Jurisdiction - Hong Kong
Reports and Analysis
Hong Kong – Reportage As A Defence In Defamation Cases Accepted By The Courts.

2 March, 2015


In the recent decision of Jigme Tsewang Athoup v Brightec Limited and others (HCA 1693 of 2011)1 (the “Jigme Case”), the Court of First Instance was asked to consider reportage2 as a defence in that case involving alleged defamation.


This is the first reported case in Hong Kong to consider such a defence as formulated in the UK Court of Appeal’s decision in Roberts v Gable3. The case concerns an article published in a local magazine (the “Magazine”) concerning a highly regarded master of Tibetan Buddhism.


Deputy High Court Judge Lok considered the developments relating to the defence of public interest in defamation law and the human rights considerations under which the public interest defence was established, and concluded that the defence of reportage is available in Hong Kong.


The Development Of The “Public Interest” Defence


The public interest defence has been developed in recent years to protect news media from defamation actions arising out of the reporting of information of importance to the public. In the UK, the public interest defence was recognised by the House of Lords’ 2001 decision in Reynolds v Times Newspaper4. Two essential elements are required under the public interest defence (also known as the “Reynolds qualified privilege” defence), namely (1) the article as a whole must be in the public interest; and (2) there must be responsible journalism. The House of Lords set out a non-exhaustive list of factors which would be relevant to the issue of whether the standard required to meet the test of responsible journalism has been fulfilled in a particular case.5


The Hong Kong Courts have in the past considered the defence of Reynolds qualified privilege in a number of cases.6


The Defence Of Reportage


The defence of reportage was developed from the principles set out in the Reynolds qualified privilege case.


Mere repetition of allegations against a person made by other people is not a defence in defamation law (the “Repetition Rule”). In the words of a House of Lord’s judge, “repeating someone else’s libelous statement is just as bad as making the statement directly”.7 Legislation has qualified the Repetition Rule to a certain extent by providing certain types of reporting (e.g. fair and accurate reporting of court actions) are privileged8. There was however no general privilege based on neutral reporting until the advent of the defence of reportage.


In the case of Roberts v Gable, the Court of Appeal in the UK accepted that reportage is a special form of Reynolds qualified privilege with its own distinctive features9. The Court took into account the following matters in respect of the proper approach to the reportage defence:


(i) The information must be in the public interest.


(ii) In a true case of reportage there is no need to take steps to ensure the accuracy of the published information.


(iii) If upon a proper construction of the thrust of the article the defamatory material is attributed to another and is not being put forward as true, then a responsible journalist would not need to take steps to verify its accuracy.


(iv) The test is to establish the effect of the article as a whole and it is for the judge to rule upon it in a way analogous to a ruling on meaning.


(v) The protection will be lost if the journalist adopts the report and makes it his own or if he fails to report the story in a fair, disinterested and neutral way.


(vi) To justify the attack on the claimant’s reputation the publication must always meet the standards of responsible journalism as that concept has developed from the Reynolds case, the burden being on the defendants.


(vii) The seriousness of the allegation is obviously relevant for the harm it does to reputation if the charges are untrue.


(viii) The urgency is relevant in the sense that fine editorial judgments taken as the presses are about to roll may command a more sympathetic review than decisions to publish with the luxury of time to reflect and public interest can wane with the passage of time.


The Defence Of Reportage As Analysed In The Jigme Case


The background to the Jigme Case relates to a religious dispute among two rival camps as to who the proper Karmapa (the highest figure or the living Buddha) was in one of the schools of Tibetan Buddhism (the “Karmapa Dispute”).


According to the judgment, the Magazine and its chief editor did not seek to justify the truthfulness of the alleged defamatory statements and adopted reportage as their only defence at trial. The Defendants’ case was that the Magazine served as a neutral forum for supporters of the two camps to put forward their allegations or views relating to the Karmapa Dispute. The author of article in question used a pseudonym and was not an employee of the Magazine. The article was supplied to the Magazine through a scholar and the Magazine did not know the true identity of the author.


It was the Defendants’ argument that if the readers read all the articles in the May and June 2011 issues, they should know that the author of the article in question was not an employee of the Magazine but a supporter of one camp, and the article in question was no more than a report of a particular view of such supporter.


The Court was of the view that the first element of reportage was satisfied as there was real public interest in the matter about which the article in question was published. However, the Court concluded that the defence of reportage was not available to the defendants because:


(1) The article in question was not a report made by the Magazine. The Court held that an article written in the name of an unknown person cannot be described as a “report” in which the anonymous author has written certain statements; and


(2) The element of attribution was missing. The Court considered (and it was conceded by the Defendant during cross-examination) that even if a reader were to read all those articles, he would not be able to know whether the author under the pseudonym was associated with the Magazine or not.


The Court awarded the sum of HKD 150k as compensatory damages to the Plaintiff after balancing all the factors of the case.




Although the Magazine in the Jigme Case was unsuccessful in using reportage as a defence, the Court’s approval of the defence in Hong Kong is certainly good news for journalists and other media professionals. As with the public interest defence set out in the Reynolds case, to rely on the reportage defence successfully, the key requirements are that the published material must be of public interest and there must be responsible journalism.


End Notes:


1 Judgment dated 13 January 2015


2 Formulated in the UK Court of Appeal’s decision in Roberts v Gable [2008] QB 502


3 [ 2008 ] QB 502


4 [ 2001 ] 2 AC 127


5 The 10 listed factors are:


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


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


(iii) 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.


(iv) The steps taken to verify the information.


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

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


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


(viii) Whether the article contained the gist of the plaintiff’s side of the story.


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


(x) The circumstances of the publication, including the timing.


6 The Hong Kong cases included Cutting de Heart v Sun News Ltd & Another [ 2005 ] 3 HKLRD 133, Yaqoob v Asia Times Online Ltd [ 2008 ] 4 HKLRD 911, Blakeney-Williams v Cathay Pacific Airways Ltd [ 2011 ] 1 HKLRD 901 and Pui Kwan Kay v Ming Pao Holdings Ltd (2013 judgment in HCA 854/2010)


7 [ 1964 ] AC 234


8 Section 14 of the Defamation Ordinance (Cap. 21)


9 [ 2008 ] QB 502




For further information, please contact:


Malcolm Kemp, Partner, Stephenson Harwood

[email protected]


Alexander Tang, Stephenson Harwood

[email protected]


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