In the internet age, libel law is ripe for reform
A comment by a Catholic priest last year, which appeared to liken a Hong Kong tycoon to the devil, highlighted the many grey areas surrounding the city's libel laws.
Striking the right balance between protecting freedom of expression and people's reputations is notoriously difficult and the lack of clarity can create a chilling effect. This becomes more pressing every day with the public now posting comments on blogs on a range of personal and public affairs. Tellingly, the priest's comment received considerable support from a public that believes it has a right to make critical but honestly held comments about individuals with a public profile.
Coincidentally, Britain's Supreme Court made exactly those observations in a landmark case around the same time last year. 'Today the internet has made it possible for the man in the street to make public comment about others in a manner that did not exist when the principles of the law of fair comment were developed,' said Lord Phillips. 'Millions take advantage of that opportunity,' he said, while adding that the previous defence of 'fair comment' should be changed to 'honest comment' in what appears to be a more generous protection for commentators. In January, Britain's deputy prime minister, Nick Clegg, seemed to commit to reforming British libel laws in a speech about the erosion of civil liberties.
Britain has developed a poor reputation among developed countries regarding free speech and protection of journalists and has been labelled the global capital for 'libel tourism'. The United States found it necessary to legislate to protect its own journalists against libel judgments obtained in British courts.
These are not issues that have plagued Hong Kong. But Clegg's speech also highlighted problematic areas in libel laws that are relevant to our own circumstances. Most significantly, he noted how 'academics and journalists are effectively bullied into silence by the prospect of costly legal battles with wealthy individuals and big businesses'.
A draft defamation bill is expected in the spring, and Clegg hinted that the key reform would be 'a new statutory defence for those speaking out in the public interest, whether they be big broadcasters or the humble blogger'.
The existing defences of fair comment and justification will also be clarified, while internet publication will be reviewed.
These initiatives deserve attention from the relevant bodies in Hong Kong. Any reform that can clarify areas of defamation and fair comment should be seriously considered. Furthermore, there is already much research on this area which is readily available. Lord Lester of Herne Hill, a prominent human rights lawyer familiar with the Hong Kong legal community, drafted a private member's bill in an attempt to codify the balance between free expression and the right to reputation last May. The opening section sets a more fitting tone for a new law on defamation: it sets out the defence of 'responsible publication on matters of public interest'.
Whether reforms in Britain succeed remains to be seen. But there is no doubt the existing law is highly complex, technical, and out of touch with modern forms of communication. The same applies to the law in Hong Kong. It is ripe for reform. Any changes in Britain, where the law is very similar to ours, should be closely watched and consideration given to making our libel laws clearer, fairer and less likely to inhibit freedom of expression.