It is trite law that where a person repeats a defamatory statement made by another person, that person is liable as if he were the author of the statement.  This is known as the “Repetition Rule”.  In our recent victory in an appeal to the Court of Final Appeal, the Court held that when assessing damages to a defendant caught by the “Repetition Rule”, the credibility of the source of defamation should also been taken into account.

Background of the case

In Oriental Daily Publisher Ltd & Anor v Ming Pao Holdings Ltd FACV 1/2012, 26 September 2012, the plaintiffs were the publisher of the Oriental Daily News and the honorary chairman of its parent company, and the defendants were the publisher and chief editor of Ming Pao Daily. The suit article was a short news article consisting of a caption and a photograph, reporting a demonstration outside the High Court Building by one Ma Chiu Sing (“Ma”) who referred himself as the “Hong Kong Bin Laden”. In the photograph, Ma displayed a banner with statements defamatory to the plaintiffs.

The plaintiffs commenced legal action against the defendants for libel for defendant’s repetition of the defamatory statements of Ma by displaying the photograph in the defendants’ newspaper article.

Court of First Instance

At the trial, the defendants’ primary case was that the words in the suit article could not have been understood in a defamatory sense or were not defamatory.It was unsuccessful and the trial judge awarded to the plaintiffs substantial damages, in the sums of HK$150,000 and HK$1,500,000 as general damages to the 1st and 2nd plaintiff respectively, with an additional HK$75,000 to each plaintiff as aggravated damages.

Court of Appeal: First mention of the “Low Credence” argument

In the appeal, the defendants argued, inter alia, that the damages awarded were manifestly excessive.The defendants contended that even the defendants had repeated some serious allegations that were made against the plaintiffs, a reasonable reader of Ming Pao will no doubt consider the allegations with the appropriate degree of scepticism.The Court of Appeal was of the view that in such a context it is necessary to bear in mind that Ma with his previous criminal background might have an ulterior motive in putting forward the defamatory statements and also the fact that the article was a report of what Ma had said which must be a relevant factor to be taken into account in assessing damages.The award of damages was therefore substantially reduced to HK$50,000 and HK$150,000 as general damages to the 1^st and 2^nd plaintiffs respectively.The award of aggravated damages was set aside.

Court of Final Appeal

The plaintiffs took the case to the Court of Final Appeal and argued that the “Low Credence” Argument should not be accepted as a matter of law and to restore the award of aggravated damages.

The Court of Final Appeal reiterated that the damages awarded to a defamation plaintiff is compensatory in nature and has a threefold function: (1) to recover, as general compensatory damages, for the wrong he has suffered; (2) to compensate him for the damage to his reputation; vindicate his good name; and (3) take account of the distress, hurt and humiliation which the defamatory publication has caused”. In performing the assessment the Court held that it must take into account all the circumstances of the case relevant to determining what would be an appropriate compensatory sum.

The Court of Final Appeal concluded that defamatory accusations originating from someone whose credibility is doubted is likely, as a matter of common sense, to do less harm to the plaintiff’s reputation, cause less distress and require less to vindicate his reputation, than the same accusations originating from an authoritative and credible source.Unless excluded by some legal principle or as a matter of fact, low credence is a potentially important reason for a lower award.The award of the Court of Appeal is therefore upheld.

No aggravated damages to defamed corporate plaintiffs

In disallowing the award for aggravated damages sought by the plaintiffs, the Court of Final Appeal added that a defamed corporate plaintiff is a company without a soul, whose reputation is merely a commercial asset, is hardly likely to be regarded as having feelings capable of being injured, whether borrowed from its officers or employees or otherwise.Therefore it is not entitled to such an award.