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Court holds that defence of reportage is available in Hong Kong in defamation actions

In the recent case of Jigme Tsewang Athoup v Brightec Ltd & Anor, Hong Kong’s High Court (Court of First Instance) held that “reportage” is available in Hong Kong to a journalist or publisher, as a defence to an action for defamation.  Reportage is the neutral reporting of the fact that statements have been made by and which are attributed to another person, not the reporting of statements as a representation of the facts. This is the first time that a journalist or publisher had sought to rely on reportage (a new variant of Reynolds privilege) in Hong Kong and the judgment will have an impact on Hong Kong’s freedom of press.  The judgment details the matters which the court will take into account when deciding whether the defence of reportage has been made out.


The article in question was one about Tibetan Buddhism published in The Front-Line Magazine, a Chinese magazine, focusing on politics in Mainland China.

The 1st Defendant (D1) is the proprietor, publisher and printer of the Magazine and the 2nd Defendant (D2), the editor-in-chief. The Plaintiff is a high-ranking monk and Secretary General of the Karma Kagyu school of Tibetan Buddhism. It was his case that he was a highly respected master, teacher and author of Karma Kagyu and had many followers in Hong Kong and around the world. Karmapa and Sharmapa are both lineage holders of Karma Kagyu. After the death of the 16th Karmapa in 1981, followers of Karma Kagyu had divided into two rival camps because of a dispute as to the true identity of the 17th Karmapa, the Plaintiff belonging to one of those camps (“The Karmapa Dispute”). D1 published articles in the magazine regarding the Karmapa Dispute, one of which the Plaintiff alleged to be defamatory of him. The article had been written by a Pak Suet Kay (Pak) and supplied to D1 through a “scholar”. D1 only knew from this “scholar” that Pak was a knowledgeable and trustworthy person.

Defamatory words

The Court held that an ordinary reader of the article would have understood the words in question to be defamatory of the Plaintiff, as they meant and were understood to mean (amongst other things) that the Plaintiff abused his identity and status as a relative of the 16th Karmapa to gain personal benefit, had illegally seized and misappropriated property and assets belonging to Karma Kagyu, was a liar, had betrayed the Karma Kagyu and was rightly despised by its followers.

Defendants raised reportage defence 

D1 and D2 did not seek to justify the truthfulness of the defamatory words nor rely on the defence of fair comment. Instead, they tried to justify the publication as a matter of public interest by relying on the defence of reportage, which has been described as “a special, and relatively rare, form of Reynolds privilege”. Counsel for D1 and D2 submitted that the legal principles of reportage had been fully set out in the English Court of Appeal’s decision in Roberts v Gable and should be extended to Hong Kong.

The Court had no reservation in accepting that the defence of reportage as formulated in Roberts v Gable is available in Hong Kong, one of the main reasons being that human rights considerations taken into account by the English courts are also applicable in Hong Kong, which has similar human rights legislation to that in Europe regarding freedom of speech, of press and publication.

The Court said that like the United Kingdom, the freedom of expression and freedom to receive information are rights guaranteed in the constitutional legislation in Hong Kong and so the courts in both jurisdictions should likewise adopt a liberal approach in the development of the law relating to the doctrine of Reynolds privilege.

Factors to be considered in deciding whether reportage defence is made out  

The Court listed out the matters to be taken into account when considering whether the defence of reportage has been made out, being those stated by Lord Justice Ward in Roberts v Gable, namely:-

  1. The information must be in the public interest.
  2. In a case of true reportage, there is no need to take steps to ensure the accuracy of the published information.
  3. To qualify as reportage, the report, judging the thrust of it as a whole, must have the effect of reporting, not the truth of the statements, but the fact that they were made. If upon, a proper construction of the thrust of the article, the defamatory material is attributed to another and is not being put forward as true, then a responsible journalist would not need to take steps to verify its accuracy. He is absolved from that responsibility because he is simply reporting in a neutral fashion the fact that it has been said without adopting the truth.
  4. Since the test is to establish the effect of the article as a whole, it is for the judge to rule upon it in a way analogous to a ruling on meaning. It is not enough for the journalist to assert what his intention was, though his evidence may well be material to the decision. The test is objective, not subjective. All the circumstances surrounding the gathering of the information, the manner of its reporting and the purpose to be served will be material.
  5. The protection will be lost if the journalist adopts the report and makes it his own or if he fails to report the story in a fair, disinterested and neutral way. Once the protection is lost, he must then show, if he can, that it was a piece of responsible journalism even though he did not check the accuracy of the report.
  6. To justify the attack on a claimant’s reputation, the publication must always meet the standards of responsible journalism, the burden being on the defendants. All the circumstances of the case and ten factors listed by Lord Nicholls in the English House of Lords judgment in Reynolds v Times Newspaper Ltd, adjusted as necessary for the special nature of reportage, must be considered in order to reach the necessary conclusion that this was the product of responsible journalism. The ten factors are:-
    1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
    2. The nature of the information, and extent to which the subject matter is a matter of public concern.
    3. The source of the information. Some informants have no direct knowledge of the events.  Some have their own axes to grind, or are being paid for their stories.
    4. The steps taken to verify the information.
    5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
    6. The urgency of the matter. News is often a perishable commodity.
    7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed, although an approach to the plaintiff will not always be necessary.
    8. Whether the article contained the gist of the plaintiff’s side of the story.
    9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
    10. The circumstances of the publication, including the timing.
  7. The seriousness of the allegation (Lord Nicholls’s factor (i)) is obviously relevant for the harm it does to reputation if the charges are untrue. Ordinarily it makes verification all the more important.
  8. The relevant factors properly applied will embrace the significance of the protagonists in public life and there is no need for insistence as pre-conditions for reportage on the defendant being a responsible prominent person or the claimant being a public  figure, as may be required in the USA.
  9. The urgency is relevant, in the sense that fine editorial judgments taken as the presses are about to roll may command a more sympathetic review than decisions to publish with the luxury of time to reflect and public interest can wane with the passage of time.

Was the defence of reportage made out in this case?

The Court considered that the first requirement (that there must be real public interest in the matter about which the material is published) had been met as although the Plaintiff may not be an official of the trust controlling the assets of the Karma Kagyu school, he was undoubtedly a prominent and influential member of the school. Further, although Tibetan Buddhism may not be a major religion in Hong Kong, there were many followers in Hong Kong who may be interested to know more about the Karmapa Dispute and major players surrounding such dispute and there was no doubt that the Plaintiff was one such major player. Members of the public would be entitled, the Court said, to know the Plaintiff’s role in the Karmapa Dispute.

As regards responsible journalism, apart from asking the “scholar” who supplied the article to confirm that Pak was a knowledgeable and trustworthy person, D1 and D2 had not taken any steps to verify the truth of the information contained in the article. However, as mentioned by Lord Justice Ward in Roberts v Gable, in a true case of reportage, a defendant need not take such steps.

However, the Court said that the essence of reportage is that the report, judging the thrust of it as a whole, must have the effect of reporting, not the truth of the statements, but the fact that they were made. It followed that the defamatory materials were attributed to another person and were not being put forward as the truth, and the journalist was simply reporting in a neutral fashion the fact that such statements were made, without adopting the truth. D1 and D2’s contention here was something quite different. They were not, the Court said, making a report covering accusations made by the supporters of the two opposing camps of Karma Kagyu. What they were actually saying was that the magazine was only a neutral forum for the supporters of both camps to put forward their allegations or views relating to the Karmapa Dispute. The readers should know, D1 and D2 submitted, that the author of the article, Pak, was a supporter of the other camp, and the article was no more than a report of a particular view of such supporter.  However, such kind of “neutral forum” defence, the Court said, went well beyond the reportage defence recognised by law. The defence of reportage only involved the making of a report, not simply the provision of a forum for others to say whatever they wished.

Unlike a true case of reportage, where it only involved a report of the fact that certain statements had been made and not that the contents of the statements were true, here, the Court said, the whole article published by D1 and D2 was written by someone allegedly not from the magazine, published in the magazine, with no indication in the article to a reader that the magazine was only seeking to convey the fact that certain statements were made.
Further, attribution, the Court said, is a key element of the reportage defence and a defendant can only rely on such defence if he has reported a fact in a neutral fashion without adopting the truth. That key element was missing here and so the defence was not available to D1 and D2.

The Court said that whether the reportage defence was ultimately available depended on a number of factors, such as:

  1. whether the journalist was reporting in a neutral fashion; and
  2. whether the journalist had met all the other requirements of responsible journalism, despite the fact that he might not have taken any steps to verify the accusations contained in the report. Whether the defence of reportage is available has to be determined according to the facts of each individual case.

”Neutral forum” defence as a new variant of Reynolds privilege?

The Court considered whether it was possible for D1 and D2 to raise a new variant of Reynolds privilege based on their contention that they were just offering the magazine as a forum for supporters of both camps to put their views about the Karmapa dispute. The Court did not rule on this point, but did give its preliminary thoughts. It said that it was always possible for the court to develop a new variant of Reynolds privilege for the protection of the freedom of the press, but that it had great reservations about a “neutral forum” defence because:-

  1. Although the Karmapa Dispute may be a matter of public interest, the magazine was, in essence, just letting the authors of the articles say whatever they wished. The magazine did not know the true identity of Pak. The editorial board and readers would not be able to know the background of such person in order to assess the creditability of his or her allegations, and did not know whether Pak had other motives in making the allegations.
  2. Even worse, D1 and D2 had not taken any steps to verify that the contents in the articles did originate from the alleged authors. The so-called forum, therefore, became a potential source of disinformation and D1 and D2 simply did nothing to fulfil their duties under the notion of responsible journalism. Hence, they could not escape liability by simply relying on such “neutral forum” defence.
  3. In the recent decision of Oriental Press Group v Fevaworks Solutions Ltd, the Court of Final Appeal had to consider whether the providers, administrators and managers of a website which hosted an internet discussion forum were liable for defamatory statements posted by certain users of that forum. Although the defamatory materials might touch on matters of public interest, the defendants in that case, did not seek to run the “neutral forum” defence (even though they were represented by counsel of considerable experience). Neither did the Court of Final Appeal mention the availability of such defence in its judgment. To a great extent, this showed that this sort of “neutral forum” defence is not available in law. Although the court has to adopt a liberal approach in the application of Reynolds privilege, it was not accepted that the law has gone so far as to offer privilege to cover the publication of defamatory materials under such circumstances. For our previous article on ‘Oriental Press Group v Fevaworks Solutions Ltd’.

Accordingly, the Court held D1 and D2 liable to the Plaintiff for defamation. When quantifying damages, the Court took into account the fact that the magazine was published in Chinese, meaning that the article would mainly affect the reputation of the Plaintiff in the local community and perhaps some Chinese-speaking communities around the world. The Court awarded HK$150,000 as compensatory damages.

The Court declined to award aggravated damages, as it found that there was no malice involved. Although D1 and D2 had not offered an apology or retracted the article, they had agreed to the magazine serving as a forum for the supporters of the two opposing camps of Karma Kagyu to put forward their views about the Karmapa Dispute. They had expressly invited the supporters of the Plaintiff’s camp to do so, and the Plaintiff had in fact written an article about the Karmapa Dispute for publication in the magazine.  Such step might not be sufficient to exonerate D1 and D2 from liability for libel, the Court said, but it showed that they were trying to adopt a neutral stance and were willing to let the Plaintiff and the supporters of the Plaintiff’s camp defend their reputations in the magazine.

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