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Libel or slander. Libel is defamation in permanent form, such as a written statement, an audio recording or a video clip. Slander is defamation in non-permanent form, such as an oral statement or sounds, looks and gestures.
What is defamatory? A tendency to injure the reputation of some other person, such as lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of one’s trade, business or professional activity. The test is (i) what do the words complained of mean, i.e. the imputations and (ii) whether such imputations are defamatory, i.e. tend to damage the plaintiff’s reputation.2
Identification. The defamatory words must be about the plaintiff. The test is whether the words are reasonably understood to be referring to the plaintiff.
Publication. The defamatory words must be published to a third party other than the plaintiff. For an online publication, if the defamatory statement is posted or downloaded in Hong Kong, the publisher can be liable in Hong Kong.
Justification. Even if words are defamatory of the plaintiff, the defendant will have a valid defence if he can prove that the words complained of are true or substantially true, provided that the words not proved to be true do not materially injure the plaintiff’s reputation3.
Absolute Privilege. As a matter of public policy, there are occasions where one should not be deterred by the fear of suit from expressing oneself freely on matters of importance. Hence, no action lies for words spoken or documents used in judicial proceedings, the Legislative Council and official state communications, even if they are untrue and published with malice. A fair and accurate report of public court proceedings, which is published contemporaneously, is also protected by absolute privilege, provided that it is not a publication of any blasphemous or indecent matter.4
Qualified Privilege. It is also in the public interest to protect a person who makes an untrue and defamatory statement on occasions where the freedom of expression outweighs the protection of reputation. Such protection is not absolute, it is qualified, in the sense that it will be lost if that person makes such statement with malice. Qualified privilege covers (i) the public interest defence, the Reynolds defence or the ‘responsible journalism’ defence for journalists and editors, (ii) communication of duty or interest where a person has an interest or a legal, social or moral duty to make a communication to another person who has a corresponding interest or duty to receive it and (iii) privileged reports of public proceedings.
Fair Comment. It is a defence where the words complained of were published as a fair comment on a matter of public interest. The test is whether any man, however prejudiced and obstinate, could honestly hold the view expressed by the defendant.5 This defence will be defeated if the plaintiff can prove that the defendant published the relevant comment with malice.
Malice. Proof of express or actual malice or ‘malice in fact’ will defeat a defence of qualified privilege or fair comment. Malice ordinarily means spite and ill-will towards the plaintiff or any indirect or improper motive in the defendant’s mind for publishing the words complained of. Generally, there is malice if the defendant did not believe that the words he said were true or if he was reckless as to the truthfulness of those words. The plaintiff must plead and prove malice, otherwise absence of malice is presumed.
Unintentional Defamation. This is a statutory defence where a person published defamatory words innocently and makes an offer of amends under section 25 of the Defamation Ordinance (Cap.21) by affidavit specifying the relevant facts and offering a correction of words and a sufficient apology, and if such offer is not accepted, then it shall be a defence.
Limitation. The time limit for bringing an action for libel or slander is six years from the date on which the cause of action accrued6, i.e. the date of defamation and/or damage suffered. However, this statutory limit does not apply to any claim for equitable relief7.
Injunction. If there is a threat or further risk of libel or slander, then the plaintiff can seek an interim and/or final injunction against the defendant to prevent the publication or repetition of such libel or slander.
Damages. For libel, general damages are presumed, so the plaintiff is not required to prove actual loss and damage to reputation. For slander, actual damage must be pleaded and proved, unless the words complained of are calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of publication8. General damages are awarded to compensate damage to reputation, injury to feelings and vindicate reputation. Aggravated damages are awarded in light of the defendant’s unreasonable conduct, if any. The court will also consider any mitigating factors to reduce the damages, such as an apology tendered by the defendant. Special damages are awarded to compensate any pecuniary loss suffered, such as loss of employment or business. Exemplary damages are awarded if the defendant has been oppressive or has deliberately committed a tort with the intention of gaining some advantage which he calculates will outweigh any sum which he will have to pay the plaintiff by way of compensation.
Malicious falsehood. In passing, unlike defamation, malicious falsehood is not concerned with an injury to reputation. It is an action based on written or oral falsehoods which are published maliciously and calculated to produce actual damage, and for damage wilfully and intentionally done without lawful occasion or excuse.
1 Oxford Dictionary of Law, 5th Ed. (2003)
2 A defamatory statement is presumed to be false, and it is for the defendant to plead and prove that the statement is true. Legal malice or ‘malice in law’ (i.e. a wrongful act done intentionally without just cause or lawful excuse, which does not depend on the defendant’s state of mind) is also presumed from the publication of a defamatory statement; but this is to be distinguished from express or actual malice or ‘malice in fact’, which rebuts a defence of qualified privilege or fair comment and may be relevant to the issue of damages.
3 Section 26 of the Defamation Ordinance (Cap.21)
4 Section 13 of the Defamation Ordinance (Cap.21)
5 Lord Keith of Kinkel in Telnikoff v Matusevich  1 AC 343 at 354
6 Section 4(1) of the Limitation Ordinance (Cap.347)
7 Section 4(7) of the Limitation Ordinance (Cap.347)
8 Section 23 of the Defamation Ordinance (Cap.21)
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