Panel B: Reforming Defamation Law and Practice (90 min; 15min Q&A)
Moderator: Assoc Prof. Doreen Weisenhaus (Director, Media Law Project, JMSC)
Speakers: Ms. Heather Rogers QC (Doughty Street Chambers, UK)
Mr. Paul Schabas (Blakes, Toronto, Canada)
Prof. Andrew Kenyon (Director, Centre for Media and Communications Law, University of Melbourne)
Prof. Harry Roque (Philippines, Media Defence–South East Asia)
Prof. Rick Glofcheski (HKU)

Panel B focused on the development and reform of defamation law across different jurisdictions, moderated by Doreen Weisenhaus.

Heather Rogers QC began the conversation by outlining the long road to parliamentary reform of defamation law in the UK:  From Lord Lester’s private member bill, to the Joint Parliamentary Committee Report, to the eventual passing of the Defamation Act in April 2013.  She discussed key elements in the revamped legislation, including the serious harm requirement which is consistent with the recent holding in Pavel Karpov vs. William Felix Browder (2013), where foreign claimants whose libel claim had no real connection to the English jurisdiction was struck down by the High Court.  She also highlighted the defence of “publication on matter of public interest” under the new Act, which replaces the common law “Reynolds defence,” which provided for a qualified privilege for publication of defamatory statements in the public interest.

Rogers underscored the prevailing tension between the freedom of expression and to report on matters of public interest vis-à-vis the right to reputation of individuals, the struggle of which being the most acute in cases where the claimant is a politician, as illustrated by the recent cases of Lait v Evening Standard (2011) and Waterson v Lloyd (2013).  Illustrating the increasing complexity of defamation claims in the Internet Age, Rogers discussed the case of Tamiz v Google (2013).

Professor Andrew Kenyon (Director, Centre for Media and Communications Law, University of Melbourne) elaborated on the elements of the defence of publication on matter of public interest under the UK Defamation Act.  He also pointed to parliamentary debate in both the House of Lords and the House of Commons which stressed the need for a statutory defence stronger and more robust than the common law Reynolds defence, such that the court is to have regard to all the circumstances of the case in determining whether the elements are shown.

Paul Schabas reflected on the Canadian experience in reforming defamation law.  Major headway was made in the landmark case of Grant v. Torstar Corp (2009), which established the defence of public interest responsible communication, although the Canadian approach differs from the English position in Reynolds, in that the defence can be vitiated by proof of malice, to Schabas’ dismay.  Although there has been little breakthrough in Canadian libel jurisprudence since Grant v Torstar, he observed that there is greater public awareness in the role of the media and investigative journalism in exposing political transgression and abuses.  Yet he expressed concerns that without the serious harm requirement as provided under the 2013 Act, Canada is vulnerable to libel tourism.

On the development of defamation law in Hong Kong, Professor Rick Glofcheski discussed differences between defamation law in Hong Kong and the UK under the 2013 Act.  Professor Glofcheski also highlighted three recent cases in Hong Kong in which the courts have made progress in developing defamation law in face of the new media.  The liability of online forum hosts was explored by the Court of Final Appeal in Oriental Daily v Fevaworks (2013), while the public interest defence was extended to include “responsible public dissemination” statements in Blakeney-Williams v Cathay Pacific Airways Ltd (2012). With respect to the assessment of damages in defamation cases, he noted that there was a trend towards more moderate awards in cases of internet postings, as apparent in Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (No 1) (2012).

According to Professor Glofcheski, these cases are emblematic of the phenomenon where “technology is leading the law, rather than the other away round“. Given the lack of impetus for statutory reform by the government and legislature, the task of law reform falls to the judiciary.   In his view, courts in Hong Kong have displayed a readiness to take a leadership role as seen in cases such as Cheng Albert & Anor v. Tse Wai Chun Paul (2000) and are adaptive in seeking guidance from jurisprudence of other jurisdiction.  However, there are limitations to relying on judge-made law in reforming defamation law.  The gradual approach of “shaping modern law out of old law” by judges may risk judicial contortion, whereby the court may detract from the real issues at stake.

Turning to criminal libel in the Philippines, Harry Roque (Associate Professor, University of the Philippines College of Law) discussed the prominent case of Adonis vs. Republic of the Philippines in which the United Nations Human Rights Committee (‘HRC’) declared that Philippines’ criminal libel law violated the right to freedom of expression under Article 19 of the International Covenant on Civil and Political Rights (‘ICCPR’).  However, not only has the government failed to repeal the relevant libel legislation, a recent law, the Cybercrime Prevention Act criminalizes cyber libel by clarifying that libel on the internet is considered a publication, which would satisfy the element of publication for criminal libel.  Roque has led a petition to the Philippines Supreme Court on the constitutionality of the content-based restrictions under the Act, the decision of which is pending.

Presentation by Heather Rogers QC

Presentation by Rick Glofcheski

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