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law in Britain has called on Hong Kong lawyers to bring a test case so that courts can decide whether to change an "outdated" law that has a chilling effect on free speech.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.