Defence

VI. Defence

If I have published something that defames others, what defences can I use if I am sued for defamation?

The following options for defence are available to you:

1. the words were not referring to the plaintiff;
2. the words were true in substance and in fact (justification);
3. the words were fair comment;
4. the publication was privileged;
5. leave and licence or volenti non fit injure;
6. an offer of amends was made under the Defamation Ordinance;
7. innocent dissemination; and
8. apology.

Please note that options (f), (g) and (h) can only be used in the mitigation of damages. That is to say, if you (as the defendant) have admitted liability for defamation, you may make use of any of these three options to rectify the mistake/damage or to reduce the amount of compensation.

The following explanations are only preliminary. You are strongly recommended to seek legal advice before you rely on any of these defence options.

Option (a) (the words were not referring to the plaintiff) is self-explanatory. Please return to section IV for information about the circumstances in which it can be considered that a person has been referred to in a defamatory statement.

Under option (b) (justification) , the publisher/defendant has to prove the truth of the defamatory words or statements. Meanings of the words used must be the meanings as understood by the jury (i.e. the meanings as understood by ordinary and reasonable men), and the truth to be proved by the defendant must be the meaning as understood by the jury. The general principles are 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 the defendant was just telling the truth, the plaintiff should not be entitled to any compensation even though the words complained of are considered as defamatory.

To rely on option (c) ( fair comment) as a defence, the words complained of must be a comment on a matter of public interest based on fact. For the first element – a comment, the test is "could any fair-minded man honestly express that opinion on the proved facts?" Suppose a land developer has torn down a famous historical building, and you write an article in a newspaper criticizing that decision, saying that it was wrong, then that may be considered as a comment based on facts. Tearing down a historical building may also be considered as a matter affecting the public interest (the second element of this defence). In fact, "matter of public interest" covers a wide area and you should consult a lawyer for further details on this issue.

Option (d) (privilege) can be broadly classified as absolute privilege and qualified privilege. The scope of "absolute privilege" is very limited and covers: proceedings and papers in the Legislative Council, judicial proceedings, statements made by officers of the government in the course of duty, and, possibly, communication between solicitors or barristers and clients (e.g. clients disclose information to their solicitors/barristers with the sole purpose for dealing with the relevant legal proceedings).

"Qualified privilege" includes statements made by a person in pursuance of a legal, social or moral duty to a person who has a corresponding duty or interest to receive them, and statements made to protect the common interest of a person who has or shares a corresponding duty or interest to receive them.

Fair and accurate reports of judicial proceedings and the Legislative Council's proceedings are covered by qualified privilege (For more information about qualified privilege for newspaper reports, please refer to section 13, section 14 and the schedule of the Defamation Ordinance). However, the defence of qualified privilege is not only available to newspaper reporters but also to the general public. Please go to question 3 under section III to obtain an everyday example.

Option (e) (leave and licence or volenti non fit injuria) is a defence which requires the defendant to prove that the plaintiff had asserted to or had acquiesced (given consent) to the publication complained of.

Section 25 of the Defamation Ordinance provides a defence for innocent publication and offer of amends (option (f)) . "Offer of amends" generally means that the defendant offers to give a formal apology to the plaintiff, and the plaintiff can decide whether or not to accept this offer. A common example of executing an offer of amends is to publish a notice of correction about the words complained of together with a statement of apology in a newspaper. It is important to note that once the plaintiff has accepted the offer and the defendant has also performed the required acts, the plaintiff cannot commence or continue with a defamation lawsuit against the defendant.

A defence based on option (g) (innocent dissemination) is available for wholesalers, newsagents, libraries and distributors. You can find details of this defence in the question and answer about internet websites.

Option (h) (apology) is available for defendants who have made a publication without malice and gross negligence (i.e. the defamatory words were published without the intention to harm the plaintiff and the defendant also did not act negligently), and that an apology was published before the legal action commenced.