Defamation in Hong Kong: A Brief Guide on How to Protect Your Reputation

01/12/2021

In this digital age, it has become trite to say that maintaining a good reputation is key to professional success. This is especially true of your online persona, which can be discovered and scrutinised by any number of people who wish to find out more information about you. At the same time, it has never been easier for bad actors to spread harmful messages or misinformation about individuals online. If you are the subject of defamation, it is crucial to deal with such matters in a timely manner so that your reputation is safeguarded.

What counts as defamation?

In Hong Kong, defamation may include the publication of a statement about a person that exposes him to hatred, contempt or ridicule, and tends to lower his reputation in the opinion of right-thinking members of the community such that it would cause others to shun or avoid him. A corporate body may not suffer injury to its feeling but its goodwill can be injured, and it may maintain an action in tort for libel or slander for any defamatory statement which tends to damage it in the way of its business.[1]

Types of defamation

Defamation can occur either as libel, which is defamation in permanent form, such as a written statement, a video or audio recording; or as slander, which is defamation in non-permanent form, such as spoken words, sounds, signs and/or gestures.

The test for whether a statement is defamatory is to first determine what the published words mean, and then whether those words convey a defamatory imputation.

Are there defences available for defamation?

In Hong Kong, the maker of a defamatory statement may claim that he has a defence against liability, such as the following:[2]

• Justification (or truth): the defendant has to establish that the defamatory statement in respect of which he is sued is substantially true, provided that where there are words containing two or more distinct charges, the words not proved to be true do not materially injure the defamed person’s reputation having regard to the truth of the remaining charges.[3]
• Fair comment: the defendant has to establish that the words complained of are fair comment on a matter of public interest, provided that where there are words consisting partly of allegations of fact and partly of expression of opinion and the factual allegations are not all proved to be true, the expression of opinion is fair comment having regard to the underlying facts that are proved.[4] However, this defence is inapplicable where the words were made with malice.
• Absolute privilege: statements made in certain situations where it is for the public benefit that a person should be able to speak or write freely (e.g. those made in or in connection with judicial proceedings, or those made in the course of legislative debate) are privileged and will not be subject to a defamation claim.
• Qualified privilege: statements made in circumstances less compelling than in (c) above, but nonetheless should be privileged on the grounds of public policy and convenience (e.g. where the maker of the statement has a legal, social or moral duty to make the statement and the recipient has a corresponding interest to receive it, including responsible journalism by journalists and editors). This privilege will be lost where the defamatory statement is made with malice.
• Unintentional defamation: the Defamation Ordinance (Cap. 21) provides a statutory defence whereby the innocent maker of a defamatory statement can promptly make an offer of amends by affidavit to (i) specify the facts relied upon by that maker to show that the words were published innocently, and to (ii) offer a suitable correction of the complained words and a sufficient apology to the defamed party. If this offer is not accepted, then it shall qualify as a defence against future libel or slander proceedings in relation to the said publication.[5]

How can I protect my reputation?

There are a number of options to consider if you are subject to defamation in Hong Kong.

Where the maker of the defamatory statement is known, the most straightforward method to issue a cease and desist letter. Such a letter may include your interpretation of what the defamatory words mean, a reiteration of the reputation you enjoy amongst your peers, and a demand that the maker of the defamatory statement retract his words by way of an apology letter and undertake not to further publish or spread similar statements concerning you.

Depending on where and how the defamatory statement was published, you may give notice of the defamation against you to any relevant third parties so that they can take down the statement and avoid potential liability themselves.

If such an apology is not forthcoming (or where the maker of the defamatory statement is not known), you may consider seeking assistance from the courts in Hong Kong, which have a general power to grant injunctions that they consider just or convenient to do so. Examples of these injunctions include (i) restraining orders against further publication of the defamatory words or words similar to them and (ii) orders compelling the immediate and permanent removal of the defamatory words from all websites or public platforms within the relevant parties’ control, including on social media. It should also be noted that although courts in Hong Kong have the jurisdiction to grant orders mandating an apology, this power is only used where the circumstances are exceptional due to the nature of this remedy.[6]

Depending on the actual words and phrases used, how they were published and whether there were repetitions, the intent of the maker of the statements and the effect those statements have on your feelings and/or reputation, you may choose to commence court proceedings against the maker of the statements (i.e. by effecting personal service of a Writ of Summons) for all losses suffered as well as claim general compensatory damages and aggravated and exemplary damages that are punitive.

Final thoughts

The law of defamation is constantly evolving in order to answer novel questions that emerge over what it means to publish statements in the Internet age, and whether intermediaries such as platform providers should be held liable for hosting defamatory statements made by Internet users. These questions can be complex and fact-sensitive, and you may wish to consider seeking legal advice if your situation cannot be resolved on your own.

For further enquiries, please visit our Civil Law practice.

Written by: Nathan Wong, Partner 

[1] Gatley on Libel and Slander (12^th edition) (at §8.16)

[2] Gatley on Libel and Slander (12^th edition) (at §11.1, 12.1, 13.1, 14.1, 14.6)

[3] Section 26 of the Defamation Ordinance (Cap. 21)

[4] Section 27 of the Defamation Ordinance (Cap. 21)

[5] Section 25 of the Defamation Ordinance (Cap. 21)

[6] Chow Wing Kai v Liang Jing [2021] 2 HKLRD 1189 at §§142-155