Scenario in HK

Laws and Regulations

In Hong Kong, the law of defamation is governed by the common law, which is modified and clarified to some extent by the Defamation Ordinance (DO). In order to succeed in an action for defamation under the common law, a plaintiff has to establish three elements: (1) that a defamatory statement has been made; (2) that the statement referred to the plaintiff; and (3) the statement was published to a third party (Wright, 2003). Among the three elements, the issue of "published" or "publication" is of concern in relation to the Internet. Publication is important in considering an action of defamation because it relates to how a person is considered by a third party(ies). However, the definition of "publication" can be very wide, in particular when the information is distributed via the Internet. It is sometimes sufficient if only one person has read the defamatory material.

Under the common law, there are four main defences to defamation. These are: (1) justification , i.e. that the words are true in substance and in fact; (2) fair comment, i.e. an honest expression of opinion (not a statement of fact) on a matter of public interest that is based on true facts, being a comment that any fair minded person would be capable of making, however prejudiced his or her views; (3) absolute and qualified privilege; and (4) consent to the publication. One further defence of innocent dissemination is available for a person who is not an author, printer or publisher of the defamatory material.

In Hong Kong, a statutory innocent dissemination is also provided in section 25 of the DO, but unlike the UK Defamation Act 1996, the DO does not specify a defence for a party, such as ISP, who is involved in electronic publications. As far as ISPs concerned, the ISP may make an "offer of amend" if it claims that the words were innocently published. An offer of amend is an offer to publish a correction of the offending words and a sufficient apology to the aggrieved party. In the Internet context, a "sufficient apology" may mean publishing an apology on the ISP's home page or, in the case of a newsgroup, posting such a message to the subscribers of the newsgroups. The offer of amends must be expressed to be specifically for the purposes of section 25 and be accompanied by an affidavit specifying the facts relied on to show that the words were published innocently (Wright, 2003). If the offer of amends is accepted by the aggrieved party and is duly performed, the proceedings cannot be taken or continued against the person who made the offer, but be possibly taken against the author of the defamatory statement. This is rather a practical problem in the Internet communications as the identity of the author is always unknown.