Britain's deputy prime minister has described the country's defamation law as an international laughing stock. His comment echoed a growing chorus of criticism, including from lawyers and other politicians. As a result, the British government has introduced to parliament a bill to reform the law. Hong Kong has no such plans, but it has good reason to follow the debate and its outcome with interest because our 124-year-old defamation law is similar.
Defamation laws should strike a balance between the right to free speech and a person's right to protection of privacy and reputation. The Basic Law enshrines Hong Kong residents' right to freedom of speech, of the press and of publication, and court rulings have upheld it from time to time since the handover. But despite changes in society and in the media, most recently the internet revolution, our defamation law, like England's has undergone little change.
Critics say England's notoriously tough defamation law has now got the balance wrong. It is blamed for high damages awards and 'libel tourism', with foreigners suing other foreigners in English courts, claiming they have a reputation to protect in Britain. The rich and famous have been able to obtain super-injunctions that not only prevent publication of unwelcome stories but prohibit any mention that a ban exists. Thankfully, libel tourism is almost unknown in Hong Kong. Perhaps it has been discouraged by relatively low damages awards - something that may reflect the weight the judiciary attaches to freedom of speech. But the potential is there. It is not hard, for example, to imagine a foreigner or mainlander with a reputation in Hong Kong suing a foreign publication that circulates in the city.
Abuses of defamation laws can inhibit free speech and discussion of matters of legitimate public interest. The difficulty in Britain of striking a balance between protection of freedom of expression and protection of people's privacy and reputations is compounded by grey areas in the law. These are mirrored in Hong Kong. The need for clarity has been made more pressing by the internet, which enables ordinary people to comment about others in a way not envisaged when principles of the law of fair comment were developed.
Britain's draft proposals make clearer allowance for fair comment in the public interest, provide the protection of privilege against libel suits for academic and scientific articles, encourage arbitration and cap costs that can dissuade all but the rich from seeking justice.
These are all worth serious debate. There may be little pressure to update our defamation law to strike a modern balance with one of our most precious freedoms. But that is no excuse for waiting until there is. Study of English reforms of laws in which ours are rooted could be rewarding.
