21 Oct 2021
𝐁𝐀𝐂𝐊𝐆𝐑𝐎𝐔𝐍𝐃
1. In Chow Wing Kai also known as Wave and Wave Chow v Liang Jing [2021] HKDC 609, the Hong Kong Court was given the opportunity to address the proper approach in determining the meanings of social media posts in the context of defamation.
2. In this case, both the plaintiff, Mr Chow, and the defendant, Mr Liang, worked for the same insurance company and were both part of the same team supervised by Mr Chow.
3. Shortly before and after Mr Liang received a notice of termination from the insurance company, he complained against Mr Chow by sending text messages with his mobile phone and posting on various social media platforms. Mr. Chow then commenced defamation proceedings against Mr Liang for these statements and sought general, aggravated and exemplary damages, injunctive relief and a court ordered apology.
4. In determining the meaning of the alleged defamatory words, HH Kent Yee referred to the summarized principles (which were not in dispute) as stated by Lok J in Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 at §42. That is, while considering the context and circumstances of the words used, the court should put itself in the position of the fictitious ordinary reader to determine and construe the single meaning of the words in accordance to their natural and ordinary meaning.
The “fictitious ordinary reader” is “a sort of half-way house between the unusually suspicious and
the unusually naïve. He is essentially fair-minded and reasonable and does not jump to hostile
conclusions on flimsy evidence; but he may be guilty of a certain amount of loose thinking and
does not read a sensational article with cautious and critical care … and his capacity for
implication or drawing inferences is greater than the lawyer’s … The layman reads in an
implication much more freely, and … is especially prone to do so when it is derogatory …”.
5. Chow Wing Kai begins like any typical defamation case but takes an interesting turn when the court’s attention was drawn to the recent judgment of the UK Supreme Court (“UKSC”) in Stocker v Stocker [2020] AC 593.
𝐀 𝐍𝐄𝐖 𝐂𝐋𝐀𝐒𝐒 𝐎𝐅 𝐑𝐄𝐀𝐃𝐄𝐑 𝐈𝐒 𝐁𝐎𝐑𝐍
6. In Stocker v Stocker, Mrs Stocker had posted a “comment” on a Facebook friend’s “Status Update”. This began an exchange of comments between the two. One such comment included Mrs Stocker stating that her former husband, “tried to strangle me”. Mr. Stocker sued and alleged that these words would have been understood to mean that he had tried to kill Mrs Stocker, which were untrue and therefore defamatory. Mrs Stocker defended her comment by arguing that in the context of domestic violence, her words merely meant that Mr. Stocker had violently gripped her neck, which was true, and hence her statement would be defensible against a claim of defamation.
7. At first instance, Mitting J referred to the dictionary definition of “strangle” and concluded that the reader could not have understood Mrs Stocker as alleging Mr Stocker had merely tried to “compress her neck”. The English Court of Appeal upheld that decision and the matter proceeded to the UKSC.
8. Lord Kerr, delivering the unanimous judgment of the UKSC, warned of “the danger of the use of dictionary definitions to provide a guide to the meaning of an alleged defamatory statement” because such meaning was “not fixed by technical, linguistically precise dictionary definitions divorced from the context in which the statement was made”. Instead, he urged judges to “step aside from a lawyerly analysis”…but “to inhabit the world of the typical reader of a Facebook post”.
9. The fact that the alleged defamatory statement was made on Facebook was critical as the UKSC held that the advent of the 21st century has brought on a new class of reader: the social media user.
10. Unfortunately, other than determining a social media user must keep in mind the way in which posts/tweets are made and read, the UKSC did not expand upon the characteristics of “the social media user”. This contrasts with other well-known legal metaphorical figures such as “the fictitious ordinary reader”, “the man on the Clapham omnibus” or the “officious bystander”.
11. Nonetheless, the UKSC held that it was wrong to engage in an elaborate analysis of a 140-character tweet or unwise to parse a Facebook posting for its theoretically or logically deducible meaning because such platforms are casual and conversational in nature. Readers typically read and simply pass on.
12. HH Kent Yee was therefore persuaded to put himself in the position of a social media user and take an impressionistic instead of analytical approach in ascribing meanings to words published by way of posts on social media. In doing so, the judge implicitly appeared to have categorized all social media as “fast paced”, despite the 136 words complained of are quite different from a 140-character tweet. The judge also made no attempt to distinguish between the different social media (Facebook, Zine, Baijiahao) that contained the defamatory words.
13. At the time of writing this article, no higher court in Hong Kong has had the opportunity to determine the extent of applicability of Stocker v Stocker. The English case is a positive judgment for freedom of expression online as the judgment recognizes the unique nature of social media communication. In particular, such communication is fast paced and its users may not analyze, pause or reflect on the comments that they post and read.
14. However, it also leaves a number of glaring questions unanswered. For instance, is it fair to put all communication on social media under the same category as “fast paced”? How should the courts determine the meaning of an article on social media platforms such as a forums, blogs or reviews? Clearly, there are many online social media platforms that actively invite readers to exchange ideas on a level deeper than a casual conversation. These are not platforms in which the reader simply reads and moves on but in fact have the ability to impact the behaviour of its readers. Also, will courts continue to take an impressionistic approach on posts that are serious in nature and are not frivolous or transitory? These questions remain outstanding for the court to clarify.
𝐓𝐇𝐄 𝐀𝐏𝐎𝐋𝐎𝐆𝐘 𝐎𝐑𝐃𝐄𝐑
15. HH Kent Yee held that the words published on social media were defamatory and further rejected Mr. Liang’s defence of fair comment. Other than damages, Mr. Chow also sought an order compelling Mr. Liang to apologize.
16. The judge confirmed that the court had general equitable jurisdiction to grant such an order. The real question was whether he should exercise the discretion to make such an order as a legal remedy in the present case.
17. Mr. Chow’s counsel referred the court to the Malaysian Court of Appeal decision in Credit Guarantee Corp Malaysia Bhd v SSN Medical Products Sdn Bhd [2017] 2 MLJ 629 where it quashed the apology order granted against an unwilling defendant by the trial judge. Harmindar Singh JCA opined that the nature of the remedy demanded the exercise of discretion to grant such orders called for the utmost restraint. In other words, only in an exceptional case would an order for apology be favourably considered by the court. The Malaysian Court of Appeal was also of the opinion that the apology ordered, despite the defendant’s unwillingness to do so, was really useless and an order ought to have been considered only in the case where the offending party was willing.
18. HH Kent Yee also referred to Ma Bik Yung v Ko Chuen (2006) 9 HKCFAR 888 where the CFA dealt with an appeal concerning the scope of s.72(4) of the Disability Discrimination Ordinance (Cap. 487) which states the District Court may order a respondent to perform any reasonable act to redress any loss or damage suffered by the claimant. The CFA concluded that an order for an apology could be made against an unwilling defendant under said section but observed that “with an unwilling defendant, it may well be that an apology, which will be an insincere one, would usually not, be a reasonable act for him to perform.”
19. On the evidence, it was clear that Mr Liang was unwilling to make an apology and Mr Chow failed to advance special grounds to justify an order for an apology. In such circumstances, the court declined to grant an apology order.
20. For this reason, the HH Kent Yee was not able to fully explore the full scope of a court-ordered apology against an unwilling defendant.
21. An apology order granted against an unwilling defendant inevitably raises two concerns. The first is that such an order to apologize compels a defendant to do so would be enforceable by contempt proceedings. In other words, non-compliance could result in fines or imprisonment for contempt. What weight, if any, would the court accord to this factor?
22. The second is whether an apology order would infringe upon the defendant’s guaranteed rights – the freedom of thought or conscience (under Article 31(1) of the Basic Law and Article 15 of the HK Bill of Rights) and the freedom of expression (under Article 27 of the Basic Law and Article 16 of the HK Bill of Rights).
23. In Ma Bik Yung, the CFA laid down the following steps – if a court was minded to grant remedies (including an order for an apology), the appropriate procedure would be to proceed by making in the first instance provisional orders, then give parties an opportunity to make representations before the provisional orders are made final. At this stage, the court could hear arguments on whether such an order in that particular case would infringe on the defendant’s guaranteed rights and freedoms.
24. There are arguments in favour of making court-ordered apologies, such as it would help address the psychological needs of the plaintiff and redress the plaintiff’s loss better than damages. However, there has yet to be a successful or reported case on a court-ordered apology to a defamation case in Hong Kong. This should come as no surprise when one considers the successful plaintiff would have likely received pecuniary relief and vindication from the judgment already. In addition, the plaintiff would likely be hesitant to incur further costs and only obtain an insincere apology.
𝐂𝐎𝐍𝐂𝐋𝐔𝐒𝐈𝐎𝐍
25. In defamation litigation, context of the words always matter. However, even the context of the medium is also of material consideration when considering the meaning of words posted on social media.
26. While judges are prepared to construe meanings on social media with an impressionistic instead of analytical approach, it is by no means a license for social media users to use careless language as the words used can still be held defamatory.
Written by : Isaac Yung, Barrister-at-law
* This article first appeared in the June 2021 issue of the Hong Kong Lawyer, the official
journal of The Law Society of Hong Kong. (Please see here)