Case Law, Hong Kong: Pui Kwan Kay v Ming Pao, Responsible Journalism Defence fails

25 09 2013

Pui Kwan KayThe Hong Kong Chinese-language newspaper Ming Pao Daily was ordered to pay defamation damages of HK$500,000 (£69,000) to Hong Kong Football Association vice-chairman Pui Kwan-Kay. In a ruling handed down on 6 September 2013 ([2013] HKCFI 1442) Mr Justice Thomas Au Hing-cheung rejected the newspaper’s defence of “responsible journalism”.

Background

The case arose out of a football match in the Hong Kong First Division between Tuen Mun Progoal (“Progoal”) and Happy Valley Athletic Association (“Happy Valley”) on 31 March 2009.  Progoal conceded four goals in the last seven minutes of the game, leading to allegations of match fixing.

As a result of the public concern about match-fixing, the Hong Kong Football Association held a board meeting to discuss the matter. After the meeting, they further held a press conference at the headquarter.   After the press conference, when the plaintiff was leaving some journalists questioned him for about 10 minutes about Progoal and its backers and finances (“the Questioning Session”).

The defendant published a news report by its journalist, Mr Ku, in which it was said that the plaintiff had said that he did not know who was Progoal’s sponsor and that its financial support came from various sources, which he did not disclose.

Other journalists who were present at the Questioning Session also reported the plaintiff’s comments but in rather different terms.  In particular, Apple Daily reported that the plaintiff said that he himself had at one time personally sponsored Progoal.

The following day the defendant published an Editorial entitled “The questionable match is shrouded with suspicions. Death is the fate of soccer if it is allowed to pass through equivocation”.  This was written by Mr Ho, a senior leader writer at the paper.

The Editorial said that a number of people had given contradictory versions of events and that the plaintiff was one such person:

“When he was answering queries raised at the press conference held by the Hong Kong Football Association Ltd last Monday, he was unable to give any information as to who was the proprietor of Progoal and what was its source of funds. However, 3 days afterwards, when he was interviewed by reporters, he admitted close relationship with Progoal. He was able to say in great details the background, proprietor and source of funds etc of Progoal. In other words, why did he keep a distance with Progoal 3 days ago? That is intriguing.

The jury found that the Editorial was defamatory of the plaintiff and which carried the following defamatory meanings:

(1) Mr Pui deliberately hid his knowledge of and connection with Progoal with a view to distancing himself from the incident of match-fixing;

(2) Mr Pui acted suspiciously by giving contradictory versions about his knowledge of and connection with Progoal.

The jury rejected the defences of justification and fair comment and awarded damages of HK$500,000.  The judge then considered the defence of “responsible journalism”.

The Judgment

After setting out the background, the judge briefly summarised the nature of the “responsible journalism” defence.  He noted that

“in order to succeed in this defence, a defendant publisher or journalist needs to show that:

(1) The subject matter of the article was of a matter of public interest; and

(2) If the publication, including the defamatory statement, passes the public interest test, the steps taken to gather and publish the information were responsible and fair in the circumstances [28]

He then considered Lord Nicholls’ ten “non-exhaustive” factors from the Reynolds case ([2001] 2 AC 127), namely

(1) The seriousness of the allegation. The more serious the charge is, the more the public is misinformed and the individual harmed, if the allegation is not true.

(2) The nature of the information, and the extent to which the subject matter is a matter of public concern.

(3) The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.

(4) The steps taken to verify the information.

(5) The status of the information. The allegation may have already been the subject of an investigation which commands respect.

(6) The urgency of the matter. News is often a perishable commodity.

(7) Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. However, an approach to the plaintiff will not always be necessary.

(8) Whether the article contains the gist of the plaintiff’s side of the story.

(9) The tone of the article. A newspaper can raise queries or call for an investigation. It needs not adopt allegations as statements of fact.

(10) The circumstances of the publication including the timing.

In relation to the first and ninth factors, the judge said that the allegations were of a serious nature. They suggested that Mr Pui was involved in match-fixing [45].

In relation to the second, third and fourth factors there was no dispute that the subject matter was of public concern.  However, Mr Ho had relied exclusively on his own paper’s news report of the plaintiff’s remarks after the press conference.  The judge was of the view that

“before relying on Mr Ku’s Report alone as a fundamental basis in making those defamatory statements in the Editorial, I am of the view it is only fair and responsible that Mr Ho should have also looked at the other newspaper reports on the Questioning Session to verify what Mr Ku’s Report had said about Mr Pui’s answers”. [48](4)

In relation to the seventh and eighth factors, Mr Ku had made enquiries of the plaintiff and the newspaper had (in its news section) reporting his respponse.  The defendant submitted that

“given that (a) Mr Ku had sought explanations from Mr Pui for his lack of answer at the Questioning Session, (b) Mr Pui had answered the enquiry, and (c) that Mr Pui’s answer had been referred to in the newspaper, the defendants must be regarded having acted fairly and reasonably in responsibly publishing the defamatory statements in Editorial.” [52]

This submission was rejected by the judge who held that given the importance of what was said by Mr Pui after the press conference it was only fair and reasonable to expect and require Ming Pao to put Mr Pui’s answer to the enquiry in the Editorial itself and to draw the attention of reader to what Mr Pui was reported to have said at the Questioning Session in the other newspaper reports [55].  Neither of these were done.

As a result, the defence of responsible journalism was not established and the jury’s verdict on damages was confirmed.

Comment

This is a slightly unusual “responsible journalism” case.  The writer of the words complained of had made no attempt at independent verification of their truth but had relied on an earlier report in the same newspaper.  It seems that the writer of the first article had simply made a mistake – he had not heard the plaintiff’s statement that he had been the sponsor of Progoal.  As a result, the Editorial which was sued on was based on a mistaken factual premise.

The Judge held that the defendant had not acted responsibly because of a failure to draw proper attention to the plaintiff’s response to a request for an explanation.  The serious criticism in the Editorial did not set out or draw attention to the plaintiff’s own explanation.

More importantly, the writer of the Editorial had failed to read and report other newspaper reports of the Questioning Session.  In other words, it was unreasonable to make a defamatory allegation based on a report of the facts in a single newspaper.  The duty of verification required a writer to take further steps to “check the facts”.

Both these points seem unexceptionable.  Reliance on what turned out to be an incomplete report in the defendant’s own newspaper led the writer of the Editorial to make an entirely unjustified allegation against the plaintiff.  It is not surprising that, in these circumstances, the responsible journalism defence was unsuccessful.


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