In Hong Kong, the maker of a defamatory statement may claim that he has a defence against liability, such as the following:[2]
Justification (or truth): the defendant has to establish that the defamatory statement in respect of which he is sued is substantially true, provided that where there are words containing two or more distinct charges, the words not proved to be true do not materially injure the defamed person’s reputation having regard to the truth of the remaining charges.[3]
Fair comment: the defendant has to establish that the words complained of are fair comment on a matter of public interest, provided that where there are words consisting partly of allegations of fact and partly of expression of opinion and the factual allegations are not all proved to be true, the expression of opinion is fair comment having regard to the underlying facts that are proved.[4] However, this defence is inapplicable where the words were made with malice.
Absolute privilege: statements made in certain situations where it is for the public benefit that a person should be able to speak or write freely (e.g. those made in or in connection with judicial proceedings, or those made in the course of legislative debate) are privileged and will not be subject to a defamation claim.
Qualified privilege: statements made in circumstances less compelling than in (c) above, but nonetheless should be privileged on the grounds of public policy and convenience (e.g. where the maker of the statement has a legal, social or moral duty to make the statement and the recipient has a corresponding interest to receive it, including responsible journalism by journalists and editors). This privilege will be lost where the defamatory statement is made with malice.
Unintentional defamation: the Defamation Ordinance (Cap. 21) provides a statutory defence whereby the innocent maker of a defamatory statement can promptly make an offer of amends by affidavit to (i) specify the facts relied upon by that maker to show that the words were published innocently, and to (ii) offer a suitable correction of the complained words and a sufficient apology to the defamed party. If this offer is not accepted, then it shall qualify as a defence against future libel or slander proceedings in relation to the said publication.[5]