TSE WAI CHUN PAUL v. ALBERT CHENG AND OTHERS

1996, No. HCA 9983

HEADNOTE

Defamation - Action against 3 defendants - Defence of fair comment pleaded

by all defendants - Malice to rebut defence of fair comment pleaded by plaintiff against all defendants - No proof of malice against 1 defendant individually - whether its defence of fair comment also rebuttable by proof of malice of other defendants.

Held - The plaintiff has to prove malice against each defendant individually.

Each defendant's individual defence of fair comment is complete in itself once the defendant proves that objectively there was a sufficient substratum of fact and the criticism was of the type that could freely be published on a matter of public interest. Thereafter the burden was on the plaintiff to rebut each defence by proving each defendant's subjective intentions. An independent defence of fair comment, complete in itself, would not be "infected" by the breakdown of another defendant's defence if the plaintiff could prove malice against that other defendant only.

1996, No. HCA 9983

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL JURISDICTION

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D E C I S I O N

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1. In this case, the Plaintiff is suing three Defendants for defamation. The 1st Defendant and the 3rd Defendant are co-hosts of a live radio talk show. The 2nd Defendant is a radio station. The Plaintiff accepts that there is no evidence of an employer-employee relationship or a principal and agent relationship between the station of the one part and the co-hosts of the other part.

2. All Defendants have pleaded fair comment as a defence. The Plaintiff has pleaded in his Reply against all three Defendants that they were actuated by malice. No evidence has been adduced by the Plaintiff of actual malice on the part of the radio station. In relation to some particulars of malice pleaded by the Plaintiff against the 1st and 3rd Defendants, it is accepted by the Plaintiff that no evidence has been adduced against the 3rd Defendant personally.

3. The question of law for my decision now before I direct the jury is whether it is necessary for the Plaintiff to adduce evidence of malice against all three Defendants individually, or put in other words, can the station, as a publisher of the allegedly defamatory words and the 3rd Defendant as a joint publisher of all the allegedly defamatory passages, say that there is no evidence of malice to go to the jury (in the case of the 3rd Defendant, on some of the pleaded particulars) even though there may have been malice by the 1st Defendant?

4. This is a very interesting issue of law and a number of authorities had been drawn to my attention by counsel. The law in respect of qualified privilege is clear, at least since the decision of Egger v. Viscount Chelmsford [1965] 1QB 248. That was a case of qualified privilege where there were ten defendants participating in a committee and a defamatory letter was written by the secretary on the instructions of the committee. The Plaintiff proved malice by two members of the committee but failed to prove it as against the secretary and the other eight members.

5. The trial judge, following the first instance decision of Bankes, J. in Smith v. Streatfeild [1913] 3KB 764, entered judgment against all members. The Court of Appeal in Egger allowed the appeal and overruled the first instance decision in Smith. The Court of Appeal held that each member of the committee had an independent and individual privilege which could not be defeated by the malice of others taking part in the joint publication. Qualified privilege attaches to the individual publisher not to the publication. Therefore, the secretary and the eight non-malicious members were held not liable even though the Plaintiff had successfully proved that the other joint publishers were acting maliciously.

6. Now that was a case where the defence was one of qualified privilege. What is the position in respect of the defence of fair comment, which is another defence which can be rebutted by malice? Surprisingly, there are no English authorities directly on the point in a fair comment case. There is one New Zealand case which I shall deal with later. In Egger, Lord Justice Denning said at p.265C:

"If the plaintiff seeks to rely on malice to aggravate damages, or to rebut a defence of qualified privilege, or to cause a comment, otherwise fair, to become unfair, then he must prove malice against each person whom he charges with it. A defendant is only affected by express malice if he himself was actuated by it; or if his servant or agent concerned in a publication was actuated by malice in the course of his employment. We have come after several years to find that the law is as Lord Porter's Committee recommended it should be."

7. Although it is clear from that passage what Lord Denning's view was, it must be obiter because that was a case of qualified privilege and not fair comment. I note also that in the same case, Lord Justice Davies said at p.269:

"Mr. Colin Duncan, for the Plaintiff, when in the course of the argument general considerations of this kind were put to him, pointed out that it would be a surprising thing if, in a given case, a defence of fair comment could be open to the printers and publishers despite the fact that the comment had been held to be unfair by reason of the malice of the author. But that is no true analogy. If a publication had been held not to be a fair comment, then all concerned in publishing it have published an unfair comment and no question of individual malice or bona fides can arise."

8. So that view was opposite to that of Lord Denning's. The third member of the Court of Appeal, Lord Justice Harman expressed no view on what the position would be in a fair comment case when malice is proved against one of several defendants.

9. The Court of Appeal in England had an earlier opportunity to decide that point in a fair comment case in Crozier v. Wishart Books Ltd. [1936] 1KB 471. But although the Court of Appeal recognised that that was a matter of great importance to printers and publishers, they preferred to decide that matter in an interlocutory proceeding for narrower reasons.

10. In the case of Lyon v. The Daily Telegraph [1943] 1KB 746, however, Lord Justice Scott was less reticent. In that case, the Defendant was a newspaper publisher which had published a letter written by a person who had given a fictitious name and address. The Plaintiff, therefore, could only sue the newspaper. At first instance, Hilbery J. held that the newspaper could not prove that the unknown writer was acting honestly, and the fact that he used a false name was some evidence that the writer was not acting wholly conscionably. He held that the newspaper's defence of fair comment failed. The newspaper appealed. The Respondent's (i.e. the newspaper's) counsel Mr. Slade Q.C., argued inter alia at p.749:

"Two parties defamed the Plaintiffs - the newspaper and the writer of the letter. They are co-tortfeasors and if the writer is actuated by malice, the plea of fair comment is lost to the newspaper, whether or not he [the writer] is joined as a co-defendant."

11. The Court of Appeal held that it was not necessary for the Defendant newspaper in its defence of fair comment to prove that the unknown writer had honestly held that opinion. Lord Justice Scott in his decision at p.752 answering Mr. Slade Q.C.'s argument said:

"There is no decided case which covers the precise point. It is unnecessary to consider how far the rule that the fairness of comment may be destroyed by any oblique motive extends where it is the Defendant's own motives which are concerned, but, assuming that comment inspired by indirect, improper or private motives ipso facto ceases to be fair and that the writer of such a letter to a newspaper will when sued for libel, have put himself outside the pale of the defence of fair comment, it does not necessarily follow, as contended by Mr. Slade, that if he is made co-defendant with the newspaper, the newspaper also will lose its defence of fair comment."

12. And there apparently, the line of English cases on this aspect of the defence of fair comment ends, apart of course from Lord Denning's and Lord Davies' respective views, both obiter in Egger.

13. I should add that although mention has been made by counsel to Lord Porter's Committee on Defamation, I have not actually been referred to the command paper and I am therefore unable to consider the English position on potential legislation as compared to the legislation in Canada. There is then the case of McLeod v. Jones [1977] 1 NZLR 441, where the facts bear a similarity to the present case. I read the headnote:

"The 2nd Defendant which operated a radio talk-back session had been sued for libel by the Plaintiff. The alleged libel arose out of statements made by the 1st Defendant an independent contractor and not an employee or agent of the 2nd Defendant during a talk-back session. The Statement of Claim alleged that the 1st Defendant had been actuated by malice, and imputed malice to the 2nd Defendant per medium of the 1st Defendant's statement. There were no specific allegations of malice on the part of the 2nd Defendant.

     The 2nd Defendant had raised the defence that the words were true in substance and in fact and the defence of fair comment on a matter of public interest."

14. It was held ordering that the paragraphs imputing malice to the 2nd Defendant be struck out, that a Plaintiff seeking to rely on malice to rebut a defence of qualified privilege or to convert a fair comment into an unfair comment must prove malice against each person whom he charges with it. The judge founded his decision on a preference for the trend of authorities supporting a passage from Fleming on Torts which was that:

"One person's malice cannot be properly imputed to another so as to defeat his defence of fair comment anymore than in the analogous case, already considered, of qualified privilege."

15. As to trends of thought, there have been a number of different views expressed by different textbook writers. Mr. Pow for the Plaintiff referred me in particular to the 1981 edition of Gatley on libel and slander where the then editors at para. 730 said:

"Where the defendant has published, or taken part in publishing, the comment of another, he may rely on the defence of fair comment at least to the same extent as the person whose comment it was. Thus, if that person would have a good defence of fair comment, so will any other person who has participated in the publication. Where, however, the comment does not express the honest opinion of the person who made it, no other person participating in the publication has a defence of fair comment."

16. The present edition of Gatley at para. 16.24, however, reads as follows:

"It is clearly established that where a comment originated by A is published by B, then the defence of fair comment is available to B even though the comment does not represent B's opinion: it is not malicious in a newspaper editor to publish a comment with which he does not agree. However, it has been said that the position is different where it can be shown that A was actuated by malice even though B was unaware of that. [Then, there is the quotation of Lord Justice Davies in Egger.] While there are cases which have proceeded on this assumption, they were decided at a time when the present principles governing malice in relation to qualified privilege had not been established and may, in any case, be explained on the basis that B was responsible for A on the principle of respondeat superior.

In any event, the dictum quoted above is in direct contradiction to another dictum in the same case [that is, Lord Denning's dictum] and with other dicta. It is submitted that the better view is that in such a case B may take advantage of the defence of fair comment (unless he is aware of A's malice or is vicariously liable for A) for two reasons. First, because otherwise the news media would be placed in an intolerable position, in publishing letters and opinions on matters of public concern. Secondly, the contrary view seems inconsistent with the modern view of fair comment as a "two stage" issue in which the defendant establishes the defence by showing that the words are capable, considered objectively, of being fair comment and loses its protection only if he is actuated by malice."

17. I have considered Mr. Pow's argument that the defence of qualified privilege is quite different from the defence of fair comment. I accept that the defence of qualified privilege pertains to the occasion and the defence of fair comment pertains to that type of comment that an individual can freely make on matters of public interest. Therefore, one cannot just rely on a qualified privilege case, such as Egger, as a complete analogy to a fair comment case such as the present one.

18. Therefore, I must go back to first principles and see whether it is consistent with the rationale of the defence of fair comment that the Plaintiff has to prove malice independently against each Defendant participating in a publication.

19. At this juncture, it is important to remember that where several persons are jointly concerned in the publication of an allegedly defamatory statement, any one of them may be sued separately by the Plaintiff. It is entirely the Plaintiff's election, and it is no defence for a Defendant sued separately to say that others were involved. That is the corollary of the present issue.

20. Going back to basics, the basis of the defence of fair comment is well established. The defence of fair comment is one of the fundamental rights of free speech and writing in a society that is free but kept in order by the law. Thus the defence is split into two stages. The first stage is the "objective" stage when a Defendant who has made statements found or admitted to be defamatory has to show a sufficient substratum of fact and only that that statement was of the nature of an opinion on a matter of public interest that a person could hold, not that he honestly did hold that opinion.

21. I refer to the House of Lords' decision in Telnikoff v. Matusevitch [1992] AC 343 where the House of Lords expressly rejected the Canadian case of Cherneskey v. Armadale Publishers Ltd. [1978] 90 DLR (3d) 321 in the Supreme Court of Canada. The Canadian case of Cherneskey established a position of law in Canada which was subsequently changed by legislation there. Telnikoff is instructive because it shows that the defence of fair comment is complete in itself: once the Defendant shows that the defamatory statement is of the type of comment that can be freely made on a matter of public interest.

22. A person who is aggrieved by a defamatory statement might think it unfair that another person could say hurtful things about him and hide behind the "cloak" of fair comment once the Defendant shows that the statement is of the type that can freely be made on a matter of public interest, when the Defendant has not even shown that that was really what he meant and where it might be that in his heart of hearts, he had always had the most evil intentions against the Plaintiff. But that was exactly what the House of Lords held in Telnikoff. The Defendant needed only to pass the objective test of whether that statement was of the type or nature of comment on a matter of public interest that the person could hold the opinion stated. That was regarded as the safety level, and that is not surprising, because the defence of fair comment was to enable free speech on matters of public interest.

23. If the Plaintiff wishes to rebut a defence of fair comment, it is the Plaintiff who has to show that the comment was, as it were, just a "guise" and that there was some dominant and improper motive behind it other than comment on matter of public interest. This is the second stage, sometimes called the "subjective" stage where the court has to probe into the individual state of mind of the Defendant. But this has to be done at the instigation of the Plaintiff and it is the Plaintiff who has to prove someone else's intent.

24. Once it is borne in mind that each several defendant in the publication of a fair comment criticism has a complete defence in itself, once that defendant shows that the defamatory statement is of the type of comment that can be freely made on a matter of public interest and it is the plaintiff who has to seek to break down a defence of fair comment by a subjective probe into a person's mind, then in my judgment it must follow that an independent defence of fair comment complete in itself would not be "infected" by the breakdown of another defendant's defence if the plaintiff could prove malice against that other defendant only.

25. Mr. Pow has referred me to a sentence in Dawson v. Dover Chronicle [1913] 108 L.T. at p.485 which reads as follows:

"The plea of fair comment is not the newspaper's plea. It is the adoption by the newspaper of the speaker's protection of fair comment."

26. I fail to see with respect why the plea of fair comment is not the newspaper's plea but only the adoption of the speaker's protection of fair comment. The newspaper can judge for itself whether the criticism is of the type of comment that can be freely made on a matter of public interest because that is an objective standard. If it fails the objective standard, then it is libel, no matter how pure the speaker's motives. If it passes that standard, the newspaper has a complete defence in itself. Beyond that a newspaper can hardly be expected to go. If on the face of it, the criticism is fair comment, the newspaper has no way of probing into the mind of the speaker in the way that a court of law can (albeit with difficulty sometimes) when assessing whether the speaker has been actuated by malice.

27. I am comforted in my view of the law on the defence of fair comment by the position on the ground. If the position were otherwise, that would mean that all newspapers would find it safer to publish anonymous letters, since then, the plaintiff would have no way of proving that the anonymous writer was actuated by malice. If, however, the newspaper published attributed letters, then the newspaper lays itself open to a rebuttal of its own fair comment defence, even though it had no knowledge of any hidden motives of the writer.

28. Such a position can hardly be desirable and it would indeed be strange if the law would force newspapers to prefer anonymous letters to properly attributed letters whose writers had the courage of their honest convictions to identify themselves.

29. I hold, therefore, that it is necessary for the Plaintiff to adduce evidence of malice against all three Defendants individually, and in so far as the Plaintiff has not adduced such evidence against one or more of the Defendants or in one or more of the particulars of malice, I will not leave those parts of the case to the jury.