| The administration was asked
to consider adopting a definition along the
lines of “publisher” in section
1 of the UK Defamation Act 1996 for the word “publishes” in
the proposed section 9C of the Crimes Ordinance
relating to handling seditious publications. |
| The defence in section 1 of
the UK Defamation Act |
| 2. |
The section in the UK Act (see Annex)
provides a statutory defence to the tort
of defamation. The general rule in defamation,
which protects personal reputation, is
that no one shall publish a false and defamatory
statement concerning another person without
lawful justification. The tort provides
a means whereby the individual can vindicate
his reputation by claiming a civil remedy
through the courts. The state of mind of
someone who publishes a libel is generally
immaterial in determining liability, because
malice is implied from mere publication
of defamatory matter.
|
| 3. |
However, at common law, the courts took
a more lenient attitude towards those who
played only a subordinate part in the dissemination
of a libel e.g. a newspaper distributor
or librarian. Such a person may be held
not to have published the work if he did
not know, and could not reasonably have
been expected to know, that it contained
a libel.
|
| 4. |
The statutory defence clarifies the rather
uncertain common law position. It is not
available to “authors”, “editors” or “publishers” (in
the commercial sense) of defamatory material.
It is available to others whose work may
in some way contribute to the publication
of material which someone else has chosen
to publish, who are excluded from the definitions
of “author”, “editor” and “publisher”.
However, the defence does not apply if they
knowingly took part in producing a defamatory
publication or had reason to believe that
they were doing so. The onus is on defendant
to show that the defence applies to him. |
| The definition of “publisher” in
the Act |
| 5. |
The UK Act defines “publisher” as
meaning a commercial publisher, that is,
a person whose business is issuing material
to the public, or a section of the public,
who issues material containing the statement
complained of in the course of business.
|
| Handling seditious publication |
| 6. |
The offence proposed in the Bill as
the new section 9C incorporates the mental
element of deliberate intent to incite.
The onus is placed on the prosecution to
prove that intention beyond a reasonable
doubt if a conviction is to be secured.
It is therefore not possible that someone
could be convicted of the offence if “he
did not know, and had no reason to believe,
that what he did caused or contributed
to the publication” of a seditious
publication (cf the UK statutory defence).
|
| Conclusion |
| 7. |
It is neither necessary nor appropriate to adopt the definition
provided in the Act into the new section 9C in the Bill.
|
| 8. |
The intention of the new section 9C is not to limit the offence
to commercial publication. It is irrelevant whether a seditious
publication is produced by someone whose business is publishing
as opposed to an amateur with a print facility. Using the definition
in the UK Act would be contrary to this policy intention. Publish
is meant to include all means of dissemination to the public
and “publishes” is only one of a list of acts referred
to. There is nothing to be gained by defining “publishes”.
|
| 9. |
As drafted, the new section 9C includes a mental element which
excludes innocent dissemination and those who are unaware of the
nature of the contents of the publication. |
