Libel/Defamation I (The Elements): What is the definition of defamation? When does criticism cross the line into defamation? What is the difference between libel and slander? What is publication? Who can sue or be sued? Also, a look at how journalism on the Internet is creating new caselaw, particularly involving forum shopping and other jurisdictional issues, and the defamation risks for foreign journalists, particularly in Europe and Asia.
Readings: (These readings will be used for Classes 4-6)
Primary:
–Defamation Ordinance (Cap. 21), The Laws of Hong Kong
–Defamation (Chapter 3) and “Defamation,” Reporting on the Mainland (Chapter 9) pp 184-185 Hong Kong Media Law
–Cottrell, “What Does Defamation Mean? Reflections on Berkoff v. Burchill,” 6 Tort Law Review pp. 149-163 (1998)
–Hooper, David, “The Importance of the Jameel Case,” 18(2) Entertainment Law Review 62-64 (2007)

–Introduction: How to Use This Book,” International Libel & Privacy Handbook

–Lyall, Sarah, “Britain, Long a Libel Mecca, Reviews Laws, The New York Times, Dec. 11, 2009; “Libel reform gets government backing, but don’t pop your corks just yet,” The Guardian, 7 Jan 2011

--Draft Defamation Bill (UK), March 15, 2011

–”Obama signs libel tourism bill,” AFP, 10 Aug 2010

–Defamation Maps, Article 19, Global Campaign for Free Expression

Icelandic Modern Media Initiative (attempt to establish Iceland as global media-protected haven), 2010, “Victory for Wikileaks in Iceland’s Parliament,” New York Times, 17 June 2010; “Fortress Iceland? Probably Not” Citizen Media Law Project, Feb. 2010

Supplementary:

Hong Kong:

Chapter 6  International Libel & Privacy Handbook, 2d ed.
Cottrell, “Malice and Fair Comment in the Hong Kong Court of Final Appeal — Again,” 11 Asia Pacific Law Review 2 (2003)

U.K.:

–England and Wales (Chapter 15), International Libel & Privacy Handbook

“Defamation,” Chapter 3, excerpts, Robertson & Nicol on Media Law

“Libel cases rise to 10-year high,” The Guardian, 11 October 2010

“Twitter reveals secrets: Details of British users handed over in landmark case…” The Telegraph, 30 May 2011

PRC:

–China (Chapter 5), International Libel & Privacy Handbook

Chen, Xiaoyan and  Ang, Peng Hwa, “Civil defamation law in China,” Media and Arts Law Review (2008), pp. 44-75

The 1993 Reply of the Supreme People’s Court to the Questions in the Trial of the Cases Concerning the Right of Reputation (“The 1993 Reply” English / Chinese)

The 1998 Interpretation of the Supreme People’s Court on the Trial of the Case Concerning the Right of Reputation (“The 1998 Explanation” English/ Chinese)

U.S.:

–United States (Chapter 3), International Libel & Privacy Handbook

Chapter 1 (Libel) The First Amendment Handbook, Reporters Committee for Freedom of the Press.

International:

Adedayo Ladigbolu Abah, “Trends in International Internet Defamation Suits: Targeting a Solution?” The International Communication Gazette, December 2008

SINGAPORE:

“Settle or Fight? Far Eastern Economic Review and Singapore,” Knight Case Studies Initiative, Columbia University (2008)

“British author of death penalty book held in Singapore,” BBC, 19 July 2010 (Author detained on criminal defamation charges)

CASES:

Berkoff v. Burchill 1996 (U.K.) (What is defamation?)

(“Book review claim not serious enough for libel action”)(What is defamation? 2010)

Hong Kong Polytechnic v. Next Magazine 1997 (Who can sue? Can a public body sue?)
Oriental Press Group v. Commercial Radio 2000 (Who can be sued? Radio station held liable for defamatory words by anonymous caller to radio talk show.)

–Godfrey v. Demon Internet Ltd 1999 (U.K.) (What is publication? An Internet posting.)

–Is a hyperlink “publication”? “Top court to rule on hyperlink libel case,” 2010 (Canada)

–Gutnick v. Dow Jones & Co. 2002 (Australia) (Where can you sue? Internet publishers worldwide can be sued under Australia’s defamation laws, the “download” rule.)

“In the Dock, in Paris,” (libel tourism in France: an account of the editor in chief of the European Journal of International Law book being charged with criminal libel in France for a book review published online.  Jan 25, 2011./”From a book review to a criminal trial in France,” New York Times, Feb 21, 2011
Amoudi v Brisard 2006 (UK)(“substantial publication” and the Internet,claimant has burden of proving that material in question has been accessed and downloaded.)
–Singapore v Far Eastern Economic Review (risks for foreign journalists in Singapore)

Study questions:

1)      Berkoff v. Burchill (1996) (UK)

– How does the court arrive at a definition of what is considered defamatory? What factors does it consider relevant?

–The court said: “One has to look at the words and judge them in the context in which they were published.” What is meant by this?

2)      Eastweek v. Claudia Mo (1999)(HK)

Why was the “first statement” found NOT to be defamatory but the “second statement” was? What was the standard used for the ordinary television viewer?

3)  Godfrey v. Demon Internet 1999 (U.K), Gutnick v. Dow Jones. 2001 (Australia) and Amoudi v. Brisard 2006 (UK)

Who can be held liable for potentially damaging comments on the Internet? How is jurisdiction determined?

Are there different standards for the Internet vs. traditional media? What does it mean to have “substantial publication” on the Internet?