Defamed By A Robot? Artificial Intelligence, The Internet, And The Law Of Defamation – By Kenneth K Y Lam, Barrister, Jason Pow SC’s Chambers (Hong Kong Lawyer, August 2023)

https://www.hk-lawyer.org/content/defamed-robot-artificial-intelligence-internet-and-law-defamation

In Smart Until It’s Dumb, Dr Emmanuel Maggiori, a computer software engineer who wrote algorithms for Expedia, argued artificial intelligence (“AI”) was an overhyped monumental bubble about to burst. That was January 2023. What if his prediction was wrong, and ChatGPT, the automated text generation service powered by AI (i.e., a “Chatbot”), or its future incarnations, replaced humans as the dominant creator of written works? What are the legal implications?

AI is not new. For many years it had been possible for us to play Chess, or Mahjong, with players who were just AI computer programmes, as opposed to humans. Many people did so, often regularly. Notably, as is well known, Garry Kasparov, when he was the reigning World Chess Champion, was defeated by Deep Blue, an IBM supercomputer trained to play Chess, in a Chess Competition played under tournament conditions. That was 1997, i.e., 26 years ago.

However, ChatGPT, launched by OpenAI in November 2022, was quite different in that it was able to generate complex conversations and mimic writing styles, making factual assertions based on its training database (in turn selectively downloaded from the Internet in 2021) along the way.

In an article published by Legal Cheek on 23 March 2023, it was claimed that a Reddit user managed to ask ChatGPT to put a spin on Donoghue v Stevenson [1932] AC 562 and explain the facts of that case to him “in a gangsta way”. The result was hilarious. It was completely harmless, and a good laugh.

Indeed, ChatGPT could apparently generate text about literally anything, from the law of defamation to the design of aeroplanes and everything in between. The problem, however, was that its factual assertions were frequently false, and sometimes seriously defamatory.

Many would cite the famous example of Brian Hood, an elected mayor in Australia, who became concerned about his reputation when, according to Reuters and the BBC, members of the public told him ChatGPT described him as a convicted criminal sentenced to 4 years in prison for bribery, when that was untrue. He was in fact the whistle-blower who reported other people’s criminal activities to the authorities. He retained lawyers who sent a demand letter to ChatGPT’s owner, OpenAI, on 21 March 2023, setting a time limit within which OpenAI was to fix the problem, failing which a libel lawsuit would follow. At the time of writing this article, it is unclear what happened next.

Just as shocking was the example of Jonathan Turley, a Law Professor at George Washington University Law School, who according to The Washington Post had been falsely accused, by ChatGPT, of being the subject of a sexual misconduct complaint. ChatGPT appeared to have fabricated a non-existent Washington Post article, supposedly dated 21 March 2018, out of thin air, in support of the lie.

But is the law of defamation the answer? If a victim of Chatbot Libel sued in Hong Kong, what would happen?

This article seeks to address some, but not all, of the potential issues.

Issue 1 – Proper Forum

Whether Hong Kong can be a proper litigation forum for any particular case of defamation does not depend on the location of the parties, but on the location of the victim’s reputation.

For that reason, it is perfectly proper for a foreign resident or foreign corporation to sue for defamation in Hong Kong if he can establish he has a reputation in Hong Kong. As Findlay J had said in Investasia Ltd v Kodansha Co Ltd [1999] 3 HKC 515 (at 522-C): –

“If a plaintiff has a reputation in Hong Kong, as the plaintiffs in this case have undoubtedly established they have, it is not right to tell him to go elsewhere to vindicate that reputation. The place to vindicate a damaged reputation in Hong Kong is in Hong Kong, not in Japan or somewhere else.”

Similarly, it does not matter whether the wrongdoer is in town. Order 11 rule 1(1)(f) of the Rules of the High Court (Cap 4A), and of the Rules of the District Court (Cap 336H), allows a libel victim to apply for leave of the Court to serve his writ outside of Hong Kong, if it can be established the damage to his reputation was arguably sustained within Hong Kong, or resulted from an act committed within Hong Kong. As Cheung JA had said in Oriental Press Group Ltd v Google LLC [2018] 1 HKLRD 1042 (at §3.35), in any such application what matters is whether there has been, at least arguably, a real and substantial tort within the jurisdiction. Where defamatory contents had been created or uploaded from outside of Hong Kong but read within Hong Kong, the Court does not carry out a “number crunching exercise”. The Court does not require proof of any arbitrary minimum number of local readers before granting leave.

One may therefore say while neither Brian Hood nor Jonathan Turley may ever attempt to sue in Hong Kong, plenty of other potential litigants may properly start their Chatbot Libel cases in Hong Kong, irrespective of whether they are based in Hong Kong, if they feel aggrieved by defamatory contents generated by AI.

Issue 2 – Identifying Publishers

A libel victim contemplating legal action should carefully consider who to sue. No one can sue ChatGPT as, just like a table, a spoon, or a car, ChatGPT is not in law a person. But what about its corporate owner?

At common law, all persons who “procured or participated in” the publication of a libel, in any way or form, regardless of the degree of responsibility, are deemed “publishers” for the purposes of the law of libel and are, prima facie, jointly and severally liable for the whole damage suffered by the victim.

As noted by Ribeiro PJ in Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 (“Fevaworks”) (at §23): –

“Thus, under the strict rule, publication of a libel, for instance by a newspaper, meant that the journalist who was the originator of the article; the editor who accepted and prepared it for publication; the printer who set the type and printed it; the wholesale distributor who disseminated it; the newsagents who sold it to the readers; and the newspaper’s proprietor who published it through its employees or agents were all jointly and severally liable for the damage to the plaintiff’s reputation.”

Prima facie, therefore, just as the corporate owner of a newspaper can be sued for all words appearing on that newspaper, one may argue the corporate owner of any Chatbot may also be sued for all words generated by that Chatbot.

However, out of the strictness of this “publication rule”, the defence of innocent dissemination was born. It is now necessary for a libel victim to do more than just identifying “the publishers”. He must also consider which of them were the “main” publishers, and which of them were just “subordinate” publishers, before deciding who to sue, or indeed whether to sue at all.

The difference is huge. Subordinate publishers may have no legal liability vis-à-vis the libel published by them if they can demonstrate they did not know the published contents contained a libel, and that their lack of knowledge was not due to their own lack of care: Fevaworks (§24 to §31).

In Fevaworks itself, what fell to be decided by the CFA was whether the providers, administrators, and managers of HKGolden, a popular Internet discussion forum in Hong Kong, were “main” or “subordinate” publishers vis-à-vis the libel in question (§55). Having reviewed cases involving newspapers, Ribeiro PJ declared (at §76) the criteria for identifying a person as the main publisher as: –

“(i) that he knows or can easily acquire knowledge of the content of the article being published (although not necessarily of its defamatory nature as a matter of law); and (ii) that he has a realistic ability to control publication of such content, in other words, editorial control involving the ability and opportunity to prevent publication of such content.”

Can the proprietor of a Chatbot like ChatGPT “easily acquire” knowledge of what the Chatbot publishes? Does the proprietor of a Chatbot have a “realistic ability” to control publication? These questions can only be answered properly if the proprietor tells us substantially more about how its Chatbot works in practice.

Assuming the proprietor of a Chatbot can only be sued as a “subordinate” publisher, and the defence of innocent dissemination can in theory be invoked, whether such a defence would be successful would depend on the evidence in the specific case in question.

Issue 3 – Identifying Recipients

For Social Media Libel, it is relatively easy to identify the recipients in question, or at least to count them anonymously. Instagram (“IG”), for example, allows its users to check who had looked at their own IG stories. LinkedIn also provides “post impressions” statistics to its users. How about Chatbots like ChatGPT? Do their proprietors store chat records or other electronic data and if so, for how long and are they searchable?

We may have to wait for the first Chatbot Libel case to proceed to trial before we can have more access to such information.

As things stand, it is potentially difficult for a victim of Chatbot Libel to prove, with admissible evidence, the true extent of a Chatbot’s publication of defamatory words.

Issue 4 – Enforcement

Finally, one must consider the practicality of enforcement. A typical Chatbot conversation is one-to-one, and in that limited sense “private”. Even if victims of Chatbot Libel managed to get court injunctions, unless they constantly monitor the Chatbot’s responses, in person or through agents, it can be difficult for them to detect whether defamatory contents are being repeated or expanded upon by the Chatbot in question, or indeed by other Chatbots picking up such contents and using them. Instead of relying on injunctive reliefs, it may well be more important for Chatbot Libel victims to get public judgments correcting the falsehoods and vindicating their reputations, and ensure such judgments are themselves available to any person who may wish to check the truth or falsity of relevant contents generated by Chatbots.

Final Remarks

It has often been said that ChatGPT, the automated text generation service powered by AI, works a bit like Tom Riddle’s diary in J K Rowling’s Harry Potter and the Chamber of Secrets – it writes back to you in real time, but you are not quite sure why or how, or whether you should trust any of the words generated by a non-human. Harry Potter fans may well be able to recall how Arthur Weasley, an adult wizard in the fictional fantasy world created by J K Rowling, upon discovering what Tom Riddle’s diary managed to do, said this to his daughter: –

“Ginny! Haven’t I taught you anything? What have I always told you? Never trust anything that can think for itself if you can’t see where it keeps its brain!”

While in the real world, it may not be necessary to destroy all Chatbots with basilisk fangs, and it may not even be necessary to commence a libel action for each and every defamatory publication generated by them, we should at the very least be extremely cautious when dealing with Chatbots, fact-check all contents generated by them, and notify their corporate owners if they are in fact spreading fake news or other misinformation. Victims of Chatbot Libel should also be promptly notified.

In fact, staying on the Harry Potter theme, perhaps we should all do what Mad Eye Moody (or, to be precise, his polyjuice potion imposter Barty Crouch Junior) always said we should do in Harry Potter and the Goblet of Fire: – “Constant Vigilance!”

Kenneth K Y Lam

Barrister, Jason Pow SC’s Chambers

Kenneth is a Barrister in private practice. Called to the Bar in 2004, he sat as a Deputy District Judge, and as a High Court Master. He is a Fellow of the Hong Kong Institute of Arbitrators, and a member of Jason Pow SC’s Chambers. He acted for the successful plaintiff in the Social Media Libel case of Chow Wing Kai v Liang Jing [2021] 2 HKLRD 1189. He is recognised as a Leading Junior of the Hong Kong Bar by Legal 500 (Asia Pacific, 2022).

被機器人誹謗？人工智能、互聯網和誹謗法

https://www.hk-lawyer.org/tc/content/%E8%A2%AB%E6%A9%9F%E5%99%A8%E4%BA%BA%E8%AA%B9%E8%AC%97%EF%BC%9F%E4%BA%BA%E5%B7%A5%E6%99%BA%E8%83%BD%E3%80%81-%E4%BA%92%E8%81%AF%E7%B6%B2%E5%92%8C%E8%AA%B9%E8%AC%97%E6%B3%95

在《Smart Until It’s Dumb》中，曾經為智游网編寫演算法的電腦軟件工程師以馬內利·馬焦雷博士認為，人工智能 (“AI”) 是一個被過度炒作的巨大泡沫，即將破裂。那是2023年1月。如果他的預測是錯誤的，由 AI 運作的自動文字作品創作服務 (即 “聊天機器人”) ChatGPT或其未來化身即將取代人類成為文字作品的主要創作者，哪又如何？有什麼法律後果？

人工智能並非新事物。多年來，我們一直能夠與只是人工智能電腦程式而非人類的競賽選手下國際象棋或搓麻將。許多人曾經這樣做，而且定期做。值得注意的是，眾所周知，當加里·卡斯帕羅夫仍然是全球國際象棋冠軍時，他曾經在錦標賽條件下舉行的國際象棋比賽中被一台受過國際象棋訓練的 IBM 超級電腦深藍擊敗。那是1997年，即26年前。

然而，OpenAI 於2022年11月推出的 ChatGPT 卻大不相同，因為它能創造複雜的對話並模仿寫作風格，同時根據 2021 年從互聯網上選擇性地下載的訓練資料庫提出事實主張。

於2023年3月23日在Legal Cheek發表的一篇文章聲稱一名 Reddit 用戶成功要求ChatGPT 就 Donoghue v Stevenson [1932] AC 562 進行另類陳述，並以「黑幫方式」向他解釋該案的案情。結果引人發笑。這是完全無害的，而且是一個非常有趣的的玩笑。

事實上，ChatGPT 顯然可以創作和任何話題有關的文字，從誹謗法律到飛機設計以及兩者之間的一切均可。然而，問題在於它的事實主張經常是錯誤的，有時甚至是嚴重的誹謗。

許多人會引用澳大利亞民選市長佈賴恩·胡德的著名例子。據路透社和英國廣播公司報導，公眾人士告訴他 ChatGPT 將他描述為一名被判處 4 年監禁的已被定罪賄賂罪罪犯，而這是虛假的。這令他開始擔心自己的聲譽。他實際上是向執法部門舉報他人犯罪的舉報人。他聘請律師於2023年3月21日向ChatGPT的擁有人OpenAI發送了一封律師信，要求OpenAI在指定時限內解決問題，否則他將提出誹謗訴訟。往後的事態發展，在撰寫本文時仍然是不確定的。

喬治華盛頓大學法學院法學教授喬納森·特利的例子同樣令人震驚。據華盛頓郵報報導，他被 ChatGPT 錯誤地指控為不恰當性行為的投訴對象。 ChatGPT 似乎憑空捏造了一篇不存在的華盛頓郵報文章，並聲稱其日期為2018年3月21日，以支持該謊言。

但誹謗法是答案嗎？如果聊天機器人誹謗案的受害人在香港提出訴訟，結果會怎樣？

本文旨在討論一些 (但不是全部) 相關的爭議。

爭議一：合適的訴訟地點

香港能否成為任何特定誹謗案件的合適訴訟地點，並不是取決於當事人的所在地，而是取決於受害人的名譽所在地。

因此，如果外國居民或外國公司能夠顯示自己在香港享有聲譽，他們選擇在香港提出誹謗訴訟是完全恰當的。正如范達理法官在Investasia Ltd v Kodansha Co Ltd [1999] 3 HKC 515 (at 522-C) 中所說：-

「如果原告人在香港享有聲譽，正如本案中的原告人無疑已經證明的那樣，讓他去其他地方維護該聲譽是不對的。維護在香港受損的聲譽的地方是香港，而不是日本或其他地方。」

同樣地，侵權人是否在城裡也是不相關的。如果誹謗受害人可以顯示他的聲譽可以說是在香港境內受到傷害，或因香港境內的行為而受損，《高等法院規則》(第4A章) 和《區域法院規則》(第336H章) 第11號命令第1(1)(f)條規則允許他向法院申請許可在香港以外的地方送達他的令狀。正如高等法院上訴法庭法官張澤祐在 Oriental Press Group Ltd v Google LLC [2018] 1 HKLRD 1042 (at §3.35) 中所說，在任何此類申請中，重要的是在香港司法管轄區內是否 (或至少可以說是) 存在真實和實在的侵權行為。如果誹謗內容是在香港境外製作或上傳但在香港境內閱讀，法院不會進行「數字運算」。法院不會先要求顯示一個任意制訂的最低本地讀者數目才給予准許。

因此，有人可能會說，雖然佈賴恩·胡德和喬納森·特利都不會嘗試在香港提出訴訟，許多其他潛在的訴訟人，無論他們是否居於香港，如果他們對由人工智能創作的誹謗內容感到憤憤不平，他們可能會恰當地在香港展開他們的聊天機器人誹謗案。

爭議二：辨認發佈者

正在考慮採取法律行動的誹謗受害者應仔細考慮訴訟對象。沒有人可以向ChatGPT提出訴訟，因為ChatGPT就像一張桌子、一把勺子或一輛汽車一樣，在法律上不是一個人。它的企業擁有人又如何？

在普通法中，所有以任何方式或形式「促成或參與」發佈誹謗的人，無論責任程度如何一律被誹謗法律視為發佈者，表面上看需要共同及分別地就受害人遭受的全部損害承擔責任。

正如終審法院常任法官李義在 Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 (“Fevaworks”) (§23) 中指出：-

「因此，根據這嚴格的規則，發佈誹謗，例如由報紙發佈，意味著作為文章原創者的記者；接受並準備出版的編輯；設定字體及列印的印刷商；散播文章的批發經銷商；將它賣給讀者的報刊經銷商；以及通過其僱員或代理人出版該報紙的東主全部均需要共同及分別地就原告人聲譽的全部傷害承擔責任。」

因此，表面上看，正如報紙的東主可以就報紙上出現的所有文字成為訴訟對象，有人可能會說任何聊天機器人的企業擁有人也可以就該聊天機器人創作的所有文字成為訴訟對象。

然而，基於這「發佈規則」的嚴厲本質，不知情傳播這一個抗辯理由應運而生。現在誹謗受害者需要做的不僅是識別「發佈者」，他還必須考慮誰是「主要」發佈者，誰是「從屬」發佈者，然後再決定向誰人提出訴訟，或是否提出訴訟。

不同之處頗大。如果從屬發佈者能夠證明他們並不知道發佈內容包含誹謗，而且他們沒有該等認知並非因為自身疏忽，他們就他們發佈的誹謗內容可能沒有法律責任：Fevaworks (§24 至 §31)。

在 Fevaworks 案件本身，終審法院須裁定的事宜為香港一個大受歡迎的互聯網論壇香港高登討論區的提供者、管理者和行政人員是否涉案誹謗文字的「主要」或「從屬」發佈者 (§55)。在回顧及探討過涉及報紙的案例後，終審法院常任法官李義宣佈 (§76) 將一個人確定為主要發佈者的準則為：-

「(i) 該人知道或能輕易得悉被發佈文章的內容 (但不一定包括其在法律上屬誹謗性的特質)；及 (ii) 該人具實際能力控制該等內容的發佈，換句話說，該人能行使編輯控制權，包括有能力和機會阻止發佈該等內容。」

像 ChatGPT 這樣的聊天機器人的擁有人能否「輕易得悉」聊天機器人發佈的內容？聊天機器人的擁有人是否具有「實際能力」控制內容發佈？這些問題只能在擁有人告訴我們更多有關其聊天機器人的實際運作細節之後才會有令人滿意的答案。

假設聊天機器人的擁有人只能以「從屬」發佈者的身份成為訴訟對象，並理論上可援引不知情傳播為抗辯理由，該抗辯理由是否成立將取決於所涉案件的具體證據。

爭議三：辨認讀者

就社交媒體誹謗而言，辨認或匿名計算讀者相對地容易。例如，Instagram (“IG”) 允許其用戶查看誰看過他們自己的 IG 故事。領英亦可向用戶提供「發文瀏覽次數」統計數據。

ChatGPT 之類的聊天機器人又如何呢？他們的擁有人有否貯存談話記錄或其他電子數據？如有的話，貯存多久及可否被搜索？

我們可能必須等待第一件聊天機器人誹謗案進入審判階段，才能獲得更多此類資料。

就目前情況而言，聊天機器人誹謗的受害人可能難以透過可被法庭接納的證據去證明聊天機器人發佈誹謗性言論的確實覆蓋程度。

爭議四：執行

最後，大家必須考慮執行禁制令的可行性。一個典型的聊天機器人對話是一對一的，即在此有限的定義上是「私密的」。即使聊天機器人誹謗的受害人成功獲得法庭禁制令，除非他們親自或透過代理人不斷監控聊天機器人的反應，否則他們可能很難發現相關聊天機器人，甚或經已取得此類內容並正在使用它們的其他聊天機器人，是否正在重複或擴大誹謗內容。與其依靠禁制令救助，對聊天機器人誹謗受害人來說，更重要的可能是讓公開的法庭判詞糾正謊言及維護他們的聲譽，並要確保任何可能希望檢查相關資訊真假的人都能獲得此類法庭判詞。

後話

人們常說ChatGPT，即是由AI運作的自動文字作品創作服務，運作起來有點像 JK 羅琳的《哈利波特－消失的密室》中湯姆·瑞斗的日記—它會實時用文字回覆你，但你不太確定它如何或為何這樣做，或者你是否應該相信由非人類創作的言辭。哈利波特迷可能還記得 JK 羅琳創造的虛構奇幻世界中的成年巫師亞瑟·衛斯理在發現湯姆·瑞斗的湯的日記曾經做到的事情後，是如何對他的女兒說：-

「金妮！我沒有教過妳任何東西嗎？我一直在告訴妳什麼？如果妳看不到它的大腦生在哪裡，永遠不要相信任何能獨立思考的東西！」

雖然在現實世界中，可能沒有必要運用蛇怪毒牙消滅所有聊天機器人，甚至可能沒有必要就它們創造的每一篇誹謗性文章都展開誹謗訴訟，但我們至少應該在處理聊天機器人時極度謹慎，對它們創造的所有內容進行事實核對。如果它們實際上在傳播假新聞或其他錯誤資訊，請通知其企業擁有人。聊天機器人誹謗的受害人亦應得到迅速的提示。

事實上，延續此哈利波特主題，也許我們都應該做瘋眼穆敵 (或者，準確地說，他的魔藥變身水冒充者小巴堤·柯羅奇) 在《哈利波特與火焰杯》中總是說我們應該做的事情： –

「時刻警惕！」

林嘉仁

鮑永年資深大律師辦事處大律師

林嘉仁是一名私人執業大律師。在 2004 年獲認許為大律師的他曾經擔任區域法院暫委法官及高等法院聆案官。他是香港仲裁師協會的資深會員，亦是鮑永年資深大律師辦事處的成員。他曾經在周榮佳訴梁京 [2021] 2 HKLRD 1189 此一社交媒體誹謗案中代表勝訴的原告人。他被法律 500 強 ( 亞太地區 , 2022) 認許為一名香港領先大律師。

Hong Kong Libel Claimant Allowed To Sue For Misuse Of Private Information Too (23 June 2022)

Hong Kong Defamation Plaintiff Allowed To Sue For Misuse Of Private Information Too (23 June 2022)

Yip Wai Tak Vivian (葉慧德) (P) v Lee Ka Wo Esmond (李家和) (D1) Hong Kong Football Club (香港足球會) (D2) Cheung Yuk Fung Vincent (張旭峯) (D3) & Hong Kong Lawn Bowls Association (香港草地滾球總會) (D4)

[2022] HKDC 621 – Decision of Deputy District Judge Joseph Vaughan – DCCJ 4923 of 2019 – 23 June 2022

https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=145181&currpage=T

“… I am of the view that the complaint by the 3^rd and 4^th defendants about the lack of particulars in this respect is more apparent than real. As a person’s private life and matters protected by confidentiality may overlap, the plaintiff is entitled to rely on the current pleaded facts insofar as the circumstances that led to an expectation of privacy is concerned. As for the allegation of misuse, the plaintiff’s case on her current pleadings would appear to be sufficiently clear… I would therefore allow the plaintiff’s application by summons dated 28 April 2022 for the filing of the proposed amended statement of claim… As suggested by the plaintiff, I would split the costs order for the summons into two parts, for the reasons set out by Yam J in Lessy S.A.R.L. v Pacific Star Development Ltd [1996] 2 HKLR 1 at 2-C. The costs order nisi I make is as follows: –

(1) Costs of and occasioned by the 3^rd and 4^th defendants’ opposition to the summons be paid by the 3^rd and 4^th defendants to the plaintiff in any event, to be taxed if not agreed, with certificate for counsel;

(2) Save as above, costs of and occasioned by the summons be paid by the plaintiff to the defendants in any event, to be taxed if not agreed, with certificate for counsel;

(3) Save as above, costs of the hearing on 20 June 2022 be costs in the cause of this action, with certificate for counsel; and

(4) The costs order for the pre-trial review be in the cause of the action.

If there is no application to vary the costs order nisi within 14 days, it shall become absolute. Lastly, I thank both counsel, as well as Ms Cabrelli, for their helpful assistance.

Mr Kenneth Lam leading Miss Angela Mui, instructed by Alex To & Co, for the plaintiff

Ms Alice Cabrelli of Boase Cohen & Collins, for the 1^st and 2^nd defendants

Mr Abel Lam, instructed by Herbert Tsoi & Partners, for the 3^rd and 4^th defendants

Should Libel Remain A Crime In Hong Kong (香港應否繼續把永久形式誹謗定為刑事罪行)? – By Kenneth KY Lam, Barrister, Jason Pow SC’s Chambers – Hong Kong Lawyer (June 2022)

https://www.hk-lawyer.org/content/should-libel-remain-crime-hong-kong

In Hong Kong, libel is not just a tort (i.e., a civil wrong). It is also a crime. While England & Wales abolished its ancient defamatory libel offence on 12th January 2010 when Section 73 of the UK Coroners and Justice Act 2009 came into force, Hong Kong never abolished its own version of the same thing. Should libel remain a crime in Hong Kong?

Our modern law of defamation can trace its own roots back to 13th century England, when the ecclesiastical courts exercised criminal jurisdiction over all defamation matters. That well-documented fact was rightly described by Professor Richard Helmholz as “puzzling” – see Richard Helmholz, The Cannon Law and Ecclesiastical Jurisdiction from 597 to the 1640s, Chapter 11. By 1582 at the latest, the Star Chamber in England had also convicted a person of defamatory libel and sentenced him to “whipping and pillory” – see Sir John Baker, An Introduction to English Legal History (5th Edition), Chapter 25.

As of today, Section 5 of our own Defamation Ordinance (Cap 21) still reads as follows: –

“Any person who maliciously publishes any defamatory libel, knowing the same to be false, shall be liable to imprisonment for 2 years, and, in addition, to pay such fine as the court may award.”

Fortunately, neither whipping nor pillory would now be a lawful sentencing option for this statutory offence.

The last local reported judgment where libel featured as a crime instead of a tort should be the most interesting case of Chiu Chut-Fong v Law Chup [1973] HKLR 36, a judgment of McMullin J (as the late McMullin NPJ then was) dated 29th December 1972.

There, a local newspaper called Hong Kong Daily News published an article accusing a deceased person, Mr Lee Yau-Kong, of being a drug dealer who had also on one occasion plotted to murder some of his employees. Defamation against deceased persons being not actionable in tort, his widow, one Madam Chiu Chut-Fong, sought leave to start a criminal prosecution against that newspaper’s editor instead. Madam Chiu had the good fortune of being able to retain the services of Mr Robert Tang, then a junior counsel of around 3 years’ standing, at an oral hearing before McMullin J. The learned judge was persuaded to grant leave to Madam Chiu, and said this in his judgment (at 52 & 53): –

“It does not want great imagination to realise that, whatever the intention of the publication, its tendency must necessarily be to bring great shame on the family of the deceased. They are the kind of words which if not true cry out for refutation and amends yet no legal form of redress other than what she now seeks is open to the applicant. On the other hand, if she fails to prove the necessary intention or if the words are justified she will succeed only in widening and angering her wound. The risk is all hers, and I see no hardship or injustice in permitting her to seek a confrontation under law with her husband’s accusers. Speaking for myself I would think that the protection of private persons against any tyrannous abuse by press reporters of the wide latitude given under the law in printing matters of public interest is itself a matter of great public concern. For these reasons the applicant will have leave to proceed with the prosecution.”

What was more interesting, however, was the learned judge’s confirmation regarding the jurisprudential and/or social policy basis for making defamatory libel a crime (and not just a tort). According to McMullin J (at 48), whether the libel was against the living or the dead: –

“The ground of criminality in both cases is still the notion of a threat to public tranquillity and the basis of that is some affront so grave as to be capable of affecting the behaviour of living persons.”

In other words, by 1972, it was well-recognized in Hong Kong defamatory libel was made a crime because of the need to deter the malicious dissemination of fake news the contents of which were such an affront they could cause social disturbances and have an undesirable impact on the wider community. Maintaining public tranquillity would benefit society as a whole, so using the criminal law to deter dissemination was considered justifiable.

Bringing ourselves back to 2022, do we currently need to invoke the crime of defamatory libel, as set out in Section 5 of our Defamation Ordinance, more often than we used to, so as to stamp out the malicious dissemination of fake news via Twitter, WhatsApp, Telegram, Facebook, Instagram, LIHKG.com, discuss.com.hk, and such similar media or platforms? Or would invoking the crime of defamatory libel necessarily be such an unacceptable or at least disproportionate infringement of the freedom of speech guaranteed by Article 27 of the Basic Law the whole crime should be abolished in this jurisdiction, as had in fact been suggested by, amongst others, Lord Lester of Herne Hill QC in “Free Speech, Reputation and Media Intrusion: British Law Reform and Its Implications for Hong Kong and Beyond” (2012) 42 Hong Kong Law Journal 731?

A recent development in the UK can be our inspiration for the best way forward.

In July 2021, the UK Law Commission published a 239-page final report on “modernising communications offences” in which it recommended, amongst other things, the creation of a new statutory offence for sending or posting a communication known to be false. Whilst some commentators in the UK regarded this as a horrible attempt to resurrect those criminal libel offences which England & Wales abolished with great fanfare just some 11 years ago, Chris Philp MP, acting on behalf of the UK Government, had by a signed open letter dated 4th February 2022 confirmed the administration’s acceptance of the UK Law Commission’s proposal, and their commitment to create that new statutory offence “as soon as possible”, after which the malicious publication of false words could be made the subject of criminal prosecutions brought under new statutory provisions.

On 17th March 2022, the UK Government formally introduced its 225-page Online Safety Bill in Parliament, Clause 151 of which read as follows: –

“False communications offence

A person commits an offence if –(a) the person sends a message (see section 153),(b) the message conveys information that the person knows to be false,(c) at the time of sending it, the person intended the message, or the information in it, to cause non-trivial psychological or physical harm to a likely audience, and(d) the person has no reasonable excuse for sending the message.
For the purposes of this offence an individual is a “likely audience” of a message if, at the time the message is sent, it is reasonably foreseeable that the individual –(a) would encounter the message, or(b) in the online context, would encounter a subsequent message forwarding or sharing the content of the message.
In a case where several or many individuals are a likely audience, it is not necessary for the purposes of subsection (1)(c) that the person intended to cause harm to any one of them in particular (or to all of them).”

It is interesting how this draft provision seems to be saying only harm caused to “a likely audience” should be relevant to criminality, and that reputational or monetary harm should be excluded altogether.

Of course, as the UK Online Safety Bill has only just been introduced in Parliament, further changes to its scope are possible, perhaps even likely.

Should Hong Kong do something similar, abolishing the ancient crime of defamatory libel, creating new statutory offences in its place, and modernizing the way we tackle the problem of fake news?

On 7th July 2021, at a video-recorded symposium co-organized by the reputable journalism schools of CUHK, HKBU & HKU, two panels of distinguished experts shared their views on this very topic – “Misinformation and Disinformation in Hong Kong: Is Legislation the Answer?”

Since the symposium lasted 3 hours, any attempt to summarize it in an article as short as this one is going to be wholly unfair to all speakers. I would, however, say that one of the panellists, Mr Ronny Tong SC, most sensibly reminded everyone of the actual words used in Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”), which were as follows: –

“1. Everyone shall have the right to hold opinions without interference.

2. 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 his choice.

3. The exercise of the rights provided for in paragraph 2 of this article 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;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.”

Bearing in mind Hong Kong’s compliance with Article 19 of the ICCPR should be a matter of great importance, the learned panellist identified various practical difficulties in trying to deal with this thorny issue of fake news via new legislation, including the following: –

Enforcement;
Definition; and
Boundaries.

For enforcement, the taxing issue was not just the volume of false information or the speed at which they travelled. The problem was fake news could originate from, or reach Hong Kong through, overseas corporations beyond the reach of the Hong Kong Courts.

For definition, the difficulties were obvious. The term “fake news” was itself difficult to define, and what was true could quickly become false. The learned panellist gave his own examples, but I would rather use the Santa Claus example. If you knew Santa Claus never existed, and the flying reindeer phenomenon depicted on Christmas Cards everywhere was just a dishonest fabrication, could you tell your own children otherwise? If some legends, myths, folklore and religious text should be exempted from the new law, how do you define those?

For boundaries, one must be careful not to create a piece of over-ambitious legislation, only to have it declared unconstitutional by the HKCFA upon closer examination. Needless to say, just as a person’s freedom of speech should never be without limit, a restriction on that freedom should never be too draconian.

Another panellist at the same symposium was Ms Rachel Blundy, then a Senior Fact-Check Editor for Asia Pacific at Agence France-Presse (“AFP”), physically based in Hong Kong.

The learned panellist was asked this question: –

“AFP already operates in many Asian countries where so-called ‘fake news laws’ or their equivalents have been implemented. Have you and your colleagues at AFP encountered any difficulties in going about fact-checking and other journalistic activities in those places because of those laws?”

Readers can easily find the learned panellist’s full and informative answer to this question by searching for the full video on HKU Journalism’s Official YouTube Channel. For the purposes of this article, the most important point she made was that AFP did not get into trouble in Singapore despite the implementation of the Protection from Online Falsehoods and Manipulation Act 2019 (“POFMA”) in that jurisdiction. She said she noticed there was indeed “less” misinformation around in Singapore for them to fact-check, compared to places like India, Hong Kong or Indonesia, but emphasized one should perhaps also ask “what else” had been screened out by POFMA.

Speaking of POFMA, I should perhaps add that at one of the symposium’s Q&A sessions, a question was raised by a part-time student joining the symposium by Zoom. The student mentioned Singapore had used POFMA to remove anti-vaccination Facebook posts which contained false information about Covid-19 vaccines, and that seemed to have helped raise the vaccination rate in that jurisdiction. Hong Kong did not seem to have done enough to deal with fake news vis-à-vis Covid-19 vaccines. The student then asked whether a Hong Kong version of POFMA would help Hong Kong deal with the Covid-19 pandemic.

In reply to that question, one of the panellists, Professor Cherian George, who was a native of Singapore, accurately reminded everyone Singapore was never a party to the ICCPR, so that transplanting Singaporean media laws to Hong Kong may not work.

I must say Thailand was a party to the ICCPR, but that never stopped Thailand from having some of the strictest media laws in the world. Indeed, Section 112 of the Criminal Code of Thailand currently says a person found guilty of defaming the Thai King can be sent to prison for 15 years for each act of defamation. In January 2021, Anchan Preelert, a Thai lady in her 60s, was convicted by a Thai Court of 29 counts of criminal defamation. The Court said each count should attract a 3-year custodial sentence, each of which should be served consecutively, making the starting point an 87 years’ imprisonment. Giving full credit to Anchan Preelert’s timely guilty plea, the ultimate sentence was reduced to 43 years’ imprisonment, meaning she would be just about over 100 years old at the end of it. BBC, CNN, the Financial Times, Reuters and RTHK reported it.

Similarly, the Russian Federation was also a party to the ICCPR. That fact did not stop the Russian Federation from enacting a “fake news law” on 4th March 2022, making the malicious defamation of the Russian Federation’s military forces a crime punishable by 15 years’ imprisonment.

Should we choose to keep our crime of defamatory libel, exactly as set out in Section 5 of our Defamation Ordinance, we can at the very least say the maximum sentence is not even half as long as the one set out in Section 112 of the Criminal Code of Thailand, or half as long as the one set out in the Russian Federation’s new “fake news law”, but I very much doubt whether journalists in Hong Kong would find that sufficiently reassuring.

With all of the above in mind, what do you all think Hong Kong should do? I shall leave that question open for all of you to consider.

Kenneth K Y Lam

Barrister, Jason Pow SC’s Chambers

Kenneth K Y Lam is a Barrister in private practice. Called to the Bar in 2004, he sat as a Deputy District Judge, and as a High Court Master. He is a Fellow of the Hong Kong Institute of Arbitrators, and a member of Jason Pow SC’s Chambers. He acted for the successful plaintiff in the Social Media Libel case of Chow Wing Kai v Liang Jing [2021] 2 HKLRD 1189. He is recognized as a Leading Junior of the Hong Kong Bar by Legal 500 (Asia Pacific, 2022).

在香港，永久形式誹謗是侵權行為（即民事過失），也是刑事罪行。雖然隨著英國《2009年死因裁判官和公義法案》第73條生效，英格蘭和威爾斯已於2010年1月12日廢除了古老的「永久形式誹謗罪」，香港從未廢除相同罪行。香港應否繼續把永久形式誹謗定為刑事罪行？

我們現今的誹謗法的根源可以追溯至13世紀的英格蘭。當時教會法庭對所有誹謗事項行使刑事管轄權。這段史實有詳細文獻紀錄。Richard Helmholz教授正確地把它描述為「令人費解」（參見Richard Helmholz《The Cannon Law and Ecclesiastical Jurisdiction from 597 to the 1640s》第11章）。至1582年，英格蘭星室法庭亦曾經判定一個人刑事誹謗罪罪成，並判處他「鞭刑及枷刑」（參見Sir John Baker《An Introduction to English Legal History (5th Edition)》第25章）。

時至今日，香港的《誹謗條例》（第21章）第5條仍規定如下：

「任何人惡意發布他明知屬虛假的誹謗名譽的永久形式誹謗，可處監禁2年以及被判繳付法院判處的罰款。」

可幸鞭刑及枷刑現在都不是這項成文法罪行的合法判刑選擇。

在香港有被報導的判決中，最後一宗把永久形式誹謗視為刑事罪行而非民事侵權行為的，應該是極為有趣的 Chiu Chut-Fong v Law Chup [1973] HKLR 36案，由麥慕年法官（後來出任終審法院非常任法官，已故）於1972年12月29日判決。

當時，《新報》發表了一篇文章，指控死者Lee Yau-Kong先生是毒販，並曾一度密謀謀殺他的一些僱員。由於對死者進行誹謗不能以民事侵權法律提出訴訟，其遺孀Chiu Chut-Fong申請法庭許可對該報的編輯提出刑事檢控。她有幸聘任到當時僅3年資歷的新晉大律師鄧國禎，出席麥慕年法官主持的口頭聆訊。學識淵博的麥慕年法官批准了她的許可申請，並在判詞中指出（第52和53頁）：

「不需巨大的想像力也意識到，無論報刊的目的為何，它必然會給死者家屬帶來巨大的恥辱。那些言詞假如並非屬實，必須予以反駁和修正，但除了申請人現在尋求的途徑以外，沒有任何合法的補救方式。另一方面，如果她未能證明必要的意圖，或那些言詞屬實，她只會令對自己的傷害更大。風險全在她身上，我認為允許她依法尋求與丈夫的指控者對質，沒有任何問題或不公正之處。對我而言，法律給予新聞記者很大自由度刊印涉及公眾利益的事項，而保障個人不受濫用這種自由的損害，本身就是公眾非常關注的問題。基於這些原因，申請人獲准進行起訴。」

然而，更有趣的是，這位學識淵博的法官確認了把永久形式誹謗定為犯罪（而不僅是侵權）的法理及／或社會政策基礎。根據麥慕年法官的判詞（第48頁），不論永久形式誹謗是針對生者還是死者：

「兩個情況均應視為刑事罪行的基礎，是它們均威脅公共安寧，而其依據均為某些冒犯言論的嚴重程度足以影響在世人士的行為。」

換言之，至1972年，香港已經有充足的認知，永久形式誹謗被制定為刑事罪行的原因，是香港有需要阻嚇假新聞的惡意散佈，因為冒犯言論可能引起社會騷亂，對社會大眾帶來不良影響。維護公眾安寧對整個社會都有好處，因此以刑事法阻嚇散播被認定為恰當。

回到2022年，我們現在是否需要比以往更頻繁地援引《誹謗條例》第5條下的永久形式誹謗罪，以杜絕大眾通過Twitter、WhatsApp、Telegram、Facebook、Instagram、LIHKG.com、discuss.com.hk等媒體或平台惡意傳播假新聞？還是，援引永久形式誹謗罪，對《基本法》第27條保障的言論自由來說，必然是不可接受或至少是不成比例的侵犯，正 Lord Lester of Herne Hill QC在《香港法律學刊》（2012年第42期第731頁）「Free Speech, Reputation and Media Intrusion: British Law Reform and Its Implications for Hong Kong and Beyond」所指，該罪行應在本司法管轄區廢除？

英國最近的事態發展可以啟發我們尋找最佳前進方向。

2021年7月，英國法律委員會發表了一份長達239頁關於「把與通訊有關的刑事罪行現代化」的最後報告，建議就發送或張貼已知為虛假的信息，訂立新的罪行。雖然英國有評論認為這只是糟透地嘗試把英格蘭和威爾斯在約11年前高調地廢除的刑事誹謗罪起死回生，但代表英國政府的Chris Philp MP於2022年2月4日簽署了一封公開信，確認政府接受英國法律委員會的建議，並承諾會「盡快」制定新的法定罪行，務求令到惡意發佈虛假言論可在新的法例條文下被刑事起訴。

2022年3月17日，英國政府正式向議會提交了長達225頁的《網絡安全法案》，當中第151條內容如下：-

「虛假通訊罪

任何人在以下情況下即屬犯罪—(a) 該人士發送信息（見第153條），(b) 該信息傳達該名人士明知是虛假的資料，(c) 在發送該信息時，該名人士擬透過該信息或當中的資料，對可能受眾造成重大的心理或身體傷害，及(d) 該人士沒有合理的理由發送該信息。
就本罪行而言，若在發送信息時可以合理地預見以下情況，個人是信息的「可能受眾」。該個人：(a) 會接觸到該信息，或(b) 就網絡而言，會接觸後續的信息轉發或分享信息的內容。
在幾個或多個個人是「可能受眾」的情況下，就第(1)(c)條的目的而言，該人士無須打算對當中任何一個人（或對他們所有人）造成傷害。」

有趣的是，該草案條文似乎是說只有對「可能受眾」造成的傷害，才算犯罪，而名譽或金錢上的傷害，則應完全排除在外。

當然，由於英國《網絡安全法案》才剛剛提交予議會，故其範圍可能甚至多數會有所更改。

香港應否參考英國的做法，廢除古老的永久形式誹謗罪，訂立新的法定罪行取而代之，使處理假新聞的方式更現代化？

2021年7月7日，在中大、浸大及港大新聞學院合辦的視像專題研討會上，著名專家組成的兩個討論小組，曾經就「香港的錯誤信息和虛假信息：立法是否答案？」這個非常議題分享意見。

由於該研討會歷時3小時，嘗試以本文有限的篇幅作出總結，對所有講者都不公平。然而，我需要指出其中一位小組講者湯家驊資深大律師有明智地提醒大家，《公民權利和政治權利國際公約》第十九條的確實用詞如下：

「(一) 人人有保持意見不受干預之權利。

(二) 人人有發表自由之權利；此種權利包括以語言、文字或出版物、藝術或自己選擇之其他方式，不分國界，尋求、接受及傳播各種消息及思想之自由。

(三) 本條第(二)項所載權利之行使，附有特別責任及義務，故得予以某種限制，但此種限制以經法律規定，且為下列各項所必要者為限—

(甲) 尊重他人權利或名譽；或

(乙) 保障國家安全或公共秩序，或公共衞生或風化。」

考慮到香港遵守《公民權利和政治權利國際公約》第十九條十分重要，他指出通過立法處理棘手的假新聞問題的各種實際困難包括：

(1) 執法；

(2) 定義；及

(3) 界限。

在執法方面，問題不僅在於虛假信息的數量或傳播速度，而是假新聞可能源自或通過香港法院無法控制的海外公司傳播到香港。

在定義方面，困難是顯而易見的。「假新聞」一詞本身就很難定義，真實的東西可以很快變成虛假。湯家驊資深大律師舉了一些例子，但是我想引用聖誕老人的例子。如果你知道聖誕老人根本不存在，而隨處可見的聖誕卡上描繪的飛天馴鹿現象是不誠實地捏造的虛假陳述，你可以告訴孩子它們是真的嗎？如果某些傳奇故事、神話、民間傳說和宗教文本應不受新法律的約束，我們又該如何定義它們呢？

在界限方面，我們必須小心避免立法過於進取，導致終審法院在仔細審查後宣佈其違憲。毋庸置疑的是，正如言論自由永遠不應沒有限制，對言論自由的限制也不應過於嚴苛。

該研討會的另一位小組講者Rachel Blundy女士，當時是法新社亞太地區高級事實查核編輯，常駐香港。

她被問到這個問題：

「法新社已在許多實施了所謂『假新聞法』或類似法律的亞洲國家運作。你和法新社的同事有沒有因為這些法律而在這些地方進行事實查核和其他新聞活動時遇到任何困難？」

讀者可以在HKU Journalism的官方YouTube頻道搜索完整視頻，觀看她對這個問題的完整和詳細回應。她提出的最重要一點是，儘管新加坡在2019年訂立了《網路假資訊和網路操縱保護法》（POFMA），但法新社在新加坡並沒有遇到麻煩。她說，她注意到與印度、香港或印尼等地相比，新加坡需要她們進行事實查核的錯誤信息確實「較少」，但她強調，大家或許應該注意POFMA還過濾了「甚麼其他」資訊。

談到POFMA，我或許應該補充一點。在研討會的問答環節中，一位透過Zoom參加該研討會的兼讀學生提出了一條問題。該名學生提到，新加坡曾引用POFMA刪除了Facebook上反對接種疫苗的帖子，當中包含有關Covid-19疫苗的虛假信息，而這似乎有助提高當地的疫苗接種率。香港在處理與Covid-19疫苗相關的假新聞方面，似乎做得不夠。該學生隨後詢問香港版本的POFMA是否會有助香港應對Covid-19疫情。

新加坡土生土長的小組講者Cherian George教授在回答這條問題時準確地提醒大家，新加坡從來都不是《公民權利和政治權利國際公約》的締約國，因此把新加坡的媒體法移植至香港可能行不通。

我必須說，泰國是《公民權利和政治權利國際公約》的締約國，但這個事實並沒有阻止泰國擁有世界上最嚴格的媒體法。事實上，泰國刑法典第112條目前規定，誹謗泰王罪名成立者，每項誹謗行為可被判入獄15年。2021年1月，一名60多歲的泰國女士Anchan Preelert被泰國法院裁定29項刑事誹謗罪罪成。法院表示，每項罪名應被判處3年監禁，每項判刑分期執行，量刑起點為監禁87年。考慮到Anchan Preelert及時認罪，最終判決減至監禁43年，即她在刑期結束時已100多歲。英國廣播公司、美國有線電視新聞網、《英國金融時報》、路透社和香港電台均對此進行了報導。

俄羅斯聯邦同樣也是《公民權利和政治權利國際公約》的締約國，但這個事實並沒有阻止俄羅斯聯邦於2022年3月4日頒佈「假新聞法」，將惡意誹謗俄羅斯聯邦軍隊的行為定為犯罪，可處以15年監禁。

如果我們選擇保留《誹謗條例》第5條下的永久形式誹謗罪，我們最少可以說我們的最高刑期不及泰國刑法典第112條的最高刑期或俄羅斯聯邦「假新聞法」的最高刑期的一半，但我很懷疑身處香港的記者會否認為這樣已足夠令他們感到安心。

綜觀以上種種，大家覺得香港應該怎樣做？我把這個問題留給大家考慮。

林嘉仁

鮑永年資深大律師辦事處大律師

Film Producer Bizhan Tong Sues Amos Wong (黃浩然) For Defamation

https://hk.on.cc/hk/bkn/cnt/news/20220413/bkn-20220413185159149-0413_00822_001.html

Anson Lo新片導演入稟民事控告電影監製誹謗

早前有報道指MIRROR成員Anson Lo將進軍英語市場，參與拍攝一齣喪屍片，惟影片未開鏡已惹出是非。該片導演於昨日（12日）入稟高院，指遭本地電影監製黃浩然誹謗他是騙子，因此要求法庭針對有關言論頒發禁制令，禁止黃再發布相關言論，另要求黃道歉及賠償，但入稟狀未有列明索償金額。本案原告Bizhan Modarressi Tong，被告則為黃浩然，又名Amos Wong及Amos Why。原告在入稟狀指，被告為一名本地電影監製。被告在今年 3月15日於其個人facebook及Instagram帳戶發貼文，指「其實呢條Bizhan Tong係騙子」，相關貼文被廣泛流傳。原告強調上述貼文並非事實，並指被告是明知其言論不實，發布前並無找原告求證，發布是出於想傷害原告，影響他的聲譽，又或是出於恨意或嫉妒，又認為被告想透過行為增加知名度。由於上述理由，原告除要求法庭頒令被告向他作一般賠償，還要求加重及懲罰性賠償。案件編號：HCA 331/2022

https://hd.stheadline.com/news/realtime/hk/2328575/

英國導演入稟告導演黃浩然誹謗追討損失及要求道歉

有外媒早前報道英國導演Bizhan Tong今年將開拍外語喪屍片《重慶大廈》，MIRROR成員盧瀚霆亦傳有份參與。Tong昨入稟高等法院，指控《緣路山旮旯》導演黃浩然（Amos）今年3月在網上指稱Tong是騙子的言論屬誹謗。Tong要求法院頒布禁制令，禁止對方發布有關誹謗言論、收回誹謗言論或作出澄清、作出道歉，並追討相關損失。

原告為Bizhan Modarressi Tong，被告為黃浩然（洋名Amos Wong及Amos Why）。入稟狀指，被告今年3月在Facebook及Instagram發布「其實呢條Bizhan Tong係騙子」的言論構成誹謗。

入稟狀指，原告從來不是騙子，被告在未有接觸原告及讓原告解釋便稱原告是騙子，其主要目的是損害原告的名聲，或出於妒忌原告。

入稟狀續指，相關誹謗言論令被告增加知名度。被告在發布言論後沒有把握機會澄清誹謗言論及致歉，使原告的聲譽嚴重受損，亦令原告感到痛苦、尷尬和受情感傷害。

https://ol.mingpao.com/ldy/showbiz/latest/20220413/1649852695598/

喪屍片英國導演入稟控導演黃浩然誹謗要求道歉及賠償

今年3月有報道指MIRROR成員盧瀚霆（Anson Lo）將參與拍攝英國導演Bizhan Tong執導的喪屍片《Chungking Mansions》（重慶大廈），同片演員還有韓國男星崔時訓、日本女星武田梨奈、李施嬅及陳瀅等。不過，香港導演黃浩然以「Amos」名字在社交網轉發有關《重慶大廈》拍攝報道時，稱Bizhan Tong過往會以電郵或透過某些藝人經理人公司接洽，但有時藝人未落實演出已向傳媒透露拍攝消息，其實只是初步聯絡，仍未簽約，或者最終未必能開拍。至於Anson Lo經理人花姐（黃慧君）接受訪問時透露只是洽談中，未落實合作。

昨日Bizhan Tong發聲明，表示會對黃浩然的誹謗提起民事訴訟。聲明內容指：「當我得知Amos如何向我投擲社交媒體手榴彈時，一個他在發表聲明之前從未見過或互動過的人，以至於我感到困惑，想知道他這樣做是否是為了自我推銷，並對他如何將社交媒體武器化以對我的性格和聲譽造成最大傷害感到震驚。」他又表示自己一生中從未被指控犯有欺詐行為：「在我的生活中，我從來沒有也從來沒有被指控犯有任何形式的犯罪行為。我相信，而且我認為大多數人都會同意，指責某人是欺詐者是對他性格的嚴重指控。儘管我試圖解決Amos對我的任何誤解，但我被他無緣無故地屏蔽和/或列入黑名單。為了維護我和我的製作團隊的聲譽，我別無選擇，只能對Amos的誹謗提起民事訴訟。」

Bizhan Tong昨天（12日）亦入稟高等法院，指稱黃浩然在網上發文誹謗他為「騙子」，要求法庭頒禁制令，禁止黃浩然繼續發布有關言論，並要求對方道歉、澄清及作出賠償。

原告為Bizhan Modarressi Tong；被告為黃浩然（洋名Amos Wong及Amos Why）。入稟狀指，被告今年3月15日在其Facebook個人專頁及Instagram上發文誹謗原告，該帖文在香港及整個行業上流傳。原告指，有關言論並不真確，被告沒有給予他解釋或回應的機會便公開發布有關言論，是出於嫉妒和懷有敵意，目的是損害原告的聲譽，並藉此增加被告本人的知名度。原告又指，被告事後沒有澄清言論及致歉，除了令他名譽受損外，亦令他感到尷尬及痛苦。

https://www.hk01.com/%E7%A4%BE%E6%9C%83%E6%96%B0%E8%81%9E/758909/%E9%82%80anson-lo%E6%8B%8D%E7%89%87%E8%8B%B1%E5%B0%8E%E6%BC%94-%E6%8C%87%E6%B8%AF%E5%B0%8E%E6%BC%94%E6%88%96%E5%87%BA%E6%96%BC%E5%A6%92%E5%BF%8C%E8%AA%B9%E8%AC%97-%E6%B1%82%E9%81%93%E6%AD%89%E5%8F%8A%E7%B4%A2%E5%84%9F

邀Anson Lo拍片英導演指港導演或出於妒忌誹謗求道歉及索償

早前有報道指Mirror成員Anson Lo盧瀚霆獲邀拍喪屍西片《重慶大廈》(Chungking Mansions)，聲稱正籌組拍攝該片的英國導演Bizhan Tong，昨（12日）入稟高等法院，控告香港導演黃浩然在其Facebook專頁對他作出誹謗，令人誤會他是騙子，以致他的聲譽受損，又認為黃是出於妒忌，或想增加知名度而誹謗他，又指黃拒道歉並稱要抗辯到底，有如在其傷口上灑鹽，因而入稟高等法院，要黃賠償及道歉，並要求禁止黃再發誹謗言論。

原告Bizhan Modarressi Tong，被告為黃浩然（又名為Amos Wong及Amos Why）。入稟狀指出，原告是一名導演及製作人，在香港、英國等地享負盛名，曾負責執導劇藝人陳瀅有份參演的劇集《Forensic Psychologist》。他指黃在本年3月15日在其個人Facebook帳戶作出誹謗言論，令人誤以為原告是騙子。原告指該些言論帶有惡意，因為黃知道這非事實，又指黃發佈的動機，是為損害原告在娛樂圈的競爭力，或是出於憎恨或妒忌，又或者為增加黃個人的知名度。原告又指，黃曾有機會可以澄清說法或向原告道歉，但黃收到原告的律師信後，沒有這樣做之餘，反而透過律師表示會抗辯到底，原告認為這是在其傷口上灑鹽。原告稱他的聲譽因為黃的言論嚴重受損，因此就誹謗言論向黃索償，並要求法庭頒令禁止被告再發佈有關言論，以及要求黃道歉。

案件編號：HCA331/2022

https://topick.hket.com/article/3228140

【民事訴訟】黃浩然疑IG發文抹黑《重慶大廈》　導演Bizhan Tong發聲明告誹謗

https://hk.on.cc/hk/bkn/cnt/entertainment/20220412/bkn-20220412220237528-0412_00862_001.html

導演被指「騙子」！Anson Lo喪屍片驚爆誹謗官司

藝人Anson Lo早前被指將染指英美市場拍喪屍片，想不到未開鏡已惹出是非，該片導演今日（12日）入稟控告網民誹謗，用詞相當強硬，誓要為自己及製作團隊討回公道。

美國娛樂雜誌《Variety》上月報道指稱，AL將夥拍陳瀅、李施嬅及韓星高俊熙等，演出由英國團隊製作的喪屍電影《Chungking Mansions》（重慶大廈），預算7月開鏡。電影講述一班來自世界各地的人遭喪屍突襲，必須想辦法闖入重慶大廈的故事。據悉AL將扮演一名大膽青年，高俊熙則是出席時尚活動發布會的模特兒，而李施嬅及陳瀅則飾演兩姊妹，單是卡士已見號召力十足。

然而該片導演Bizhan Tong今午突發聲明，表示遭名為「Amos Why 黃浩然」的網民誹謗，對方於網上指控他是「騙子」，未與演員們達成合作協議便對外公布消息。Bizhan Tong表示自己與對方素未謀面，令他很是疑惑：「想知道他這樣做是否為了自我推銷，並對他如何將社交媒體武器化，以對我的性格和聲譽造成最大傷害感到震驚。」

由於先後多次於社交網意圖向對方了解卻得不到回應，故Bizhan Tong決定透過民事訴訟為自己討回公道。「Amos Why 黃浩然」目前已於網上刪除相關貼文，而其資料與《逆向誘拐》導演黃浩然的資料相同，東網曾嘗試聯絡黃導，但未獲回覆。

https://skypost.ulifestyle.com.hk/article/3228261/

《重慶大廈》導演Bizhan Tong今日發聲明，控告《緣路山旮旯》導演黃浩然（Amos）誹謗。有指黃浩然曾在社交網轉發有關《重慶大廈》的報道，稱有人過往曾透過電郵或經理人公司接洽藝人，但未待藝人落實演出，已向傳媒透露拍攝消息，其實雙方只是初步聯絡，仍未簽約。Bizhan Tong在聲明中表示，自上月宣布《重慶大廈》演員表後不久，他便注意到Amos的誹謗言論，對方指他是欺詐者。Bizhan Tong說：「當我得知Amos如何向我投擲社交媒體手榴彈時，一個他在發表聲明之前從未見過或互動過的人，以至於我感到困惑，想知道他這樣做是否是為了自我推銷，並對他如何將社交媒體武器化以對我的性格和聲譽造成最大傷害感到震驚。」

Bizhan Tong指Amos的言論不但詆毀了他，也詆毀了所有與他相關的人，包括演員和工作人員。Bizhan Tong在聲明中說：「Amos出於自我推銷或其他個人目的發表的誹謗性言論損害了我在行業中有效運作的能力，通過毫無根據地抹黑我的名字來播下懷疑和分裂，並迫使我分配大量時間、成本和資源來解決問題。當我應該專注於我的作品時，取而代之是處理他造成的傷害。」

https://hd.stheadline.com/life/ent/realtime/2328329/

Anson Lo喪屍片監製入稟控告導演黃浩然誹謗

MIRROR成員盧瀚霆（Anson Lo）被指有機會衝出國際，今年3月有報道指他獲英國導演兼監製Bizhan Tong賞識，處男拍喪屍電影《重慶大廈》（Chungking Mansions），電影更匯集了美日韓等不同國藉演員，陳瀅、李施華亦會參與演出。

其後香港導演黃浩然以「Amos」名字在社交平台發言，並轉發有關《重慶大廈》拍攝報道，質疑導演兼監製Bizhan Tong的背景，指他執導的作品5隻手指數得晒，又質疑他所獲得的獎項是否用錢買回來；而過往會以電郵或透過某些藝人經理人公司接洽，但有時藝人未落實演出已向傳媒透露拍攝消息，憂對方借Anson Lo的名氣吸金。而花姐日前接受傳媒訪問時直認仍在洽談中，仍未落實合作。

而Bizhan Tony於今日（12日）透過Phoenix Waters Productions，入稟高等法院告黃浩然誹謗，指內容涉及誣衊成份。Bizhan並發出聲明，指相關言論感到困擾︰「當我得知Amos 如何向我投擲社交媒體手榴彈時，一個他在發表聲明之前從未見過或互動過的人，以至於我感到困惑，想知道他這樣做是否是為了自我推銷，並對他如何將社交媒體武器化以對我的性格和聲譽造成最大傷害感到震驚。」

Bizhan Tong指自己一生中從未被指控犯有欺詐行為，而作為一個有項目要發行的製片人，Amos的言論不僅詆毀了他，還詆毀了所有與他相關的人，包括為最近付出了難以置信的努力和工作的演員和工作人員。Bizhan Tong亦曾主動向對方解釋，但就被對方屏蔽和/或列入黑名單處理，故在聲明中表示︰「為了維護我和我的製作團隊的聲譽，我別無選擇，只能對Amos的誹謗提起民事訴訟。」黃浩然回覆傳媒時稱事件已交律師處理，沒有再作解釋。

https://news.mingpao.com/pns/%E5%A8%9B%E6%A8%82/article/20220414/s00016/1649873599521/

盧瀚霆喪屍片導演被指「騙子」 Bizhan Tong 入禀告黃浩然誹謗要求道歉賠償

【明報專訊】英國導演Bizhan Tong將執導喪屍片《Chungking Mansions》（重慶大廈），有傳MIRROR成員盧瀚霆（Anson Lo）有份參演。Bizhan Tong昨（12日）入稟高等法院，指稱香港導演黃浩然在網上發文誹謗他為「騙子」，要求法庭頒禁制令，禁止黃浩然繼續發布有關言論，並要求對方道歉、澄清及賠償。原告為Bizhan Modarressi Tong；被告為黃浩然（洋名Amos Wong及Amos Why）。入稟狀指被告今年3月15日在其facebook個人專頁及Instagram上發文誹謗原告，該帖文在香港及整個行業流傳。原告指有關言論並不真確，被告沒有給予他解釋或回應的機會便公開發布有關言論，是出於嫉妒和懷有敵意，目的是損害原告的聲譽，並藉此增加被告本人的知名度。原告又指被告事後沒有澄清言論及致歉，除了令他名譽受損外，亦令他感到尷尬及痛苦。Bizhan Tong前日發聲明表示，「通過毫無根據地抹黑我的名字來播下懷疑和分裂，並迫使我分配大量時間、成本和資源來解決問題。當我應該專注於我的作品時，取而代之是處理他造成的傷害。」他為維護自己與製作團隊的聲譽，只能對誹謗提出民事訴訟。【案件編號：HCA 331/22】

Jowers v Kinney [2019] 5 HKLRD 686 (Master Kenneth K Y Lam) – Specific Discovery in Hong Kong Defamation Actions – [2019] HKCFI 2791

Jowers v Kinney [2019] 5 HKLRD 686 (Master Kenneth K Y Lam) – Specific Discovery in Hong Kong Defamation Actions – [2019] HKCFI 2791

https://jowersvkinney.blogspot.com/2020/01/jowers-v-kinney-2019-5-hklrd-686-master-kenneth-k-y-lam-specific-discovery-in-hong-kong-defamation-litigation.html

https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=125392&currpage=T

P1-2 commenced an action against D1-2 relating to emails allegedly defamatory of P1 (Emails) and issued a writ with a general indorsement but had not yet served their statement of claim. Although P1 had hard copies of the Emails, Ps sought specific discovery by Ds under O.24 r.7 of the Rules of the High Court (Cap.4A, Sub.Leg.) (RHC) because, based on conversations with certain persons (Contacts), P1 believed there must have been substantially more defamatory acts other than the Emails. Ps submitted that the discovery was necessary to enable them to plead their case with precision in their statement of claim. Ds objected, arguing inter alia that Ps’ application made under O.24 r.7 instead of s.41 of the High Court Ordinance (Cap.4) (the HCO) was an abuse of process.

Held, dismissing Ps’ application, that:

(1) The mere fact that Ps invoked O.24 r.7 instead of s.41 of the HCO did not per se constitute an abuse of process. Firstly, applications for specific discovery could be made “at any time” including before service of pleadings. Secondly, Civil Justice Reform (CJR) enlarged the scope of pre-action discovery without removing the words “at any time” in O.24 r.7 which indicated that the reform was meant to provide an additional choice rather than to substitute one route with another. Thirdly, Ps had already issued a writ. It would be plainly wrong to require them to discontinue this action, apply for pre-action discovery and then commence a fresh action, which would be a waste of time and costs and contrary to the underlying objectives of CJR (Lim Siew Peng v Glaxo Wellcome Hong Kong Ltd [1997] 3 HKC 802 applied). (See paras.13-17.)

(2) Pleadings played a more important role in defamation litigation than in any other species of common law actions. However, as P1 had not attempted to ask for copies of relevant documents from his Contacts and there was no evidence that a request, made formally, would have been refused, an order for specific discovery against Ds was unnecessary at this stage. This was fatal to Ps’ application (Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173, Chang Wa Shan v Esther Chan Pui Kwan (2018) 21 HKCFAR 370 considered). (See paras.19, 25.)

(3) The scope of the discovery sought was so impermissibly wide as to be “fishing” and “oppressive”. Given that Hong Kong still followed the common law rule of “multiple publication”, Ps’ application seemed like an attempt to fish for new causes of action, when Ps were already capable of drafting their statement of claim on the materials they possessed (Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426 distinguished). (See paras.18, 26-28.)

Ho Kwan Yiu v Dennis Kwok & Others [2022] HKCFI 779 – Slander Case “Uniquely Suitable” for a Jury Trial

https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=143006&currpage=T

Coram: The Hon Madam Justice Queeny Au-Yeung

Date of Decision: 18 March 2022

Representation:

Mr Sunny Chan, instructed by K.C. Ho & Fong, for the Plaintiff

Mr Kenneth Lam, Mr Jun Lee and Mr Vincent Shum, instructed by John C H Suen & Co, for the 1^st and 3^rd Defendants

Mr Erik Shum and Ms Christy Wong, instructed by Ho, Tse, Wai & Partners, for the 2^nd Defendant

Decision:

This is a high profile case in slander. The parties were, at all material times, members of LegCo. The plaintiff alleges that offending words were uttered by the defendants implicating the plaintiff as being associated with triad members. The main defences are one of justification and a Reynolds defence.
By a consent summons, the parties apply for a trial before a bilingual judge and a jury. A Master directed that the application be dealt with by a judge in chambers.
The starting point is section 33A(1) of the High Court Ordinance, Cap 4, which provides that where on the application of any party to an action, the Court is satisfied that there is in issue a claim of slander, the action “shall be tried with a jury, unless the Court is of the opinion that the trial requires any prolonged examination of documents … which cannot conveniently be made with a jury.”
This section is distinguishable from section 11 of the UK Defamation Act 2013 which removed the statutory presumption in favour of jury trials for defamation actions commenced in England on or after 1 January 2014.
Mr Kenneth Lam (with Mr Jun Lee and Mr Vincent Shum) submit that for defamation actions, the norm is for the action to be tried with a jury if one party so chooses, unless the proviso applies: DR Esthetic Product v Next Magazine Publishing Ltd HCA 2776/2006, 21 August 2009, §13, DHCJ Au (as he then was).
Having considered the submissions of counsel, I am of the view that this case is suitable for trial by a jury for the following reasons:
Firstly, there is huge public interest in this slander action due to the following indisputable background:
(1) At all material times, all the parties to this action were elected and serving members of Legco;
(2) The plaintiff was/is also a solicitor in private practice, a Justice of the Peace, and a former President of the Law Society of Hong Kong. He has been re-elected and is a serving member of Legco;
(3) D1 was/is a barrister in private practice, and the then only representative of both branches of the legal profession in Legco; and
(4) The 21 July Incident was a significant incident in Hong Kong which is of large public interest.
Secondly, in respect of the defence of justification, D1 and D3 shall seek to establish 3 facts as true at the trial (§9 of their defence):
(1) That the plaintiff was associated with gangsters and behaved like one;
(2) That the plaintiff was a shameful person who knew gangsters and instructed them to do things for him; and
(3) That the plaintiff was the primary culprit or one of the culprits in the 21 July Incident.
As Steven Rares, a judge of the Federal Court of Australia, has aptly stated in his article entitled “The jury in defamation trials” (2010) 33 Australian Bar Review 93: “One of the great virtues of having a jury try the substantial factual issues in a defamation action is that, particularly in mass media cases, they represent the very audience to which the defamatory publication was addressed. In assessing whether or not a publication, first, is defamatory in the sense complained of and, second, has been defended under defences such as truth, honest opinion or fair report, a jury of ordinary reasonable people is able to evaluate the competing factual issues bringing to bear the moral and social standards they share with the community at large. And, they are better placed than judicial officers to assess how ordinary reasonable people understand mass media publications. (at p99) In my opinion the issues which go to the heart of a defamation trial are best determined by a cross section of ordinary citizens bringing to bear their experience of life. (at p104)”
Given the public interest involved and the scope of the justification issue, I am of the view that the jurors, representing the public, are the most suitable persons to determine if there was defamation or justification and decide on the reputation of the plaintiff in the public eye.
Thirdly, the Reynolds’ issue involves a novel question of law, i.e. whether words uttered by members of Legco whilst they were having an “off-site” meeting outside the Legco Building in Admiralty are immune from action in the law of defamation by reason of common law absolute privilege or by reason of Article 77 of the Basic Law and/or sections 3 and 4 of the Legislative Council (Powers and Privileges) Ordinance, Cap 382 (§§3.8 and 3.9 of D1 & D3’s defence).
That question of law is distinct and separable from the rest of the action. There is little risk of the jury being confused as to the role between judge and jury.
The defendants further plead Reynolds qualified privilege and reply-to-attack qualified privilege (§§11 and 12 of D1 & D3’s defence). The plaintiff’s reply contains 2 pleas of malice (§§8 and 9 of reply). These can be dealt with by requiring the jury to return special verdicts on the allegations of malice. The Court of Final Appeal has, in Jonathan Lu v Paul Chan Mo Po (2018) 21 HKCFAR 94, §§37-40 authoritatively set out the way to direct the jury.
This is unlikely to be a case where the jury has to answer an “exam paper” at the end of the trial.
Fourthly, this court is told that the documents involved at the trial will not be voluminous. As a maximum, according to the defendants, the documents are likely to comprise only 3 lever-arch files, totaling about 559 pages, with some video clips concerning well-known public events. They are already in the public domain and a juror should have little difficulty understanding them.
The documents are mostly press articles, which members of the public are used to reading in their daily lives. They can be read casually, and the contents do not contain technical terms. Those documents do not require prolonged examination as contemplated by section 33A of the High Court Ordinance. I am satisfied that the key documents which need to be placed before the jury are in fact manageable.
The trial is likely to take no more than 10 days with a jury and it cannot be seriously argued that the trial will be substantially prolonged because of there being a jury.
Fifthly, in the cases cited in paragraphs 5-9 above, one of the parties had objected and the court had to exercise its discretion to order or not order a jury trial. In the present case, all the parties are represented by counsel and have consented to a jury trial. Although the court is not bound by their consent, this is a case where the parties have made an informed and correct choice.
In the light of the 5 factors above, I am satisfied that this case is uniquely suitable for a jury trial. I therefore give an order in terms of the consent summons dated 10 November 2021.
I thank counsel for their assistance.

Jury Trials In Defamation Actions: Yes, Or No? – By Kenneth KY Lam, Barrister, Jason Pow SC’s Chambers

Exclusively Online January 2022

Each case is different. The fact that a jury trial has been ordered in one defamation action does not mean it must be ordered in an unrelated defamation action. There must, however, be some general principles on the issue so that judicial officers can act on a principled basis, and consistently. What are those general principles?

A convenient starting point is the text of Section 33A of the High Court Ordinance (Cap 4), which provides that where on the application of any party to an action the CFI is satisfied there is in issue a claim of, inter alia, libel, the action “shall be tried with a jury, unless the Court 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”. The key words there are “shall”, and “unless”.

By reason of those words, in DR Esthetic Product v Next Magazine (HCA 2776 / 2006, 21^st August 2009), DHCJ Au (as Au JA then was) said (at §13) it was trite that “in a libel trial, the norm is that the action shall be tried with a jury if one party so chooses,” unless the proviso applied.

The proviso is tricky. It always was. Most cases involve some degree of “examination of documents”. But when is the examination “prolonged”? And when would that make a trial by jury inconvenient, or otherwise inappropriate?

The tricky nature of the proviso is best illustrated by what happened in Rothermere v Times Newspapers Ltd [1973] 1 WLR 448, where an appeal on an almost identical provision in England was allowed by the English Court of Appeal by a majority of 2-to-1. There, Lord Denning MR, in favour of trial by jury and giving the lead judgment, effectively made 5 points, as follows: –

(1) The Court should consider whether the number of documents to be placed before the jury can be reduced to a “manageable” number by making “a wise selection”.

(2) The Court should consider whether the issues in dispute will fall to be determined “on a broad picture”, as opposed to “on small details”.

(3) The length and complication of a trial “of themselves are no bar to a jury”.

(4) The Court should consider whether the subject matter is “a matter of large public interest”.

(5) A judge can deal better with documents, and he will give reasons which can be reviewed by a higher court, but “the result is not always better justice”.

Lawton LJ, agreeing with Lord Denning MR on the result, emphasized different things in his judgment.

Firstly, he emphasized the issue of legislative intention. Why, he asked rhetorically, were jury trials abolished for most civil claims but explicitly preserved for actions based on torts like libel and slander? He suggested it was because the trial of such an action “is likely to end with the honour, integrity and reputation of either the plaintiff or the defendant being tarnished or even destroyed” and held that this factor “must be considered”.

Secondly, he emphasized the relevance of the public’s involvement in cases of great public interest, by saying “when the public is likely to be affected by the result of an action for defamation it may be advisable to bring the public into the administration of justice by ordering trial by jury, even though the trial may be long, the issues complex and the documentary evidence massive and formidable.”

Cairns LJ dissented. In his view, as a judge presiding over a trial without a jury must give reasons for his decisions, it is easier to correct his errors on appeal, and thus a trial by judge alone “is more likely to achieve a just result”.

Of course, we are no longer living in the year 1973. Certain things have changed.

For example, in Yeo v Times Newspapers Ltd [2015] 1 WLR 971, Warby J of the English High Court held (at §45) that as Section 11 of the UK Defamation Act 2013, which applied to all defamation actions commenced in England on or after 1^st January 2014, removed the statutory presumption in favour of jury trials for defamation actions, for most purposes “a substantial part of the reasoning” in Rothermere ceased to be relevantin England.

Hong Kong never adopted the UK’s recent statutory reforms in relation to this. However, in the local case of Martnok Thanradee v Commissioner of Police (HCA 789 / 2011, 24^th January 2014), DHCJ Marlene Ng (as she then was), after most thoroughly examining all recent authorities, also said (at §68) “the sands of time are running out for jury trial in civil matters”.

More recently, in Barilaro v Shanks-Markovina & Another (No 3) [2021] FCA 1100 (§42), Rares J of the Federal Court of Australia suggested the “unpredictability of the impacts of the Covid-19 virus and the real risk of unforeseen disruptions that may occur” should be relevant factors tipping the balance against having a jury trial in defamation actions. That was particularly interesting because some 11 years before then (i.e., before Covid), in Rares, The Jury in Defamation Trials (2010) 33 Australian Bar Review 93, the same learned judge expressed very strong views in favour of retaining the jury in defamation trials. It seems that but for the Covid issue, the learned judge might have ordered a jury trial in Barilaro.

Some other jurisdictions have different considerations.

Notably, the Constitution for the State of Virginia still provides that when it comes to mode of trial for civil actions between individuals, “trial by jury is preferable to any other, and ought to be held sacred”. And that is why Johnny Depp’s much anticipated second libel trial, the one against Amber Heard and due to take place in Fairfax, Virginia, US, on 11^th April 2022, will still be a jury trial. Whether the American jury’s factual findings in that second libel trial will be different from those of Nicol J sitting in the Royal Courts of Justice in London without a jury remains to be seen. Those readers who are interested in Nicol J’s factual findings in Depp v NGN can attempt to comb through his 129-page-judgment by searching for “[2020] EWHC 2911 (QB)”, or attempt to read just the English Court of Appeal’s succinct summary of them by searching for “[2021] EWCA Civ 423”.

Given all of the above, what will happen to jury trials in Hong Kong defamation litigation in the years to come? We shall all have to wait and see.

Kenneth K Y Lam

Barrister, Jason Pow SC’s Chambers

(Source: http://www.hk-lawyer.org/content/jury-trials-defamation-actions-yes-or-no)

Adducing Evidence Of Reputation In Defamation Actions: What Are The Rules? – By Kenneth KY Lam, Barrister, Jason Pow SC’s Chambers

Exclusively Online December 2021

It has often been said that a person’s reputation is his most valuable asset. That may well be true but attempting to put a dollar figure on that reputation or its injury can be difficult.

From time to time, parties to a defamation action would attempt to assist the Court on the issue of quantum by adducing evidence on reputation. When that happens, the Court is often caught in a dilemma. On the one hand, that kind of evidence should be welcomed because damages cannot be assessed in a vacuum. On the other hand, too much of that evidence may render the trial unmanageable. How should the balance be struck?

Over 139 years ago, in Scott v Sampson (1882) 8 QBD 491, two judges in England came up with a rule. In gist, the rule said “general evidence of reputation” should be admissible, but evidence of particular facts tending to show the character or disposition of the claimant should not be. The rule was controversial. Successive law reform committees in England, including the Porter Committee (1948), recommended its abolition by statute. Whilst the recommended statutory abolition never happened, subsequent case law made inroads into the rule.

The first significant inroad was created by Lord Radcliffe’s speech in Speidel v Plato Films [1961] AC 1090 (at 1131), where His Lordship made the very powerful point that “general evidence of reputation” may of course include “evidence citing particular incidents, if they are of sufficient notoriety” because particular incidents, if widely reported, would be “the best available evidence of a plaintiff’s reputation”. In Lord Radcliffe’s view, there was no advantage in “excluding the better form of evidence in favour of the worse”. In Dingle v Associated Newspapers [1964] AC 371 (at 398), Lord Radcliffe repeated the same view by saying “in a proper case a man’s bad reputation can be proved by giving evidence of some incident of notoriety”. The exact status of Lord Radcliffe’s dicta in those two cases was unclear.

The second significant inroad was created by May LJ’s speech in Burstein v Times Newspapers Ltd [2001] 1 WLR 579, where His Lordship reviewed previous judgments on the rule and came to the view that none of them meant to exclude “evidence of particular facts directly relevant to the context in which a defamatory publication came to be made”.

That last development effectively created what is now called “the Burstein modification”, which shifted the Court’s focus away from the distinction between what is general and what is specific, and towards the more sensible test of whether the evidence is directly relevant to the context. In Turner v News Group Newspapers Ltd [2006] 1 WLR 3469, the English Court of Appeal reaffirmed the Burstein modification.

Locally, in Goodwell Property Management Limited v Lee Hung Sing [2019] HKCA 634, our own Court of Appeal had a chance to consider the above. There, the plaintiff company (“Goodwell”) started a libel claim in respect of 4 letters (“the Letters”), copies of which were inserted into 924 letter boxes in a residential estate in Kwai Chung called “The Apex”. The publication took place in 2016. By an averment which the Court of Appeal regarded as one with little, or no, relevance, Goodwell asserted it enjoyed a good reputation in that it had, inter alia, obtained an Integrated Management System accreditation back in 2007 (§6).

According to the Court of Appeal, to “compound the indulgence in the unnecessary and/or the irrelevant on pleading”, Goodwell then filed a witness statement which spent 6½ pages setting out numerous awards and accreditations received by Goodwell, many of which did not seem to have anything to do with Goodwell’s estate management service or its quality. That provoked counter-allegations of Goodwell’s bad reputation from the defendants, who filed supplemental witness statements to set out those counter-allegations. Some parts of those statements were objected to.

Having examined those parts of the supplemental witness statements being objected to, the Court of Appeal expunged all of them. In gist, the Court of Appeal followed the approach in Burstein and focused on “the context in which the Letters came to be published in 2016”. With that in mind, the Court of Appeal considered the removal of Goodwell as manager by the owners of two different residential estates, one in Tai Hang and one in Kowloon Tong, in 2010, as irrelevant. In so saying, the Court of Appeal emphasized the readers of the Letters were limited to those within The Apex. Only Goodwell’s reputation within The Apex would be relevant to the issue of quantum. The Court of Appeal made it quite clear that had the publication of the Letters been “territory-wide”, different considerations may apply.

Although the Court of Appeal ended up expunging the objectionable materials as requested, it also urged the parties to “cease indulgence in any further interlocutory manoeuvres and to just proceed to trial” and to rely on the trial judge to “manage the trial with a firm hand” instead. To put this remark in context, by the Court of Appeal’s calculation of dates, the parties had wastedmore than a year dealing with these interlocutory arguments and their appeal, and the Court of Appeal suspected the legal costs incurred by the parties “well exceeded the amount of recoverable damages even if Goodwell should prevail at the end of the day”.

Unless a litigant brings the point higher up, or there is statutory intervention, Hong Kong Courts are quite likely to continue to adopt the Burstein approach in dealing with evidence of reputation in defamation litigation. More importantly, however, the Court of Appeal’s observations in Goodwell should serve as good reminders to all litigants and their lawyers that interlocutory applications and their appeals can be both tremendously time consuming and costly. In some cases, it may well be wiser for the parties to just proceed to trial and leave everything to the firm hand of the trial judge.

Kenneth K Y Lam

Barrister, Jason Pow SC’s Chambers

http://www.hk-lawyer.org/content/adducing-evidence-reputation-defamation-actions-what-are-rules

Stocker v Stocker [2020] AC 593 Applied in Hong Kong Libel Case – Chow Wing Kai (周榮佳) v Liang Jing (梁京) [2021] HKDC 609

In Chow Wing Kai (周榮佳) v Liang Jing (梁京) [2021] HKDC 609, Hong Kong District Judge Kent Yee applied the Stocker v Stocker [2020] AC 593 approach to a defamation case between two AIA Insurance Agents, and ruled in the Plaintiff’s favour, awarding general, aggravated and exemplary damages in the total sum of HK$300,000 against the Defendant.

Date of Judgment: 21 May 2021

“… Mr Lam makes a valid point against an over-analytical approach in interpreting the meanings of words appearing on social media such as Facebook and Twitter. He helpfully refers to a recent judgment of the UK Supreme Court in Stocker v Stocker [2020] AC 593 where Lord Kerr JSC (with whom Lord Reed DPSC, Lady Black, Lord Briggs and Lord Kitchin JJSC agreed) disapproved the trial judge’s dictionary approach (affirmed by the Court of Appeal) and explained the special features of publications on social media. I find his dictum including his citation of other decisions to be of particular relevance and use…

… In light of this authority, I agree with Mr Lam that I should put myself into the position of a social media user and take an impressionistic instead of analytical approach in ascribing meanings to the Words published by way of posts on social media…

… By the meanings of the 3rd Words, Mr Liang made grave allegations against Mr Chow in his profession. The threshold of seriousness is obviously met. I believe that the ordinary, reasonable and sensible person would possibly think less of Mr Chow personally by reason of the 3rd Words and they amount to an adverse reflection on the professional reputation of Mr Chow. Thus, I come to the conclusion that the 3rd Words are defamatory of Mr Chow…

… Mr Lam suggests… that the conduct of Mr Liang in this suit is malicious and outrageous… His conduct could be said to be outrageous and I agree that he had rubbed salt into the wounds of Mr Chow…

… For the reasons given, I conclude that the 3rd Words bore defamatory imputations referrable to Mr Chow and Mr Liang is unable to establish the defence of justification and fair comment. Judgment should be entered against Mr Liang…

… Mr Chow should be entitled to the following reliefs: (1) An injunction order restraining Mr Liang (whether by himself or via agents) from publishing, procuring and/or participating in the publication of the 3rd Words or similar words defamatory of and/or containing false allegations concerning Mr Chow; (2) An order compelling Mr Liang to immediately and permanently remove and cause to be removed the 3rd Words and all similar words defamatory of or containing false allegations concerning Mr Chow from all websites or other public platforms within his control; (3) Mr Liang do pay Mr Chow a sum of HK$250,000 as general damages and a sum of HK$50,000 as aggravated and exemplary damages; (4) Interests on the said two sums at judgment rate until payment; and (5) Costs of this action, including any costs previously reserved, to be paid to Mr Chow by Mr Liang, to be taxed if not agreed with certificate for counsel (on a nisi basis)…

… It remains for me to thank both Mr Lam and Mr Lo for their able submissions and helpful assistance in this matter…

(Kent Yee)
District Judge

Barrister Mr Kenneth Lam, instructed by LCP Solicitors, for the plaintiff Chow Wing Kai (周榮佳)

Barrister Mr Benny Lo, instructed by Au Yeung, Cheng, Ho & Tin Solicitors, for the defendant Liang Jing (梁京)

Source: https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2019/DCCJ001258_2019.docx

Hong Kong Actor Eric Tsang Sues Mainland Chinese Blogger Grace Han for Weibo Internet Libel

https://hk.on.cc/hk/bkn/cnt/entertainment/20180117/bkn-20180117163713659-0117_00862_001.html

無辜捲入性侵風波！曾志偉決定法律追究

藝人曾志偉近日無辜捲入性侵風波，今午他於尖沙咀一間酒店舉行記者會以正視聽，吸引半百記者到訪採訪，場面墟冚﹗今次記者會由無綫協助舉行，而記者會比原定遲了數分鐘開始，而一身藍色打扮的他現身時一臉嚴肅，先分別與律師及兒子曾國祥站立讓記者拍照，並由林嘉仁大律師和方兆光律師護航。

記者會開始前，先由志偉代表律師向現場記者作出簡介，表明志偉作出聲明後，不會回答任何問題。志偉即開腔：「各位新聞界朋友，最近出現咗一啲失實報道，對我個人作出嚴重指控，好影響我個人聲譽之餘，對我嘅朋友、家人及兒女造成好多不必要嘅傷害，所以我覺得自己要站出來公開回應。」

志偉表明就近日網絡流傳的「曾志偉性侵藍潔瑛」一事，他明言是完全捏造，自己絶對尊重女性，他願意配合任何形式的調查。至於網上的不實傳言，他表明要對方負上法律責任。事後，志偉在微博發出聲明。

https://hk.entertainment.appledaily.com/enews/realtime/article/20180117/57719496 【曾志偉記招】大律師稱：轉載誹謗性訊息都可能有民事法律責任

曾志偉今日由兒子曾國祥陪同下，與林嘉仁大律師及方兆光律師一同出席記者會。

今日記者會不設答問環節，曾志偉稱關於性侵之傳聞報道全屬捏造，又表明願接受任何形式之調查，以保聲譽。記者會上，曾志偉分別以廣東話及普通話交代事件後，結束前，林嘉仁大律師就作最後補充說：「大家未離開前，有一樣額外嘅嘢同大家講嘅，根據香港法律，轉載誹謗性嘅訊息，都屬於誹謗嘅，都有可能有民事法律責任，希望所有人都刪除同停止發佈，同埋停止轉載任何誹謗曾志偉先生嘅文字或者訊息，多謝大家！」

https://www.scmp.com/news/hong-kong/law-crime/article/2129676/hong-kong-film-star-eric-tsang-sues-modelling-agent-over

Hong Kong film star Eric Tsang sues modelling agent over Weibo post which caused ‘considerable distress and embarrassment’

Renowned Hong Kong filmmaker and actor Eric Tsang Chi-wai on Thursday sued a famous modelling agent to restrain her from further publications of what he claimed were defamatory accusations that seriously damaged his reputation. He also demanded unspecified damages and a court order compelling Grace Han, known in mainland China as the “godmother of modelling”, to apologise to him. The defamation suit filed against Han at the High Court centred on a post she published on Chinese microblog platform Weibo on January 11, which Tsang’s lawyers said was “widely read by people in Hong Kong and around the world”. “As was intended and/or foreseen by the defendant, the words and/or parts of the words had been republished by many people and entities,” the writ said. “The words went viral.”

The court document further claimed that Tsang’s reputation had been “seriously damaged” as a result of Han’s “malicious defamation”. “He suffered considerable distress and embarrassment,” the writ said.

https://variety.com/2018/film/asia/eric-tsang-sues-sex-harassment-accuser-grace-han-1202666786/

Eric Tsang Sues Sex-Harassment Accuser Grace Han

Actor-director-producer Eric Tsang says he has taken legal action against Grace Han, one of the leading figures in the modeling industry in Greater China. Han recently accused Tsang of making unwanted sexual advances to women in showbiz.

Speaking at a press conference Wednesday, Tsang continued to deny the alleged rape of former actress Yammie Lam and said Han’s allegations that he took advantage of women at an event were defamatory.

“The report about the rape of Yammie Lam was fabricated. I respect women. If there is any investigation that requires my assistance, I’m willing to cooperate,” said Tsang, who was accompanied to the press conference by his lawyers. “I’m determined to defend myself with legal measures and I have taken action against Ms. Han’s accusations.”

Last week, a video interview of Lam, previously published by Next Magazine, in which she said she was raped by two powerful Hong Kong actors two decades ago, resurfaced on China’s social media. Tsang was named as one of the actors who allegedly raped Lam.

Han, former head of the Ford Modelling agency in Asia, said on her social media account that it was not the first time Tsang had made unwanted sexual advances to women in showbiz. Han alleged that one of the models she trained narrowly escaped harm from Tsang and his friends – believed to be from the All Stars Sports Association – who allegedly spiked models’ drinks in a Hong Kong karaoke bar.

Tsang said the alleged incident was already the subject of a 2006 defamation suit that he won. “We already cleared our name. But after all these years, people still bring this up,” he said.

Tsang said he would not address the issue further. “I want to put the cyber-bullying to an end,” he said.