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  • Dec 23, 2014
  • Updated: 1:56am
NewsHong Kong

UK barrister Anthony Lester calls for legal test case to protect free speech

Barrister who led reform in Britain calls on lawyers to challenge ‘outdated’ and ‘ludicrous’ defamation law that stifles Hong Kong media

PUBLISHED : Tuesday, 22 October, 2013, 4:32am
UPDATED : Tuesday, 22 October, 2013, 4:51am

A barrister who led reform of the defamation law in Britain has called on Hong Kong lawyers to bring a test case so that courts can decide whether to change an "outdated" law that has a chilling effect on free speech.

Anthony Lester, a Liberal Democrat member of the House of Lords, said the government was unlikely to take the initiative in Hong Kong's "sleepy" legislative reform system.

It was "ludicrous" that Hong Kong still had criminal defamation, he said. And libel of blasphemy, indecency and sedition was "wrong". Under the Defamation Ordinance, a person found guilty of publishing a libel known to be false can be fined and jailed for up to two years.

The bill to reform Britain's defamation law was passed to protect free speech and to provide more protection for individuals and organisations, including newspapers and broadcasters, that criticise big companies.

"You still have criminal defamation as an offence even though the human rights committee of the United Nations laid down guidelines against this in Article 19 of the International Covenant on Civil and Political Rights upon which your Basic Law is partly founded," he said, referring to freedom of expression. "Even though they have said get rid of blasphemy, you haven't done so. Even though they have said cut down on broad sedition case law you haven't done so."

Lester, whose private bill led to the new Defamation Act in Britain, said Hong Kong's law should be reformed to strike a balance between protecting reputations and providing proper breathing space for free speech.

"I hope Hong Kong lawyers will bring test litigation challenging [the defamation law] against Article 27 of the Basic Law so the judges will be the catalyst of reform," he said.

Article 27 of the Basic Law guarantees freedom of speech, of the press and of publication.

Lester, who was in Hong Kong for a conference organised by the University of Hong Kong, said Hong Kong's courts were better equipped to drive reform as they were empowered by the Basic Law to strike down legislation found to be unconstitutional.

Law professor Simon Young Ngai-man said: "The courts can make incremental reform on specific issues and at some point legislators will say, we hope, let's legislate more comprehensively." He said an example of this was the fair comment defence on matters of public interest which was recognised by the Court of Final Appeal in 2000 in a case between commentator Albert Cheng King-hon and celebrity lawyer Paul Tse Wai-chun.

He said the court could strike down a statutory offence for being in violation of freedom of expression.

Lester said Hong Kong should introduce the public interest defence, which protects a publisher even if a publication was factually incorrect as long as it could be shown that it was published in the public interest.

And he called into question trial by jury in defamation cases, which he said would impede settlements and ramp up costs.

The UK reform includes a "serious harm" test that a defamation victim must pass before he can bring litigation, to deter trivial cases. Companies can only bring cases if they can show serious financial loss.

Lester acknowledged that judges were not meant to be law makers and they could not be expected to come up with a detailed regulation of the internet, which Hong Kong urgently needed.


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This article is now closed to comments

The need is for modernization of libel statutes, but it's really 2 separate discussions. The blasphemy, sedition, and indecency stuff should be no-brainers...after all, it's 2013, and unless you're on the mainland, there's no such thing as freedom of speech without those things as a bare minimum. In fact, those who seem enamoured with the CCP way should pay attention to the UN report coming out tomorrow about human rights abuses in China, where you can get locked up for speech that doesn't rise nearly up to the bar of sedition.
On the other hand, the defamation aspect is trickier. There should be deterrence against people who would launch into factually-incorrect tirades, but there should also be deterrence against frivolous lawsuits that could silence legitimate criticism.
So much of our existing legislation is outdated. The Government's simply ignores the work of the Law Reform Commission. Its a disgrace the Secretary for Justice has had to introduce a reporting mechanism by Bueaux on their review of legislation - why can't these overpaid people do their jobs? The Defamation Ordinance isn't equipped to handle the latest developments which have taken place in telecommunications. Sadly, given the calibre of our ministers and so called top civil servants most of our legislation will continue to languish and be totally unfit for purpose.
It'd be a **** shoot with increasingly bad odds to try to take it to court IMO. The courts are trending towards authoritarianism not liberalization. Granted it won't get any better in the future but rewriting now may be worse than the devil that exists. Just look how the stalker and company transparency debates are going. Whether its protecting communists, 'red tycoons,' or plain out fashion power elite an invigorated and powerful media is not something 'the system,' and those who control it, wants.
Lester’s talk about ‘whether to change an "outdated" law that has a chilling effect on free speech’ is timely for Hong Kong. I like him because I too find the defamation law is outdated. Ignoring the changes in Britain where Hong Kong’s whatever law system is based on, Hong Kong suffers what I call Chinatown syndrome – where people within Chinatown embracing their old culture unceasingly while their original culture actually advancing with sea changes over time.
This comment might invite another rebuttal asking how the rich would be protected without the defamation law. I will let Lester do the talking. Incongruent and embarrassing the question is.
It can’t be more right and more hackneyed
that “a balance must be struck”
but the question is always: “how”
It sounds Christian:
protection for propagating “factually wrong” ideas for "public interest"
and Matthewish:
“if” only those who can show “serious financial loss”
may have the standing to sue for defamation
Is it a balanced prioritization for defamation to have jury adjudication
while cases of PI and deaths caused by reckless driving
are ruled in single-judge trials?
This issue is raised either for ulterior motives
or out of bias and ignorance


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