Case under fire does not come as some bolt from the blue

In the article headlined, 'Victims the losers in court decision' (South China Morning Post, November 28), Shiu Sin-por had two main criticisms of the decision of the Court of Final Appeal in the recent defamation case brought by Paul Tse Wai-chun against Albert Cheng King-hon and Peter Lam Yuk-wah.

These are firstly, that the effect of the decision is that all that now seems to matter in a case of 'fair comment' is whether the defendant honestly believed in what he said, and, secondly, that the court had done something unheard of, subjecting the unfortunate people of Hong Kong to a radical change in the law with no precedent elsewhere.

With respect, both these criticisms are somewhat misconceived. This decision does not change the basic requirements of the defence of fair comment. It will still only apply if the statement is a comment, that is an expression of opinion and not purporting to be a statement of fact. It must be based upon fact, those facts must themselves be true (subject to one exception that there is no space to deal with here) and the facts must be stated along with the comment, or be readily accessible. In other words, the defence only applies if the reader or listener is able to exercise his or her own judgment as to whether the opinion is justified. The defence is only available if the matter being discussed is one of public interest, which means something the public have good reason to be interested in, not simply someone else's private life, however fascinating. Finally, the statement must be one which could have been made by an honest person. It is this last element that may be nullified by proof that the person did not in fact genuinely believe it, and this is the only change introduced by the court.

Nor does the case come as some bolt from the blue. Various law reform committees including those in England, British Columbia and the Republic of Ireland have recommended similar changes and in New South Wales and New Zealand changes have actually been made by legislation.

Mr Shiu is right that the law of defamation is generally unnecessarily complex, though not that it is generally unfair to individuals complaining of defamation (save, perhaps, for the fact that legal aid is not available so truly only the wealthy can sue - or defend). But this case actually clarifies the law and seems wholly appropriate in a place with vigorous mass media and an educated population able to exercise its own judgment.

JILL COTTRELL