Case illustration

VII. Case illustration

Scenario

Mr. A had written an article in which part of the content relates to Mr. B. The article was published in a local magazine two weeks ago. Mr. B holds the view that the article makes some adverse allegations against him. He also thinks that the article has undermined his reputation and affected his business. Accordingly, Mr. B sues Mr. A for defamation.

Question 1:
What things must Mr. B prove to the court in order to make a successful claim against Mr. A? Answer 1

Question 2:
If Mr. A only intended to criticize another person through the article and he had no intention of defaming Mr. B, would Mr. A still be liable for defamation? Answer 2

Question 3:
The words under dispute are included in the article, but only some of the words may amount to the defamation of Mr. B. In such a case how are the meanings of the words to be determined? Answer 3

Question 4:
If a reader of the article uploaded the content to an internet website, has he incurred any legal liability for defamation, and what about the magazine that published the article? Answer 4

Question 5:
Would the situation be different if Mr. A did not state the full name of Mr. B but only made some descriptions about him? Answer 5

Question 6:
Mr. A insists that he was just telling the truth in his article. Can he defend against a claim for defamation? Answer 6

Answer 1
Mr. B has to prove the following things:

• the content of the article contains defamatory meaning(s);
• the article was conveyed or communicated to a third party; and
• the defamatory content refers to him.

He may also need to give some evidence of his loss if the court is to assess the amount of compensation to award.

Answer 2
Mr. A may still be liable for defamation.

It is not important if the one who speaks or publishes the defamatory words intends to defame the other, what is important and more relevant is whether or not reasonable people in society think or opine that the words published have defamed Mr. B.

The law of defamation is concerned with the effect of words on ordinary people. The standard to be applied is that of right-thinking/reasonable members of society. Under this standard, if the article published did contain some defamatory words about Mr. B, then Mr. A may be liable for defamation.

Answer 3
If the defamatory words are included in an article, you must look at the article as a whole to see if its meaning is defamatory. You cannot come to a conclusion by simply reading one sentence or one paragraph out of context. This is because, in one paragraph of "the article it may say that Mr. B is an immoral person", but the next paragraph may state that "in fact Mr. B is not so bad and those rumors saying that he is immoral are incorrect". For this reason, Mr. B cannot simply rely on a single paragraph or a sentence contained in the article to sue the author without considering the content of the rest of the article.

You must look at the publication as a whole. If the meaning of the words that someone spoke or wrote are not so clear, the court will adopt the view of the majority of people towards the article as the basis for deciding this kind of case.

Answer 4
The reader, who posted the article on the Internet and thus made the content available to the public, has repeated the defamatory words to others. Referring to question 1 under section III, a second/repeated publication is a fresh instance of defamation. In this case, that reader will be liable for the publication of that defamatory article.

The magazine company, which disseminated the article to the public in the first place, will also be liable for publishing the defamatory words even if the writer of the article is not a reporter/employee of that company. The company may avoid its liability only if innocent publication is proved and an offer of amends has been made under section 25 of the Defamation Ordinance. (Please go to question 7 under section III for further information.)

Answer 5
People may think that if they do not put the name of a person in an article, but give a thorough description of the person (e.g. the business that he runs, his nickname or surname, the things that he had done, etc.), that person would have difficulty proving that the article actually refers to him.

In this circumstance, the court will consider to whom the author originally intended to refer and whether ordinary readers will think that the author is referring to that particular person after reading the article. If Mr. B's friends and others can reasonably think that the article refers to him, then the court will conclude that the article in question does relate to Mr. B.

Answer 6
Mr. A can use justification as a defence. With this defence, he has to prove the truth of the defamatory words in the article (i.e. what he wrote about Mr. B was simply the facts, without any distortions). The court will normally use an interpretation of the meanings of the words used that will be the meanings as understood by the jury (i.e. the right-thinking/reasonable members of society. Therefore, Mr. A must prove that what he published was true within the framework of the meanings of the words he used as determined by the jury, and not some possibly uncommon or obscure meaning that he himself might have attributed to the words in question.

The general principle is that the law does not allow one to recover damages for an injury to a character that one does not possess. In other words, if Mr. A was just telling the truth, Mr. B is not entitled to any compensation even though the words complained of are considered to be defamatory.