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。

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.)

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

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).

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

Defence of Consent in Hong Kong Defamation Law

DCCJ 4437 / 2016 – [2018] HKDC 514 Yiu Shing Yin (姚盛賢) v Kwok Yik Ho (郭奕河) – http://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=115106&currpage=T

Before: Deputy District Judge Kenneth K Y Lam in Court

Date of Hearing: 26, 27 & 28 March 2018

Date of Judgment: 28 March 2018

Date of Handing Down Reasons for Judgment: 9 May 2018

REASONS FOR JUDGMENT

Introduction

This is a libel action arising out of some Chinese words (“the Words”) jointly published by the 1st Defendant (“Mr Kwok”) and the 2nd Defendant (“Mrs Kwok”) on a glass window at Shop 80 (“the Shop”), 1st Floor, Fu Tor Loy Sun Chuen Stage 2 (富多來新邨第二期) (“the Estate”), Tai Kok Tsui, Kowloon, Hong Kong.
The publication of the Words and the fact that the Words were prima facie defamatory of the Plaintiff (“Mr Yiu”) had been admitted by the Defendants (“Mr and Mrs Kwok”).
The main issues in dispute were: – (1) Whether the Words were substantially true (“Issue 1”); (2) Whether the publication was on an occasion of qualified privilege and not too wide (“Issue 2”); and (3) Whether the publication was with the consent of Mr Yiu (“Issue 3”). (Collectively, “the Issues in Dispute”)
The trial took 3 days. The only witnesses were the parties.
At the end of the last day, I resolved the Issues in Dispute in favour of Mr and Mrs Kwok, dismissed the action, ordered Mr Yiu to pay all costs of the action, including all costs reserved, to Mr and Mrs Kwok, to be taxed if not agreed, with Certificate for Counsel (“the Judgment”), and indicated I would be handing down my full reasons for the Judgment in writing, which I hereby do.

Issue 3 – Consent

All parties agreed consent could be a complete defence to any claim of defamation. That was clear, by way of example, from what DHCJ Q Au-Yeung (as Au-Yeung J then was) had said in Poon Chi Hung William v Yuen Wai Chung (HCA 387/2011, 27th November 2012, paragraph 77), from what the learned editors of Gatley had said in paragraph 19.10 of their work, and from what Dr Matthew Collins QC had said in paragraph 18.01 of Collins on Defamation.
For the purpose of “the defence of consent” within the law of defamation, the consent can be explicit, implicit, implied or inferred by the conduct of the parties.
The English case of Carrie v Tolkien [2009] EMLR 9 neatly illustrated how the defence worked. There, the claimant operated a website with the address http://www.tolkienexaminer.blog.co.uk. It was a “blog” with a comments function. The defendant was said to have published a comment defamatory of the claimant on that blog. The claimant became aware of that comment but did not take any step to remove it for the next 22 months. Although there was never any explicit communication of consent between the parties, Eady J aptly observed the claimant’s suggestion that he suffered substantial “upset and distress” was plainly inconsistent with the objective fact of inaction on the part of the claimant, inferred that the claimant must have consented to and acquiesced in the publication of the comment, ruled that no properly directed jury would come to a different conclusion (see his paragraph 16), and summarily struck out the claimant’s case.
The defence of consent in our present case was even stronger than the one in Carrie v Tolkien [2009] EMLR 9.
The evidence was clear. Mr Yiu explicitly communicated his consent to the publication of the Words at the Shop to Mr and Mrs Kwok in an oral conversation with Mrs Kwok. When Mr Yiu discovered the publication of the Words by Mr and Mrs Kwok, he took no step to ask for their removal until 7 months later, whereupon the Words were promptly removed. The defence of consent was available to Mr and Mrs Kwok, and Mr Yiu’s claim was dismissed on this alternative ground also.
In my judgment, Mr Yiu was never entitled to any relief, and this action should never have been commenced by Mr Yiu.
I shall leave it to Mr and Mrs Kwok to decide for themselves whether they would like to provide copies of my Reasons for Judgment to the police. Application for leave would not be required, as these Reasons for Judgment are public. Mr and Mrs Kwok’s complaints to the police in relation to suspected criminal activities on the part of Mr Yiu would appear to be protected by absolute privilege: Westcott v Westcott [2009] QB 407 at 423 paragraph 36 (per Ward LJ) and 424 paragraphs 41-43 (per Stanley Burnton LJ).

Reply to Attack Qualified Privilege Applied in the Incorporated Owners of Beacon Heights Hong Kong Defamation Case

https://beaconheightslibel.home.blog – Reply to Attack Qualified Privilege Applied in the Incorporated Owners of Beacon Heights Hong Kong Defamation Case

香港誹謗官司之畢架山花園陳揚新大勝畢架山花園陳清華 – Incorporated Owners of Beacon Heights Hong Kong Defamation Case

http://www.hklii.org/eng/hk/cases/hkdc/2018/1585.html

CHAN CHING WAH（陳清華） Plaintiff v CHAN YEUNG SUN（陳揚新） Defendant – DCCJ 2028/2016 – [2018] HKDC 1585

Before: Deputy District Judge Jeffrey Chau in Court
Dates of Hearing: 21 & 23 August 2018
Date of Judgment: 21 December 2018

Solicitor Mr Ng Man Kin of Kwok, Ng & Chan Solicitors for the plaintiff
Barrister Mr Kenneth K Y Lam and Barrister Mr Anson Tso, instructed by Lui & Law Solicitors, for the defendant

Chang Wa Shan v Esther Chan Pui Kwan (2018) 21 HKCFAR 370 [2018] 5 HKC 397 [2018] HKCFA 29 (No Defamation At All – HKCFA Unanimously Allowed the Appeal of Esther Chan Pui Kwan)

Barristers Mr James Price QC and Mr Jonathan Chang, instructed by Baker & McKenzie Solicitors, for the Plaintiff (Appellant in FACV 3/2018 and Respondent in FACV 2/2018)

Barristers Mr Kenneth K Y Lam and Ms Angela Mui, instructed by Lui & Law Solicitors, for the Defendant (Appellant in FACV 2/2018 and Respondent in FACV 3/2018)

https://changwashan.home.blog/2018/11/18/chang-wa-shan-v-esther-chan-pui-kwan-2018-hkcfa-29-no-defamation-at-all-hkcfa-unanimously-allowed-the-appeal-of-esther-chan-pui-kwan/

http://www.hklii.org/eng/hk/cases/hkcfa/2018/29.html

https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=116175&currpage=T

http://www2.hkej.com/instantnews/current/article/1888430/%E8%A2%AB%E6%9B%BE%E8%8F%AF%E5%B1%B1%E6%8E%A7%E8%AA%B9%E8%AC%97+%E9%99%B3%E4%BD%A9%E5%90%9B%E7%B5%82%E6%A5%B5%E5%8B%9D%E8%A8%B4

被曾華山控誹謗陳佩君終極勝訴

已故華懋集團主席龔如心的遺產官司餘波未了，當年商人陳振聰一方盤問華懋證人梁錦濠時，提到華懋把地皮賤賣給他，更聲稱大輝集團主席曾華山是「爆料人」，曾華山其後發現是梁錦濠的前女友陳佩君向陳振聰一方提供文件資料，遂控告陳佩君誹謗；曾華山於原審被判敗訴，其後上訴成功；陳佩君不服並上訴至終審法院，昨獲裁定上訴得直，反敗為勝。
終院昨頒下判詞，5位法官一致裁定陳佩君上訴得直。對於原告一方表示，陳佩君的言論會令人誤會他出賣生意夥伴，影響其聲譽，惟終院認為，陳的言論並非惡意虛假陳述，曾華山亦未能證明，外界會因此而誤以為他出賣別人。

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2018/FACV000002_2018_files/FACV000002_2018CS.htm

終院民事上訴2018年第2號

上訴人﹕陳佩君又名陳佩珍（「被告人」）
答辯人﹕曾華山（「原告人」）
主審法官﹕終審法院常任法官李義、終審法院常任法官鄧國楨、終審法院常任法官霍兆剛、終審法院非常任法官司徒敬及終審法院非常任法官華學佳勳爵

法律代表﹕

御用大律師James Price先生及大律師張天任先生（由貝克‧麥堅時律師事務所延聘）代表原告人（終院民事上訴2018年第2號的答辯人，終院民事上訴2018年第3號的上訴人）

大律師林嘉仁先生及大律師梅蕊婷女士（由呂羅律師事務所延聘）代表被告人（終院民事上訴2018年第2號的上訴人，終院民事上訴2018年第3號的答辯人）

摘要﹕

原告人以被告人短暫形式誹謗及惡意虛假爲基礎提出申索。這是2009年5月開始審理，備受矚目的龔如心巨額遺產案件所引起的附屬訴訟。
在遺囑認證訴訟中，陳振聰聲稱龔如心於2006年訂立了一份新遺囑，取代其早前於2002年訂立，指明華懋慈善基金有限公司 (「華懋」) 爲主要受益人的另一份遺囑。陳振聰其後就僞造罪受審、被定罪及判處監禁。
被告人與梁錦濠(「梁先生」)曾是朋友，並同居三年。在遺囑訴訟中，梁先生爲華懋一方作證。被告人提議爲她另一位朋友蕭博士與遺囑訴訟中陳振聰的律師團隊（主要是麥至理律師及御用大律師Ian Mill）充當「中間人」，目的是爲了提供資料質疑梁先生的可信性。有關資料包括梁先生與華懋一宗土地交易的文件，可用於盤問梁先生以顯示他曾從華懋獲得巨大經濟利益，因而並非公正可靠的證人。換取可以使用這些文件的初步付款要求遭拒絕。然而，審訊中梁先生接受盤問時，被告人告知陳振聰的律師團隊，文件提供者同意他們使用這些文件，但條件是假如陳振聰勝訴，文件提供者就會得到回報。
由於預料法官會問及文件從何而來，大律師Ian Mill在恢復進行聆訊前，透過麥至理律師致電被告人詢問誰是文件提供者。根據本案特委法官的裁斷，被告人當時説提供文件的是原告人「Edmund Tsang」(即曾華山)。在公開聆訊回覆法官詢問時，大律師Ian Mill將此資料轉告法官。本案中，雙方沒有爭議被告人的陳述虛假，以及原告人並非文件提供者的事實。原告人表示，被告人的虛假陳述以及媒體對此事的報導，令其聲譽嚴重受損。他以短暫形式誹謗及惡意虛假爲基礎向她提告。原告人表示他過往與梁先生有業務往來，他被指稱提供資料指證梁先生的這個行爲，會令人以爲他出賣朋友，幫助陳振聰提出缺乏理據的申索，帶有令人不齒、惟利是圖的動機而作出此行爲，令其聲譽受損。
大律師Ian Mill在公開聆訊所言，媒體公正準確地報導法庭公開聆訊中的内容，毫無疑問均受到絕對特權保護。故此，原告人不能依賴該些發布而提出申索。本案問題是被告人是否也受該絕對特權的免責保護。
本院以大多數（終審法院常任法官鄧國楨持異議）裁定按照法律，被告人對大律師Ian Mill及麥至理律師所作的陳述不受絕對特權保障。
然而，本院裁定，原告人聲稱遭受的聲譽損害，取決於被告人向其發布陳述的人士當時已知悉的事實，會導致他們將被告人的陳述理解爲具有上文所述出賣朋友、協助缺乏理據的訴訟、且藉此從中獲益的影射含義。本院一致裁定原告人未能適當提出或證明這些事實。故此，具影射含義的説法並不成立。因此，這個短暫形式誹謗的申索失敗。
本院同樣一致地裁定，原告人以惡意虛假爲基礎的交替申索失敗，因爲他未能證明其追討的損失是被告人虛假陳述所產生的特殊損害，而這是法律上的一個基本要求。然而，終審法院常任法官鄧國楨更進一步認爲，駁回惡意虛假的申索的額外理由爲，基於支持延伸絕對特權免責辯護的相同政策考慮，原告人所申索的損害賠償不能被討回。
就終院民事上訴2018年第2號案件，本院一致裁定被告人上訴得直；終院民事上訴2018年第3號案件，本院則一致駁回原告人的上訴。

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2018/FACV000002_2018_files/FACV000002_2018ES.htm

FACV No. 2 of 2018

APPELLANT: Esther Chan Pui Kwan (陳佩君) also known as Chan Pui Chun (陳佩珍) (the “defendant”)
RESPONDENT: Chang Wa Shan (the “plaintiff”)
JUDGES: Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Fok PJ, Mr Justice Stock NPJ and Lord Walker of Gestingthorpe NPJ

REPRESENTATION:

Barristers Mr James Price QC and Mr Jonathan Chang, instructed by Baker & McKenzie Solicitors, for the Plaintiff (Appellant in FACV 3/2018 and Respondent in FACV 2/2018)

Barristers Mr Kenneth K Y Lam and Ms Angela Mui, instructed by Lui & Law Solicitors, for the Defendant (Appellant in FACV 2/2018 and Respondent in FACV 3/2018)

SUMMARY:

The plaintiff’s claim for slander and malicious falsehood against the defendant is satellite litigation arising out of the high-profile probate action relating to the vast estate of Nina Wang the hearing of which began in May 2009.
In the probate action, Tony Chan claimed that Nina Wang had made a new will in 2006, displacing Chinachem Charitable Foundation Limited (“Chinachem”), the major beneficiary of the estate in her earlier will made in 2002. Tony Chan was subsequently tried, convicted and imprisoned for forgery.
The defendant once was a friend of Gilbert Leung (“Mr Leung”) with whom she had cohabited for three years. Mr Leung was to give evidence for Chinachem and the defendant offered to act “as middleman” between Dr Siu, another friend of hers, and Tony Chan’s legal team in the probate action, principally Mr Jonathan Midgley and Mr Ian Mill QC, with a view to providing information aimed at discrediting Mr Leung. The information involved documents concerning a land transaction between Mr Leung and Chinachem which might be used in cross-examination to suggest that Mr Leung had received a substantial financial benefit from Chinachem and was not an impartial or reliable witness. Initial demands for payment to be able to use the documents were refused. But when Mr Leung was being cross-examined at the trial, the defendant informed Tony Chan’s legal team that the source of the documents agreed that they could be used on the understanding that if Tony Chan were to win, the source would be rewarded.
Anticipating that the Judge would ask about their provenance, Mr Mill, through Mr Midgley, asked the defendant in a telephone call just before resumption of the hearing, who was the source of the documents and, the Recorder found, the defendant named the plaintiff “Edmund Tsang” as the source. That information was then conveyed by Mr Mill to the Judge in open court in reply to the Judge’s question. It is not disputed that the defendant’s statement was false and that the plaintiff was not the source of the documents. He claimed that his reputation was seriously injured by the defendant’s false statement and the publicity given to it by press reports. He sued her for slander and malicious falsehood. The plaintiff alleged that such reputational injury would flow from the fact that he had had business dealings with Mr Leung so that people would regard his alleged act of supplying information to be used against Mr Leung as an act of betrayal, as helping Tony Chan pursue an unmeritorious claim and as an act done with a disreputable mercenary motive.
What Mr Mill said in open court and the press reports which fairly and accurately repeated what was said in open court were undoubtedly covered by absolute privilege so that the plaintiff could not mount a claim relying on such publications. The question was whether such absolute privilege also protected the defendant from liability.
The majority of the Court (Mr Justice Tang PJ dissenting) found that as a matter of law, the defendant’s statement to Mr Mill and Mr Midgley was not covered by absolute privilege.
However, the Court found that the reputational damage the plaintiff alleged he had suffered depended on the persons to whom the defendant’s statement was published having knowledge of facts which would lead them to understand the defendant’s statement as carrying the innuendo meanings regarding betrayal, assisting an unmeritorious action and seeking to profit from doing this, mentioned above. The Court unanimously held that such facts were neither properly alleged nor proved by the plaintiff, so that the innuendo meanings were not established. The slander claim therefore failed.
The Court was also unanimous in holding that the plaintiff’s alternative claim for malicious falsehood failed because he was unable to establish that the losses which he sought to recover represented special damage flowing from the defendant’s false statement, an essential requirement of the law. However, Tang PJ also rejected the malicious falsehood claim on the basis that the claimed damages could not be recovered for the same reasons of policy as those justifying the extension of the defence of absolute privilege.
The Court unanimously allowed the appeal of the defendant (FACV 2 of 2018), and dismissed the appeal of plaintiff (FACV 3 of 2018).

https://changwashanvestherchanpuikwan.blogspot.com/2018/09/chang-wa-shan-v-esther-chan-pui-kwan-defamation-slander-malicious-falsehood-absolute-privielge.html

Mr Justice Ribeiro PJ:

The Court unanimously allows the appeal of Esther Chan Pui Kwan, the appellant in FACV 2 of 2018, and dismisses the appeal of Chang Wa Shan, the appellant in FACV 3 of 2018. We unanimously make an order nisi that Esther Chan Pui Kwan should have 50% of her costs of the action down to the end of the proceedings before the Recorder (so restoring his Order of 28 January 2016) and all her costs of the appeals to the Court of Appeal and to this Court. The parties are at liberty to lodge written submissions on costs within 14 days of the handing down of this judgment and to lodge submissions in reply within 14 days thereafter. In default of the lodging of such submissions, the order nisi shall stand as an order absolute without further direction.

Barristers Mr James Price, QC and Mr Jonathan Chang, instructed by Baker & McKenzie Solicitors, for the Plaintiff (Appellant in FACV 3/2018 and Respondent in FACV 2/2018)

Barristers Mr Kenneth K Y Lam and Ms Angela Mui, instructed by Lui & Law Solicitors, for the Defendant (Appellant in FACV 2/2018 and Respondent in FACV 3/2018)

http://orientaldaily.on.cc/cnt/news/20180712/mobile/odn-20180712-0712_00176_090.html

法庭：曾華山告誹謗陳佩君終極勝訴

已故華懋集團主席龔如心的遺產案於○九年審訊時，引發另一宗民事誹謗案，商人曾華山被錯誤指為是向陳振聰陣營提供文件，用來盤問華懋一方的證人梁錦濠。曾華山感到「被屈」成為「爆料人」，會令其他人以為他是「二五仔」出賣朋友，使他的聲譽和生意受損。他得悉梁的前女友陳佩君是此事的始作俑者後，一○年興訟控告她誹謗。案件纏訟八年，終審法院昨

裁定陳佩君終極勝訴，並下令敗訴的曾華山要支付一半訟費予陳。

案件在原審時，高院原訟庭裁定陳佩君是一名潛在證人，她當時向陳振聰律師團提供資訊，對話內容受到「法律絕對特權」保護，因此判曾華山敗訴。

官指曾華山未受特殊損害

案件最終要由終院裁斷，終院的判詞昨指出，陳佩君為免真正「爆料人」的身份被公開，她亦不會出庭作供受盤問，故她當時身份只屬「中間人」，未能獲得「絕對特權」保護。惟終院指，陳振聰律師團隊當時不認識曾華山，亦不會覺得曾華山為獲益而出賣朋友；而陳佩君只是錯誤指出曾華山向律師團隊提供了一份文件，此舉未有令到曾華山受到特殊損害，故終院判陳佩君終審上訴得直。

案件編號：FACV 2 & 3/2018

https://m.mingpao.com/ins/instantnews/web_tc/article/20180711/s00001/1531298901823

被曾華山控誹謗　陳佩君上訴終院得直

已故華懋集團主席龔如心830億元遺產案審訊期間，陳振聰的代表律師呈上文件，質疑華懋慈善基金的證人梁錦濠收受華懋利益，但其間誤指大輝集團主席曾華山是「爆料人」。曾華山不滿被人誤以為是「二五仔」，興訟控告梁錦濠的前女友陳佩君誹謗。高院早年裁定曾華山敗訴，他提出上訴後獲裁定得直，並獲判3萬元賠償。惟陳佩君再提上訴，終院今裁定陳佩君上訴得直。

http://hd.stheadline.com/news/realtime/hk/1262769/

龔如心遺產「爆料人」誹謗案陳佩君上訴得直

華懋集團前主席龔如心的遺產案審訊期間，代表陳振聰的大律師誤指大輝集團主席曾華山向陳一方提供文件資料，用以盤問華懋證人梁錦濠。曾華山入稟控告以中間人身份提供文件的梁錦濠前女友陳佩君誹謗，他在原審時被判敗訴，後來上訴成功，可獲賠償3萬元。陳佩君上訴至終審法院，終院今早頒下判詞，5位法官一致裁定陳上訴得直。

終院常任法官鄧國禎認為，與訟人士均享有豁免權，不因其言論而被起訴，以鼓勵與訟人士在法庭程序中暢所欲言。原告一方認為陳只是消息人士，卻非在庭上作供的證人，她不應獲特權保障。但鄧官認為，獲保障的包括任何與訴訟有關係的人士，何況陳並非單是消息人士，她本可以親自上庭作供。即使陳提供的消息是虛假的，法庭亦應保障她免於被起訴的恐懼。

https://justicemustbeseentobedone.blogspot.com/2018/09/chang-wa-shan-v-esther-chan-pui-kwan-hkcfa-unanimously-allowed-the-final-appeal-of-esther-chan-pui-kwan.html