Defamation and Freedom of Expression in Hong Kong - Case Study Example

Media Law Case study-Defamation & freedom of expression Task Defamation Defamation can be con d as a situation whereby a person publishes to third person falsiful allegations as pertaining to the reputation of another person, the plaintiff (Glasser, 2013). In fact, even ridicule has been taken to amount to defamation in various jurisdictions with the inclusion of Hong Kong. for instance in the hallmark case of Li Yau Wai V. Genesis films limited where there was utilization of the plaintiff’s photo in a movie representing a dead person. As regarding to defaming a person’s or entity identity, the words can be said to be either libellous or even slanderous (Ivor Tossell,2014). In differentiating the two sorts of defamations, the Hong Kong jurisprudence makes use of the English standpoint and to that effect defines a libelious defamation as one that is permanent in nature by way a of a publication whether in is contained in local dailies or even in the newspapers. Hong Kong jurisdiction through its Defamation Ordinance, section 22, articulates that for purposes of clearing confusion regarding to the two sorts of defamation, statements by way of broadcasting shall be treated as libel. LEGAL ACTIONS The Actions likely to be imposed upon the defendants are on defamation and mainly libel since the information was published in the media. A libel action can be either civil or even criminal depending on what action the plaintiffs wish to pursue. Civil Action This is redress that is actionable for damages and in that light, the plaintiffs may prefer this if they wish to be reinstated to their original situation, or if they their reputation has been considerably stained. This action is ingrained mainly in tort law where there must be consideration on such factors as negligence and duty of care. Negligence for the defendants may be proved if they were obliged to act morally or even legally with care while disseminating information. Criminal Action Libel is actionable criminally if the plaintiffs wish to impose punishment upon the defendants for their conduct. It is here that such aspects as intention have to be proved to demonstrate that the defendant wanted to inflict harm knowingly. LEGAL ISSUES Who can sue and get sued? The issue of who can sue is a query of locus standi. In Hong Kong, suing can be effected by almost all persons but this is entangled by some exceptions. The Government is restricted from pressing charges regarding defamation. Additionally, political parties and public personalities are as well restricted to sue for any injurious assertions directed unto them in the course of carrying out election campaigns, as reinforced in the case of New York Times V. Sullivan in the USA. In Hong Kong, there is a wide protection of its Bill of Rights and thus this jurisdiction acknowledges the right to expression. In the case of, Hong Kong Polytechnic University and Others V Next Magazine publishing ltd and Anor, the university became barred from pressing for defamation by claiming that it existed as a public authority (Glasser, 2013). However, on appeal, the judged found that the decision was erred and shed light that a university was not in any aspect a public authority and that it was run distinctly form other government entities and thus had right of suing because it functioned majorly basing on its reputation. The dead are as well exempted from legal actions with regards to defamation by the mere reasoning that once one dies, they cease to have a reputation to safeguard. Concerning who can be subject to defamation cases, there a wide range of persons that may become liable for their actions. These involve writers, broadcasters, also publishers, sellers, lenders, any reporter, someone that undertakes publishing, even the editors concerning a publications and in the list is also internet providers. From this list, it is clear that all persons where any story, publication or statement emanates from should in principal take extra caution and duty of care in what they disseminate information to the world and how they disseminate it. Matters the plaintiff needs prove and those that needs not prove For a libel case, one should show harm caused and also that the harm was directly to them (The Reporter’s Committee, n.d). As with a defamation case, the plaintiff needs not prove; Intention- The plaintiff should not demonstrate that the defamer actually intended to carry out the act. Untruth- It is not also in his power to demonstrate the defendant’s assertions to be untrue. The defendant has liberty to rebut evidence tabled and clear the air that indeed the assertions were true. Defences available In this defamation suit against Guo and the the Hong Kong news papers, there are various defences that may surface. These involve; Justification. This defence is geared towards showing that what was disseminated was actually the absolute truth. As pertains to this defence, the court will base particularly on balance of probabilities and thus seek to gauge whether the evidence tendered depicts the statement to have been true or false. However, this defence depends upon the seriousness and gravity of the case, so if the case poses as a criminal one, then the evidence needs to be weighty enough to demonstrate that the assertions were indeed true. Qualified privilege. With this defence, it is not sufficient to demonstrate that the maker was privileged to do so. The maker should demonstrate that they were actually obliged to fulfil the same whether morally, legally or otherwise. In addition, one should explain that they made such assertions with no malice at all. However, as regards to malice, it was reached in the case of Tsang Hon Chu v Wong Kwok Leung that carelessness or disbelief in making a statement would not amount to malice but rather the plaintiff needed to prove that it was indeed malice to hurt him that motivated the maker to make the statement. Public Interest. The defendant here needs not only show that they were obligated to making the statement, but also show that they did so in public interest. This defence has had considerations in the case of Floods V Times News paper limited. Evaluation on whether the statement was made for reasons of public interest bases upon; Seriousness of the charge. The public is usually very misinformed if a charge poses as a very serious one since they do not comprehend it and the statement heavily injurs the plaintiff if actually it is false. Nature that the information assumes also counts with regards to just what degree the matter is one of public interest. Source of the information is as well very crucial here since some informants are pushed by ill motives and can even be bailed to provide such information. The steps undertaken to seek clarifications concerning the issue are a key consideration as well The other consideration is the status that the allegations have owing to the fact that some may be under critical scrutiny by the legal investigators and thus require respect. Timing is also very crucial here The other prerequisite is whether there were clarifications sought from the defendant since they may have better knowledge of what took course. Tone of the statement also is very crucial since some publication may be posing questions in search for clarifications and not as statements of fact. Honest Comment. As regards to this defence, the media can explain that there was no malice and that the assertions were geared towards public interest. The case of Cheng V Tse, the following ingredients must manifest; The assertion be made with regards to public interest The assertion must be an opinion as opposed to a fact The assertion should be an honest one, that any honest person could make The assertions should be based upon privileged or rather true facts The statements need to have been stated Statutory defence. As regards to this case, the media in Hong Kong may rely upon defences availed in the Defamation Ordinance sections 4 as well as 25. For instance that there existed no malice that there was apologies made towards the media by insertion of the same in a newspaper prior to the commencement of the action POSSIBILITY OF SUCCESS OR IMPOSITION OF DAMAGES As regards to Caixin’s case, there may manifest success and have them accorded damages and this lies heavily upon the jury’s discretion. Someone defamed gets damages which are meant to reinstate them to the position that they were prior to the making of the allegations. In being accorded such damages, the defamed person needs not demonstrate that they had any injury inflicted, provided their reputation stood destroyed by the assertions made. That sense they may be imposed to pay. Ordinary/regular damages In evaluating or assessing the imposition of a regular damage, the court will need to look upon various aspects such as the allegations seriousness, Plaintiff’s condition as well as the publication’s reach. For instance, a publication covering large area will likely have larger damages imposed upon them. As explained in the case of John Raymond Luciw V Wolfgang Derler, the other aspect of consideration is that of the viral characteristic of the internet, since it entails a wider coverage. The other consideration in estimating damages basis upon whether any apology had been furnished before commencement of the action as in Blakeney Williams’s v Cathay Pacific Airways ltd where the appeal judge went ahead to set aside damages that were highly set at trial by explaining that they were erred since there should have been a consideration that an apology had been issued. There will also e a consideration on whether there malice. Exemplary damages This is a sort of damage geared towards punishing the defendant for their wrongful conduct. Conduct here is principally considered to assessing the possible damages. FREEDOM OF EXPRESSION Major Legal Challenges For An International Media Company Operating And Publishing Around The World, Especially In China And Elsewhere In Asia It is inevitable that the media assumes a very great role and that it cannot be done away with. However, the media has being under lot of pressure when it comes to publishing in a countries having varied laws. For instance, the fact that most common law jurisdictions have no central or rather written laws makes it very hard to have a harmonized framework on media protection since they rely upon statutes, case laws, the equity doctrine and even custom. Difficulties that the media have to grind in dispensing their work are tenfold and relate to various aspects as below: Insufficient press protection While some jurisdictions have majorly taken notable steps in protecting their press such as the UK, others remained silent on the issue. For instance, the UK has notably formulated such legislations as the Freedom of Information Act that lays down directions on what the press should engage in. The UK also has a Defamation Act that gives spotlight on what actions amount to injury of one’s reputation and has also adopted a libel reform which makes it rather tough for anyone to press criminal libel charges in that light (Weisenhaus, Glofcheski, & Yan, 2014). Other countries like New Zealand have since made regulations such as the Freedom of information and as well repealed its provisions regarding secrecy of government matters and also added upon the provisions of the Obscenity Act to make it more substantive. However, there are countries such as Hong Kong that have not assumed any major move and that is the reason why there are still gaps in its media law and someone may undertake an action in criminal libel. Privacy issues The issue about privacy is one that does not escape the mention of many when it comes to freedom as pertains to the press. For instance, the Personal Ordinance Act in issues on privacy in Hong Kong articulates that there should be a demarcation between privacy of someone and the liberty accorded to the press. The matter on privacy affects news collection and dispatching of such news in countries and thus poses a major inhibition when it comes to the media operating on an international scope (New York Times (2014). For instance, there have been contradictions when it comes to reporting in Hong Kong and the Mainland (People’s Republic of China) because the media treatment in the mainland is very harsh. The harshness emanates from the fact that the Government deems reports by the foreign media about their jurisdiction to interfere with Government secrecy and their reports thus are termed to be sensitive. In the case of HKSAR v Ng Kung Sui, it was reached that there lies an acknowledgement of the inherent endowment to expression but as well each person need protect their flag and its desecration amounted to an offence. Copyright issues When it comes to foreign media, the issue of copy rights is another one that is very debatable. There has been overwhelming obligation imposed upon news rooms and the media generally when concerning copyrights for instance in the case of Chan Nai Ming v. HKSAR where there was held to be piracy. One are that concerns copyrights is concerning to news gathering where one has to ensure that they respect other people’s works in a bid to safeguard their intellectual rights. It is in this light that most media face restrictions when it comes to amassing news as well as disseminating them. The other are of copyrights is one whereby a journalist or a certain media has to ensure that they have copyrighted their work to ensure that they have full ownership upon it (The New York Times, (2014). These requirements have been of great consideration in international reporting since media people have to ensure that there are no contraventions to country’s copyright laws. However, in using another person;s work one can demonstrate that it was a fair dealing and that there was no malice intended (Canadian Conference of the Arts, 2010). Obscenity issues Media’s international operation makes it really difficult especially in the current era whereby there are divergent laws concerning the press. The media have endured a lot of restrictions when it comes to the content of the information and materials that they disseminate. Information has to face scrutinizes to ensure that it is not obscene to the reader or rather the end user. The internet for instance due to its dynamic and viral character becomes very necessary when mentioning the issue of media obscenity. Addressing the challenges One major way of handling media challenges is through formulation of convergent laws that address media issues in various jurisdictions to make sure that the media is quite aware of the clear stipulations concerning their actions. For instance, In Hong Kong there requires enacting of clear stipulations that articulate media’s liberty like other jurisdictions such as the UK as well as New-zealand that have made such great moves in the field. For instance, there is still no moves that prevent criminal libels like in the UK. There also needs to be articulate guidelines on what pertains to infringement of Government secrets for instance in China to ensure that the media do not suffer victimization any other time they report about matters concerning China and Asian states. Another way that these challenges could be contained is through a states self awareness that the media entails a very crucial segment that needs protection and warding of liberty in dispensing their duties. For this reasons, violent media environments such as China as well as Asia should be given proper awareness of such press liberty to ensure that they do not go on victimizing the media for information that they dispatch concerning these countries in a bid to fulfil their moral as well as legal duty to have their citizens aware and informed on matters pertaining to them. These countries need enlightening that there can never be states without the media and vice versa and that the role that the media partakes is one that requires support worldwide. References Canadian Conference of the Arts (2010). Fair dealing and fair use in foreign countries.  Retrieved on may 5 2015 from http://www.ccarts.ca Defamation Ordinance (Cap. 21), The Laws of Hong Kong Glasser, C. J. (2013). International libel and privacy handbook: A global reference for journalists, publishers, webmasters, and lawyers. Hoboken, N.J: Bloomberg Press. Ivor Tossell. (2014)"The Story behind the Rob Ford Story," Retrieved on may 5 2015 from http://thewalrus.ca/the-story-behind-the-rob-ford-story/ New York Times (2014) "What every news organization needs to know about copyright law"  Retrieved on may 5 2015 from http://www.rtdna.org/article/what_every_news_organization_needs_to_k now_about_copyright_law The New York Times, (2014). "The uninhibited press, 50 years later," http://www.nytimes.com/2014/03/09/opinion/sunday/the-uninhibited- press-50-years-later.html The Reporter’s Committee. (n.d).The First Amendment Handbook, Reporters Committee for Freedom of the Press . Retrieved on may 5 2015 from http://www.rcfp.org/rcfp/orders/docs/FAHB.pdf Weisenhaus, D., Glofcheski, R., & Yan, M. N. (2014). Hong Kong media law: A guide for journalists and media professionals. Read More