. No matter how many times the words are repeated, each repetition is one instance of defamation.

2. If I only talk to my wife about another person, and some of the words I use are defamatory, will I be liable for publishing defamatory matter about the other person?

Communication of defamatory matter by a person to his/her spouse does not constitute a publication under the law of defamation because for this purpose a husband and wife are treated as one person ( Gatley on Libel and Slander [10 th Edition] ). In reply to the subject question, you have not published the defamatory words to a third party and therefore you would not be liable for defamation.

3. If we just talked about a colleague in the company office, will such a conversation be regarded as publication under defamation law?

Even if the employees of a company are communicating defamatory matters with each other (without further publication outside the company), and even if the contents of the conversation relate to the company's affairs, it can still be regarded as publishing defamatory matter.

However, if the aforesaid communication is made in good faith between a person who has a duty to inform the others of matters that defame the colleague, and the defamatory matter is related to the affairs of the company, a defence known as "qualified privilege" is available to the publisher.

Example: You heard that your colleague (Mr. A) is going to disclose some confidential information about your company to a competitor. You subsequently reported that incident to your boss telling him to take pre-cautionary steps. Although this can be considered defamatory of Mr. A, you have acted in good faith and therefore the defence of qualified privilege may help you avoid liability for defamation.

4. If I sent an article defamatory of X in a sealed envelope addressed to my best friend (Y) but the letter was opened by Y’s secretaries and assistants, will I be liable for the publication of the defamatory article to these other persons?

Generally speaking, the writer would only be responsible for the publication of the defamatory article to the particular person to whom the letter was addressed. However, if the writer, given the circumstances of the case, knew that there was a likelihood that the letter could be opened and read by other persons, the writer may be liable for the publication of the defamatory article to those other persons ( Gatley on Libel and Slander [10 th Edition] ).

There was a case in which the defendant sent a letter to the owner of a firm not knowing that there were other people in the office. The letter was opened by a clerk of the firm and was read by three other clerks in the office. The Court held that the defendant should have considered that his letter might, in the ordinary course of the firm's business, be opened and read by a clerk. If he took no precaution to prevent this (e.g. marking the envelope with the words "private and confidential"), he was responsible for the publication.

5. If we are employers, to what extent are we liable for the acts of our employees after they have published something defamatory of others?

Generally speaking, an employer is vicariously liable for the acts of its employees where the employees have acted within the scope of their duties and the authority of their jobs. If this is the case, you (as the employer) may also be liable for defamation.

Under section 8 of the Defamation Ordinance, if you are an employer who is vicariously liable for your employees' acts, you may have the chance to rebut the above presumption (i.e. to make a successful defence) by proving that the publication was made without your authority, consent, or knowledge, and that you have not been negligent yourself (e.g. you or the person in charge of the job had duly checked the article before publishing it).

6. In a public place, person C talked to another person B in a loud voice, accusing a 3rd party (A) of some wrong doing. The conversation was defamatory of A. What C said was recorded by a member of the public who then uploaded the conversation to a website on the Internet. In these circumstances, C will be liable for the publication of those defamatory words against A when his conversation is heard by the public. However, when the public hear what C said on the Internet, who will be liable for the publication of the defamatory words?

A person is liable for unintentional publication of defamatory matter to a third party unless the person can show that such publication did not occur due to any want of care (lack of care) on his part.

Example: If C drops a defamatory letter on the street and B picks it up and reads it, C will be liable for the publication of the defamatory letter to B since such publication was due to his want of care in his custody of the document. (When he transports a letter, he has the duty to keep the letter confidential. If he carelessly dropped the letter and it is read by a passer-by, he would have breached this duty and therefore he would be liable for unintentional publication of defamatory matter.)

Applying the same principle to the subject question, C will be liable if he speaks in a loud voice (using defamatory words) in a public place allowing passers-by to overhear what he says.

Will C be liable for a defamatory conversation that was recorded and uploaded onto the Internet secretly by another person?

If person C can prove that he did not know a member of the public was recording the conversation and that he did not have any reason to suppose that someone within hearing distance would record it and place it on an internet website, he may not be liable for the second publication of the defamatory material on the Internet. However, due to the present advancement of technology, it is easy to record a conversation and upload it onto the Internet. This may increase the difficulty that C would have in putting the above defence forward.

Will the person who uploaded the defamatory conversation to the Internet incur any legal liability?

The member of public who recorded the defamatory conversation, and who placed the recorded conversation on the Internet and made the recording available to the public, has repeated the defamatory words to others. Referring to the answer to question 1, a second/repeated publication is a fresh instance of defamation. In that case, that member of public will be liable for the publication of that defamatory conversation.

The liability of the internet website (or the person/company that hosts the website) which contains the defamatory conversation will be discussed in the next question.

7. If defamatory words about a person were placed on an internet website by users/viewers of the website, will that website (or the person/company in charge of it) be liable for defamation?

At common law, some protection is given to persons who are not the author, printer or the first or main publisher of defamatory materials. There is also a statutory defence under section 25(5) of the Defamation Ordinance for unintentional defamation if the defendant (i.e. the publisher) can prove that:

  1. he did not intend to publish the words of and concerning the person, and did not know of the circumstances that they might be understood to refer to that person; OR
  2. the words were not defamatory on the surface and the publisher did not know of the circumstances under which they might be understood to be defaming that person; AND
  3. all reasonable care has been taken by the publisher to avoid any defamatory material in the publication; AND
  4. in order to avoid or reduce the liability for unintentional defamation, the publisher has to make an "offer of amends" under section 25 of the Defamation Ordinance.

(Note: "Offer of amends" generally means that the defendant offers to give a formal apology to the plaintiff, and the plaintiff can decide whether or not to accept this offer. A common example of executing an offer of amends is to publish a notice of correction regarding the words complained of, together with a statement of apology, in a newspaper.)

Generally speaking, when defamatory materials have been left on a website by internet users, that website (or the person/company/internet service provider in charge of it) may be liable as the publisher of said defamatory materials if they take no action to remove the defamatory materials from the website .

In a British case, an internet service provider received and kept on its website an article which contained defamatory materials concerning the plaintiff (who is a lecturer in physics, mathematics and computer science). The article was posted by an unknown person using another service provider. The lecturer had approached the defendant (the internet service provider) requesting it to remove the article from its website. The defendant did not do so and the article remained available on the website until its automatic expiry, some 10 days afterwards. The court held that an internet service provider was a publisher of the material which it "hosts" where it was aware that the material was defamatory. The judge even suggested that, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, the provider publish that posting to any subscribers to their internet service provider who accesses the newsgroup containing that posting. Every time one of the provider's customers accesses the website and sees the posting defaming the lecturer, it constitutes a publication to that customer.



IV. Identifying the person defamed

If you are the plaintiff (the person defamed) in a defamation case, you have to prove that:

  1. the defamatory statement is referring to you (the contents of the statement defame you); and
  2. The defendant is the author, producer, or publisher of the statement, or the medium that releases the statement.

People may think that if they do not include the name of a person they are maligning in an article, but only give a thorough description of the person (e.g. his height and weight, the places that he frequents and the things that he had done), that person would have difficulty proving that the article refers to him.

In these circumstances, the court will consider to whom the author's original intent is referring, and whether ordinary readers will think that the author is referring to that person after reading the article. If that person's friends and others can reasonably infer that the article refers to him, then the article in question will be considered to refer to that person.

1. If I did not intend to refer to the plaintiff in my article, and it was a pure coincidence that the article appears to refer to him, will I still be liable for defamation?

At common law, it is immaterial that the defendant did not intend to refer to the plaintiff, or did not even know of his existence. According to Gatley on Libel and Slander [10th edition], the test is "would the words complained of be understood by reasonable people who knew the plaintiff to refer to him?" If so, the words complained of are published about and concerning the plaintiff, no matter what intention the defendant may have had.

If you are being sued for defamation, you cannot make a successful defence by showing that you did not intend to defame the plaintiff when in fact you have done so.

In a British case, the defendant published an article defaming a named person believed by the author and the editor to be a fictitious person with an unusual name. The name was in fact that of the plaintiff, a barrister in practice. Neither the author nor the editor of the article intended to refer to the plaintiff. They even swore that they did not know of his existence. The judge had directed the jury to decide the case on the facts, not the intentions of the defendant. If the jury thought that any reasonable people reading the article would think it referred only to a fictitious person, then the article could not be considered defamatory. However, if the jury thought that reasonable persons who knew of the existence of the plaintiff would think that it referred to him, the jury ought to find for the plaintiff (i.e. the defendant is liable for defamation) and it was immaterial whether the article was intended by the author or the editor to refer to the plaintiff or not.

2. Would I be liable for defamation if I published defamatory words or allegations about a limited company? How about publishing defamatory words or allegations against the government?

A limited company or a corporation (which is incorporated under the Companies Ordinance) is generally considered as a separate legal entity, and is sometimes treated as an "artificial person". A limited company can either sue, or be sued by the others. It can also sign contracts or own property under its name.

If defamatory statements have harmed the reputation of a limited company, the company can sue for defamation. However, both the government and government organizations do not have the right to sue for defamation. (However, you are warned that if the defamatory statements refer to a particular government official , that official may personally sue for defamation.)

On the other hand, the situation regarding a public body (like a university) may be different. There has been a local case ( Hong Kong Polytechnic University & Ors. v Next Magazine Publishi n g Ltd. & Anor.) in which the Polytechnic University sued a magazine for defamation. The article in question was about the qualifications of the academic staff of the Polytechnic University and their terms of appointment. The magazine argued that if the court allowed the University to sue on this basis, it would be contrary to the right to freedom of the press as guaranteed under the Bill of Rights Ordinance. This rationale was accepted by the Court of First Instance of the High Court. The Court ordered the Polytechnic University to cease suing the magazine. On appeal, the Court of Appeal held that the reputation of the Polytechnic University required protection just like a limited company, and it held that the Polytechnic University had the right to bring legal action against the magazine.



V. Loss and compensation

Generally speaking, in defamation cases, damages are awarded by the court as compensation for injury ("injury" means anything suffered by the plaintiff) but not as punishment for wrong doing. The purpose of the compensation is to restore the plaintiff to his or her former position as far as money can do.

In assessing the damages/compensation, the court has to consider the seriousness of the defamation as well as other factors including the plaintiff's financial loss, injury to the plaintiff's feelings and reputation, the extent of the publication, and any mitigating factors. In other words, it may not be necessary to prove that the plaintiff has suffered financial loss.

As explained in section I , if the defamatory matter is "libel" (i.e. in writing or in some other permanent form), damage to the plaintiff is presumed from the beginning. If the defamatory matter is a "slander" (i.e. by word of mouth or in some transient/temporary form), the plaintiff may have to prove to the court that he or she has suffered some financial and/or non-financial loss caused by the defamatory matter.

1. My rival is spreading rumours that goods supplied by my company are defective. These rumours are affecting my business substantially. Is there anything I can do to stop it?

Yes. Under these circumstances, you (as the plaintiff) can apply for an injunction, whether interim or permanent, to prevent further publication of the libelous or slanderous statements or materials.

An interim injunction is a court order restraining the defendant (in this case, the defendant is the person spreading or publishing the rumours) from further publication of said rumours pending the outcome of full legal proceedings (a trial) in court. That is to say, if the interim order is granted by a court, the defendant will be forbidden to continue to publish the matter under dispute until the court has made a final judgment on whether or not the defendant is liable for defamation. The court may grant such an order when it appears to be just and convenient to do so.

With reference to Gatley on Libel and Slander [10th edition] , an injunction is also appropriate in cases of malicious falsehood (i.e. the defendant intentionally made false statements in order to harm the plaintiff or its business) where:

  1. the plaintiff can prove that the content of the publication by the defendant is false;
  2. it refers to the plaintiff or its business;
  3. it was published maliciously; and
  4. financial loss will follow as a natural and direct result of the publication.

For more details on how to apply to a court for an injunction, please go to another topic – bringing or defending a civil case. You are strongly recommended to seek legal advice before making this application.

2. Is the conduct and the intention of parties in a defamation lawsuit important when it comes to the assessment of compensation?

Generally speaking, the conduct of the defendant and plaintiff and their states of mind are relevant factors to be considered if the plaintiff seeks to invoke aggravating damages (i.e. to ask for higher compensation) against the defendant.

In a case in the 1960s, the House of Lords in England ruled that the jury can take into account the motives and conduct of the defendant where they aggravated the injury done to the plaintiff. There may have been malevolence or spite in the manner of the defamatory conduct, increasing the injury to the plaintiff's proper feelings of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation. The court has further ruled that in two categories of cases, an award of exemplary damages (a punitive compensation) against the defendant would be appropriate. The first category contains cases in which oppressive, arbitrary or unconstitutional acts are committed by the civil servants. The second category contains cases in which the defendant's conduct has been calculated to make a profit for himself which may well exceed the compensation payable to the plaintiff.

However, there are no general guidelines for calculating the amount of aggravating and exemplary damages. The amount to be awarded depends on the circumstances of each case.

In summary, everything which may worsen or mitigate the plaintiff's loss or injury is relevant.



VI. Defence

If I have published something that defames others, what defences can I use if I am sued for defamation?

The following options for defence are available to you:

  1. the words were not referring to the plaintiff;
  2. the words were true in substance and in fact (justification);
  3. the words were fair comment;
  4. the publication was privileged;
  5. leave and licence or volenti non fit injure;
  6. an offer of amends was made under the Defamation Ordinance;
  7. innocent dissemination; and
  8. apology.

Please note that options (f), (g) and (h) can only be used in the mitigation of damages. That is to say, if you (as the defendant) have admitted liability for defamation, you may make use of any of these three options to rectify the mistake/damage or to reduce the amount of compensation.

The following explanations are only preliminary. You are strongly recommended to seek legal advice before you rely on any of these defence options.

Option (a) (the words were not referring to the plaintiff) is self-explanatory. Please return to section IV for information about the circumstances in which it can be considered that a person has been referred to in a defamatory statement.

Under option (b) (justification) , the publisher/defendant has to prove the truth of the defamatory words or statements. Meanings of the words used must be the meanings as understood by the jury (i.e. the meanings as understood by ordinary and reasonable men), and the truth to be proved by the defendant must be the meaning as understood by the jury. The general principles are that the law does not allow one to recover damages for an injury to a character that one does not possess. In other words, if the defendant was just telling the truth, the plaintiff should not be entitled to any compensation even though the words complained of are considered as defamatory.

To rely on option (c) ( fair comment) as a defence, the words complained of must be a comment on a matter of public interest based on fact. For the first element – a comment, the test is "could any fair-minded man honestly express that opinion on the proved facts?" Suppose a land developer has torn down a famous historical building, and you write an article in a newspaper criticizing that decision, saying that it was wrong, then that may be considered as a comment based on facts. Tearing down a historical building may also be considered as a matter affecting the public interest (the second element of this defence). In fact, "matter of public interest" covers a wide area and you should consult a lawyer for further details on this issue.

Option (d) (privilege) can be broadly classified as absolute privilege and qualified privilege. The scope of "absolute privilege" is very limited and covers: proceedings and papers in the Legislative Council, judicial proceedings, statements made by officers of the government in the course of duty, and, possibly, communication between solicitors or barristers and clients (e.g. clients disclose information to their solicitors/barristers with the sole purpose for dealing with the relevant legal proceedings).

"Qualified privilege" includes statements made by a person in pursuance of a legal, social or moral duty to a person who has a corresponding duty or interest to receive them, and statements made to protect the common interest of a person who has or shares a corresponding duty or interest to receive them.

Fair and accurate reports of judicial proceedings and the Legislative Council's proceedings are covered by qualified privilege (For more information about qualified privilege for newspaper reports, please refer to section 13, section 14 and the schedule of the Defamation Ordinance). However, the defence of qualified privilege is not only available to newspaper reporters but also to the general public. Please go to question 3 under section III to obtain an everyday example.

Option (e) (leave and licence or volenti non fit injuria) is a defence which requires the defendant to prove that the plaintiff had asserted to or had acquiesced (given consent) to the publication complained of.

Section 25 of the Defamation Ordinance provides a defence for innocent publication and offer of amends (option (f)) . "Offer of amends" generally means that the defendant offers to give a formal apology to the plaintiff, and the plaintiff can decide whether or not to accept this offer. A common example of executing an offer of amends is to publish a notice of correction about the words complained of together with a statement of apology in a newspaper. It is important to note that once the plaintiff has accepted the offer and the defendant has also performed the required acts, the plaintiff cannot commence or continue with a defamation lawsuit against the defendant.

A defence based on option (g) (innocent dissemination) is available for wholesalers, newsagents, libraries and distributors. You can find details of this defence in the question and answer about internet websites.

Option (h) (apology) is available for defendants who have made a publication without malice and gross negligence (i.e. the defamatory words were published without the intention to harm the plaintiff and the defendant also did not act negligently), and that an apology was published before the legal action commenced.



VII. Case illustration

Scenario

Mr. A had written an article in which part of the content relates to Mr. B. The article was published in a local magazine two weeks ago. Mr. B holds the view that the article makes some adverse allegations against him. He also thinks that the article has undermined his reputation and affected his business. Accordingly, Mr. B sues Mr. A for defamation.

Question 1:
What things must Mr. B prove to the court in order to make a successful claim against Mr. A? Answer 1

Question 2:
If Mr. A only intended to criticize another person through the article and he had no intention of defaming Mr. B, would Mr. A still be liable for defamation? Answer 2

Question 3:
The words under dispute are included in the article, but only some of the words may amount to the defamation of Mr. B. In such a case how are the meanings of the words to be determined? Answer 3

Question 4:
If a reader of the article uploaded the content to an internet website, has he incurred any legal liability for defamation, and what about the magazine that published the article? Answer 4

Question 5:
Would the situation be different if Mr. A did not state the full name of Mr. B but only made some descriptions about him? Answer 5

Question 6:
Mr. A insists that he was just telling the truth in his article. Can he defend against a claim for defamation? Answer 6


Answer 1

Mr. B has to prove the following things:

  • the content of the article contains defamatory meaning(s);
  • the article was conveyed or communicated to a third party; and
  • the defamatory content refers to him.

He may also need to give some evidence of his loss if the court is to assess the amount of compensation to award.

Answer 2
Mr. A may still be liable for defamation.

It is not important if the one who speaks or publishes the defamatory words intends to defame the other, what is important and more relevant is whether or not reasonable people in society think or opine that the words published have defamed Mr. B.

The law of defamation is concerned with the effect of words on ordinary people. The standard to be applied is that of right-thinking/reasonable members of society. Under this standard, if the article published did contain some defamatory words about Mr. B, then Mr. A may be liable for defamation.

Answer 3
If the defamatory words are included in an article, you must look at the article as a whole to see if its meaning is defamatory. You cannot come to a conclusion by simply reading one sentence or one paragraph out of context. This is because, in one paragraph of "the article it may say that Mr. B is an immoral person", but the next paragraph may state that "in fact Mr. B is not so bad and those rumors saying that he is immoral are incorrect". For this reason, Mr. B cannot simply rely on a single paragraph or a sentence contained in the article to sue the author without considering the content of the rest of the article.

You must look at the publication as a whole. If the meaning of the words that someone spoke or wrote are not so clear, the court will adopt the view of the majority of people towards the article as the basis for deciding this kind of case.

Answer 4
The reader, who posted the article on the Internet and thus made the content available to the public, has repeated the defamatory words to others. Referring to question 1 under section III, a second/repeated publication is a fresh instance of defamation. In this case, that reader will be liable for the publication of that defamatory article.

The magazine company, which disseminated the article to the public in the first place, will also be liable for publishing the defamatory words even if the writer of the article is not a reporter/employee of that company. The company may avoid its liability only if innocent publication is proved and an offer of amends has been made under section 25 of the Defamation Ordinance. (Please go to question 7 under section III for further information.)

Answer 5
People may think that if they do not put the name of a person in an article, but give a thorough description of the person (e.g. the business that he runs, his nickname or surname, the things that he had done, etc.), that person would have difficulty proving that the article actually refers to him.

In this circumstance, the court will consider to whom the author originally intended to refer and whether ordinary readers will think that the author is referring to that particular person after reading the article. If Mr. B's friends and others can reasonably think that the article refers to him, then the court will conclude that the article in question does relate to Mr. B.

Answer 6
Mr. A can use justification as a defence. With this defence, he has to prove the truth of the defamatory words in the article (i.e. what he wrote about Mr. B was simply the facts, without any distortions). The court will normally use an interpretation of the meanings of the words used that will be the meanings as understood by the jury (i.e. the right-thinking/reasonable members of society. Therefore, Mr. A must prove that what he published was true within the framework of the meanings of the words he used as determined by the jury, and not some possibly uncommon or obscure meaning that he himself might have attributed to the words in question.

The general principle is that the law does not allow one to recover damages for an injury to a character that one does not possess. In other words, if Mr. A was just telling the truth, Mr. B is not entitled to any compensation even though the words complained of are considered to be defamatory.



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