Libel/Defamation II (Defenses): What roles do malice, motive and mistake play in libel cases? What are the defenses of justification, fair comment and privilege? How do they vary from jurisdiction to jurisdiction?  How are damages assessed? Under what circumstances can a journalist face criminal libel?

PUBLIC OFFICIALS/FIGURES:

New York Times v. Sullivan 1964 (US Supreme Court)(actual malice standard, public officials)

Fan Zhiyi V Oriental Daily Sports 2002 (Shanghai Jingan District People’s Court)(public person) and Yu Qiuyu v. Xiao Xialin 2002 (Beijing Dongcheng District Court)

QUALIFIED PRIVILEGE:

Reynolds v. Times Newspapers 1999 (UK)(responsible reporting and public interest, “the Reynolds defense”)

Jameel v. Wall Street Journal Europe 2006 (UK)(clarification of Reynolds defense)

Floyd v. Times Newspapers 2010 (UK) (Court of Appeal, operators of online news archives must change defamatory stories if new info comes to light)
Yaqoob v Asia Times Online Ltd 2008 (HK’s application of the Reynolds defense) “Asia Times Online Clipped by Libel Charge,” Asia Sentinel, 1 June 2008

Grant v. Torstar Corp 2009 (Canada)(qualified privilege for “responsible communication”)”

FAIR COMMENT:

Eastern Express v. Claudia Mo 1999 (HK)(fair comment and malice)

Albert Cheng v. Tse Wai Chun 2000 (HK)(what is fair comment)

Next Magazine v. Ma Ching Fat 2003(application of Cheng)

(ECHR) Lingens v Austria 1986 (restrictions on opinion/value judgments violated Article 10 of European Convention on Human Rights)

(UK) British Chiropractic Association v. Singh (April 2010)

(UK) “Supreme Court changes fair comment defence in libel cases,” and “Fair comment is dead; Long live honest comment,” The Guardian, December 1, 2010 (citing HK’s Cheng v. Tse case)

Full decision, Spiller and another v. Joseph and others (Dec 1, 2010)

Online damages

UK v. US

“The price of online discussions,” The Guardian, 28 Oct 2010

Study questions:

New York Times v. Sullivan (1964)(US)

–What is the “actual malice” test and why was it established?

–What happened to the burden of proof for the truth or falsity of a statement? Why was this change significant in the common law world?

–Why are other countries hesitant to embrace this standard and what does it mean for the practice of journalism worldwide?

Reynolds v. Times Newspapers 1999/ Jameel v. Wall Street Journal Europe 2006 (UK) and Abdul Razzak Yaqoob v. Asia Times Online 2008 (HK)

–What is qualified privilege in common law and why was it established? What is the test for applying qualified privilege?

–How do the courts define “public interest” and the standards for responsible journalism?

–How did Hong Kong apply the Reynolds test?

Albert Cheng v. Tse Wai Chun 2000 (HK)/Stiller v Joseph 2010 (UK)

–What does the court say about the “right of fair comment” and why it should be constitutionally protected?

–What are the five ingredients of the defense of fair comment? How should they be applied? How is “comment” different from statements of fact?

–How can a plaintiff defeat a defense of fair comment? How did the role of “malice” evolve after this court ruling?

–Why did the UK court adopt Cheng’s honest comment standard?

Singapore v. Far Eastern Economic Review

–How do these cases reflect the hazards for foreign journalists reporting overseas?

–What are the considerations for whether an international media company should settle or fight a case?