28 Feb 2022
1. The defence of consent is a complete defence in a defamation action. The defence has been codified in some jurisdictions such as New Zealand and Ireland, but remains a common law defence in Hong Kong. The consent itself can be express, implied or by conduct, but the proof of the consent must be clear and unequivocal. The defence become inapplicable if the publication is not substantially the same as that to which was consented to.
2. This is illustrated in Frew v John Fairfax publications Pty Ltd  VSC 31. A newspaper columnist, Mr. Sykes, wrote an article in the form of a review of the Mr. Frew’s autobiography. Mr. Frew alleged the article was defamatory and sued the publisher and Mr. Sykes. They applied to include in their pleading a defence of consent by arguing that Mr. Frew had sent Mr. Sykes a copy of his autobiography and on the flyleaf, endorsed a message hoping Mr. Sykes would enjoy the book. Based on this, the defendants argued that Mr. Frew knew of Mr. Sykes writing style and consented to the review being “colourful, satirical, irreverent and metaphoric and thus be defamatory of him”. The Court rejected this argument and stated that there was no evidence to suggest that Mr. Frew had consented to exaggeration so as to permit Mr. Sykes to write in more defamatory terms than what the plaintiff wrote about himself.
𝐃𝐄𝐅𝐄𝐍𝐂𝐄 𝐎𝐅 𝐂𝐎𝐍𝐒𝐄𝐍𝐓 𝐈𝐍 𝐄𝐍𝐆𝐋𝐈𝐒𝐇 𝐂𝐀𝐒𝐄𝐒
3. At first glance, the defence of consent appears to be a rather curious – under what circumstances would prompt a potential plaintiff to willingly consent to someone else publishing a statement that would ultimately harm his/her own reputation?
4. In Chapman v Lord Ellesemere and Others  2 KB 478, the plaintiff was granted a license to train horses at the Jockey Club. His racehorse had won a race, but subsequently, the stewards of the Jockey Club conducted an investigation into the horse and thereafter published a statement stating, inter alia, that a drug had been administered to him, that the horse would be disqualified from that race and for all future races and warned the plaintiff trainer off of Newmarket Heath (the area that covered the subject racecourse).
5. The statement was published in the Jockey Club’s racing calendar and the Times Newspaper. The trainer sued for defamation, alleging that the statement was understood to mean, inter alia, that he had himself administered the drug to the horse and that he was unfit to be a trainer and/or had acted in a dishonest manner.
6. Slesser LJ held that the publication of the stewards’ decision in the racing calendar was consented by the plaintiff as his license to train horses at the club was subject to the Jockey Club’s rules, which allowed the stewards to publish their decision in the club’s racing calendar. Furthermore, the publication in the Times Newspaper was merely a true statement of the decision.
7. Another English case can be found in Carrie v Tolkien  EWHC 29 (QB). Mr. Carrie operated a blog relating to his self-published book. In his book, Mr. Carrie alleged that he had suffered abuse at the hands of Catholic priest, John Tolkien (son of the renowned fantasy author J.R.R. Tolkien), when he was a child.
8. In turn, Royd Tolkien (the great-grandson of J.R.R. Tolkien) posted several comments on Mr. Carrie’s blog. The comments alleged, inter alia, that Mr. Carrie was a “fraudster who has tried for many years, unsuccessfully, to defraud and extract money from the Catholic Church, the Tolkien family and other celebrities”.
9. Mr. Carrie discovered the comments four hours later. It was not disputed that it was within his power to remove the comments, but he chose not to do so. Instead, he had posted a response to the comments and subsequently commenced defamation proceedings.
10. Mr. Tolkien applied for summary judgment against Mr. Carrie by relying on the defence of consent. The Court agreed and explained that Mr. Carrie’s justification of leaving the comments online so as to allow people to read his response “in context” did not undermine the defence of consent. The Court also found it difficult to reconcile Mr. Carrie’s conduct of leaving the comments undeleted for 22 months (the time between when the comments were first posted and when the hearing took place) and his suggestion that he had suffered “substantial upset and distress” or that he had “concerns about the welfare and safety of [his] family”.
𝐃𝐄𝐅𝐄𝐍𝐂𝐄 𝐎𝐅 𝐂𝐎𝐍𝐒𝐄𝐍𝐓 𝐈𝐍 𝐇𝐎𝐍𝐆 𝐊𝐎𝐍𝐆
11. The defence of consent has seldom been tested in the Courts of Hong Kong and the lone successful case appears to be Yiu Shing Yin v Kwok Yik Ho and Another  HKDC 514.
12. Parties were owners in an estate in Tai Kok Tsui (“the Estate”). Mr. Yiu complained of some Chinese words published by Mr. and Mrs. Kwok on a glass window in their shop in the Estate (“the Shop”). Mr. Yiu complained the offending words (“the Words”) meant that he was elected as the chairman of the incorporated owners of the Estate unlawfully and he or his agent had criminally damaged the sign board(s) of the Shop.
13. The Court accepted the evidence of the Kwoks that Mr. Yiu had full knowledge of the Words and that during an oral exchange between the parties, Mr. Yiu had explicitly communicated his consent to the Kwoks for posting the Words in their Shop and not in a public place.
14. At trial, Mr. Yiu attempted to argue that the scope of his consent excluded the public from reading the Words. The Court emphatically rejected this suggestion as it held that Mr. Yiu clearly knew the Shop was open to customers both owners and non-owners of the Estate, hence members of the public would still be able to read the Words.
15. Mr. Yiu also complained that the Words were not promptly removed when he instructed his solicitors to issue a demand letter, which was written in English, to the Kwoks some 7 months after the Words were first posted. The Court held that there was no merit to this complaint as the Kwoks did not understand the demand letter when they first received it. However, they consulted a lawyer and upon understanding the demand, promptly removed the Words. The Court explained that while consent previously given could be withdrawn by notice, such withdrawal must be effectively communicated before it could be considered effective.
16. It is noteworthy that the Court relied on the 7 months of Mr. Yiu’s inaction as evidence of the express oral consent but did not examine whether the inaction itself constituted consent by conduct.
17. While the defence of consent in defamation cases is a rather uncommon and narrow, it is nonetheless a complete defence.
18. Hence, it is in the best interest of a claimant to be fully aware of what he/she has consented to being published. Furthermore, upon discovery of the offending publication, the claimant should take immediate action so as not to be seen to have further consented to the publication.
Written by : Isaac Yung, Barrister-at-law
* This article first appeared in the February 2022 issue of the Hong Kong Lawyer, the official journal of The Law Society of Hong Kong. (Please click here)
*The article is also available on Lexology.