Dr. Chan Hin Keung Henry v Apple Daily Ltd and Others  HKDC 219
This recent District Court judgment revisits the applicable legal principles concerning libel and considers the application of the Reynolds defence for journalists.
During November 2012, Apple Daily published a full-page report concerning a possible pyramid scheme in Hong Kong.
The report contained a number of articles, amongst which one suggested that a local company was promoting a pyramid scheme; another mentioned that there were a number of possibly related companies registered under similar names and at the same address, and that the Plaintiff was a shareholder and director of one of the named companies; and a third article contained generic commentary outlining the features of a pyramid scheme.
The Plaintiff was then the President of the Chiropractors Association. He issued proceedings against Apple Daily, alleging that that the article which named him was libellous of him when viewed together with the other articles in the same report.
Issues at trial
The case at trial focused on two main issues; firstly, whether the Court would attribute a defamatory meaning to the articles insofar as the Plaintiff was concerned; and secondly, if the Court were to ascribe a defamatory meaning to the articles, whether the Defendant could invoke the defence of Reynolds privilege.
After trial, the Court dismissed the Plaintiff's claim by finding that (1) the article was defamatory of the Plaintiff; but that (2) the Defendant was able successfully to rely on Reynolds privilege as a defence to the publication of the article.
Determining the meaning of the article
The Court considered the natural and ordinary meaning of the article which specifically identified the Plaintiff in order to decide whether it was defamatory of him. It took a holistic view of the whole report and considered the inferences readers would draw, and held that it was "entirely plausible" for a reasonable reader to gain the impression that there was a connection between the Plaintiff and the pyramid scheme.
In the Court's analysis, readers could have attributed a number of meanings to the articles (when read together) including the following:-
i) the Plaintiff knowingly participated in the pyramid scheme (this was the defamatory meaning as pleaded by the Plaintiff) ("Level One Meaning");
ii) there were reasonable grounds to suspect such participation ("Level Two Meaning");
iii) there were grounds to investigate if there was such participation ("Level Three Meaning"); or
iv) there was no culpable connection between the Plaintiff and the pyramid scheme ("Level Four Meaning").
The Court decided that the "Level Two Meaning" was the right meaning as the article contained reasonable grounds for one to suspect that there was a "nefarious connection" between the Plaintiff and the pyramid scheme and that he knowingly participated in it. The article was therefore found to be libellous of the Plaintiff.
Reynolds privilege - a balancing exercise by the Court
Having established the defamatory nature of the article, the Court had to consider whether the Defendant could rely on the defence of Reynolds privilege. In order for Reynolds privilege to be successfully invoked, the Court had to consider whether:-
i) the subject-matter of the publication was of sufficient public interest;
ii) it was justifiable to include the particular material complained of; and
iii) the publisher had met the standards of responsible journalism.
Application of Reynolds privilege to the present case
The Court undertook a balancing exercise and considered the reasonableness of the Defendant's conduct in including the defamatory statement in the article. The Defendant's reference to the Plaintiff was found to be justifiable because:-
i) the emergence and existence of pyramid schemes was a matter of public interest, and so was the identity of persons who may be involved in such schemes in Hong Kong;
ii) it was part of the story for the Defendant to explain the nature of pyramid schemes and disclosing connected persons ; and
iii) references to the Plaintiff in the article were made in a "balanced and matter-of-fact fashion".
Although the Defendant's news editor and reporter were found not to have verified the defamatory statements made about the Plaintiff in the articles, they were found to have presented facts in an objective manner. It was therefore held that they had conducted themselves as responsible journalists. Based on this finding, the Defendant was found to have successfully invoked the Reynolds defence, and the Plaintiff's claim was dismissed.
This case is a good illustration of the Court's balancing exercise between public interest and a subject person's interest in the context of responsible journalism.
Journalists should take note from this Judgment that the applicability of the Reynolds defence is a delicate balancing exercise with responsible journalism and fair reposting on matters of public interest at its heart.
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