Reputation and ruin
Ensuring freedom of speech can be a tricky balancing act. One person's right to say what they want is constrained by another person's right not to be defamed. Rights come with responsibilities.
In Britain - where most of Hong Kong's defamation laws are rooted - a chorus of politicians, celebrities and lawyers have been saying in recent years that the balance is wrong. A string of concerns have been voiced about Britain's notoriously tough libel law, which protects individuals from published statements that attack their reputation.
'Libel tourism' has taken off, with people from Saudi Arabia to Russia to Iceland flying to London to sue other foreigners in courts there, claiming they have a reputation to protect in Britain. Now people including the news media, academics and NGOs are afraid of stirring up debate and getting sued, sparking concerns about self-censorship. The fear is exacerbated by the high costs of going to court and the damages that must be paid after losing a case.
Simon Singh, a well-regarded British science writer, became a rallying point for reform after he was sued by the British Chiropractic Association for an article calling some of its treatments - for problems like asthma and colic - 'bogus'. The case was eventually dropped, but not before it became a symbol of what advocates saw as an oppressive defamation law that punishes critical thinking. It could have cost Singh his reputation and a fortune in legal costs.
Meanwhile, the internet presents its own problems: how do people defend themselves from anonymous online attacks that can spread all over the world with the click of a button? Is the internet service provider responsible along with the person who wrote the content? What about a website that simply copied and pasted a link to the content?
As a result of the concerns, a comprehensive reform of Britain's law is being carried out, for the first time in the common-law world. The draft defamation bill was released in Parliament last month.
That raises a question for Hong Kong, because most defamation laws here follow those in other common- law jurisdictions, notably Britain's. Is the city vulnerable to the same deficiencies that led British Deputy Prime Minister Nick Clegg to brand Britain's law an 'international laughing stock'?
'The same processes at play in the UK would be at play here, no question about it,' Rick Glofcheski, a legal scholar at the University of Hong Kong, said. 'There's nothing substantively different between the two.'
A case like Singh's could blow up here because, as in Britain, the law in Hong Kong puts heavy onus on the person who published the statement - such as the claim that spinal manipulation does not cure asthma. If a writer wants use the defence that the statement is true, then the defendant must prove its truth - an unusual example of the burden of proof resting with the defendant.
And while Hong Kong has not attracted cases as extreme as in Britain, people have gone to court over similar issues, suggesting that the potential for abuse is there.
For instance, in 1999 Hong Kong had its own libel tourists: a British Virgin Islands-incorporated company and Japanese businessman suing two people in Japan, without Hong Kong connections, for two articles written in Japanese. One article was published on the internet, while 157 copies of the other were distributed in Hong Kong, out of 500,000 in total.
The judge ruled that that was enough for the business to have a damaged reputation in Hong Kong. In doing so, he pointed to a British case where two Russian businessmen accused of gang-related activities and corruption were allowed to sue Forbes magazine, even though only 6,000 copies of the article were sold in Britain compared with 786,000 in the United States.
The Hong Kong courts have also taken up problems raised by internet-age mass media. In 2001, messages criticising directors and associates of the e-commerce company E-Silkroad Holdings on the public forum IceRed were found to be libellous. Both companies were based in Hong Kong and IceRed was ordered to give up the IP addresses of those who posted the messages.
Meanwhile, in February this year Hong Kong had its first case of an internet service provider being accused of defamation. Oriental Press Group sued FevaWorks Solutions, hosts of an online forum, for allegedly defamatory statements published on it. The judge ruled that the website host was not responsible for what others posted, as long as the host took the messages down promptly upon complaint. The judge in doing so referred to a British case from 2007.
'The government should review the existing Defamation Ordinance by clarifying the liability of internet service providers,' said Peter Bullock, a solicitor and expert in technology law at Pinsent Masons law firm. 'Perhaps a good starting point is to make reference to the UK defamation bill currently before the UK Parliament.'
Apart from court cases, which shape the law judgment by judgment, Hong Kong's libel law is codified only in the Defamation Ordinance, written in 1887 and barely altered over the past decade despite the growing importance of the internet.
It's a 'fantastic fossil,' said Jonathan Green, a partner at Reed Smith Richards Butler and an expert in defamation. That it allows 'words imputing unchastity to woman or girl' as grounds for slander charges are quaintly dated, for example.
The fact that the ordinance fails to account for the way the internet, and even television, has changed the mass media worries lawyers more.
Yet one of the biggest problems with libel law in Hong Kong is found across all areas of the law here: money. While damages awarded may not be exorbitant, the legal costs are.
The damages in defamation cases are not high enough to attract a great deal of libel tourism, seldom topping HK$3 million. Even the awards of HK$3.3 million, given to 17 high-profile members of the Cathay Pacific '49ers' - a group of dismissed pilots accused of having a 'total lack of professionalism' by their then chief operating officer and director - were reduced to HK$700,000 on appeal last year.
And in a 1995 case between economist and US fugitive Steven Cheung Ng-sheong and Eastweek magazine, non-permanent judge Mr Justice Gerald Nazareth said in the Court of Final Appeal that an initially granted award of HK$2.4 million to Cheong was 'likely to have a serious effect on the freedom of expression and cannot be regarded as necessary to protect the reputation of the plaintiff.'
In 1987 in Britain, however, singer Elton John received about GBP1 million (HK$12.3 million) from The Sun tabloid over accusations that he slept with male prostitutes.
'The great dichotomy is between the importance given to freedom of speech and people's right not to be criticised,' Green said. 'How that balance operates in any particular jurisdiction is an extremely good reflection of what that society is up to at that time. And I think in Hong Kong the relatively low damages awards are a reflection of the judiciary's view of the importance of freedom of speech.'
Still, the legal costs can often exceed the damages. And with no legal aid available for libel suits, defending your name is labelled a game for the rich. At best, a win means you protect your reputation - although, paradoxically, taking a case to court attracts more media attention. At worst, a loss can bankrupt an ordinary person, who often has to pay for the other side's legal expenses, too.
All that means, as famed English lawyer and politician Charles Darling once said: 'Like the doors of the Ritz Hotel, the courts are open to rich and poor alike.'
Tim Hamlett, a veteran Hong Kong-based reporter and now a journalism professor at Baptist University, said: 'Essentially you're playing a game of chicken over the cost. The main reason for doing what they did in the UK is that it would make it cheaper, available to people who can't afford to have anything to do with it now.' Those changes to lower costs that are under consultation in Britain - spelled out in last month's draft defamation bill - include encouraging arbitration, capping costs and demanding corporations to seek permission from a court before bringing a libel case.
Other recommended changes aimed at increasing freedom of speech are to provide a clearer allowance for reports that are in the public interest, privilege against libel suits for academic and scientific articles and a set procedure for how to remove libellous content from websites without being sued.
And the courts will no longer accept libel cases from overseas unless they are satisfied that England and Wales are where a reputation has been hit the hardest.
Lord Anthony Lester, the British politician responsible for the reform bill, said: 'It is the first time that our Parliament in its history has ever undertaken a comprehensive reform of the law of defamation. No other country has done so in the common-law world, and I believe that what we do will be quite influential across the common-law world - and I include obviously Hong Kong in that hope.' Lester introduced a private member's bill in Parliament last year, and has in his time shaped laws including the Human Rights Act, Sex Discrimination Act and Race Relations Act.
In Hong Kong, neither the Law Reform Commission, Press Council nor the Law Society have plans to push for a revision of the defamation law. However, a high-profile case like Simon Singh's, or an influx of libel tourists, might change that.
'There are all sorts of different things that could be done to improve court procedures and I'm sure the judiciary is thinking about them, but they cost a lot of money; they're not going to put them in place unless there's a major problem,' Green said. 'My recommendation would be to wait and see what they do in England. See how that works and then pick the best bits - do the reform based on that. Let somebody else do the hard work, test-drive it and then import the best bits here.'