Hong Kong Ordinances

DEFAMATION ORDINANCE - SECT 25

Unintentional defamation

(Past version on 30/06/1997).

Amendments retroactively made - see 25 of 1998 s. 2

(1) A person who has published words alleged to be defamatory of another
person may, if he claims that the words were published by him innocently in
relation to that other person, make an offer of amends under this section; and
in any such case-

   (a)  if the offer is accepted by the party aggrieved and is duly performed,
        no proceedings for libel or slander shall be taken or continued by
        that party against the person making the offer in respect of the
        publication in question (but without prejudice to any cause of action
        against any other person jointly responsible for that publication);

   (b)  if the offer is not accepted by the party aggrieved, then, except as
        otherwise provided by this section, it shall be a defence, in any
        proceedings by him for libel or slander against the person making the
        offer in respect of the publication in question, to prove that the
        words complained of were published by the defendant innocently in
        relation to the plaintiff and that the offer was made as soon as
        practicable after the defendant received notice that they were or
        might be defamatory of the plaintiff, and has not been withdrawn.

(2) An offer of amends under this section must be expressed to be made for the
purposes of this section, and must be accompanied by an affidavit specifying
the facts relied upon by the person making it to show that the words in
question were published by him innocently in relation to the party aggrieved;
and for the purposes of a defence under subsection

(1)(b) no evidence, other than evidence of facts specified in the affidavit,
shall be admissible on behalf of that person to prove that the words were so
published.

(3) An offer of amends under this section shall be understood to mean an
offer-

   (a)  in any case, to publish or join in the publication of a suitable
        correction of the words complained of, and a sufficient apology to the
        party aggrieved in respect of those words;

   (b)  where copies of a document or record containing the said words have
        been distributed by or with the knowledge of the person making the
        offer, to take such steps as are reasonably practicable on his part
        for notifying persons to whom copies have been so distributed that the
        words are alleged to be defamatory of the party aggrieved.

(4) Where an offer of amends under this section is accepted by the party
aggrieved-

   (a)  any question as to the steps to be taken in fulfilment of the offer as
        so accepted shall in default of agreement between the parties be
        referred to and determined by the Court of First Instance, whose
        decision thereon shall be final;

   (b)  the power of the court to make orders as to costs in proceedings by
        the party aggrieved against the person making the offer in respect of
        the publication in question, or in proceedings in respect of the offer
        under paragraph (a), shall include power to order the payment by the
        person making the offer to the party aggrieved of costs on an
        indemnity basis and any expenses reasonably incurred or to be incurred
        by that party in consequence of the publication in question, and if no
        such proceedings as aforesaid are taken, the Court of First Instance
        may, upon application made by the party aggrieved, make any such order
        for the payment of such costs and expenses as aforesaid as could be
        made in such proceedings. (Amended 25 of 1998 s. 2)

(5) For the purposes of this section words shall be treated as published by
one person (in this subsection referred to as the publisher) innocently in
relation to another person if and only if the following conditions are
satisfied, that is to say-

   (a)  that the publisher did not intend to publish them of and concerning
        that other person, and did not know of circumstances by virtue of
        which they might be understood to refer to him; or

   (b)  that the words were not defamatory on the face of them, and the
        publisher did not know of circumstances by virtue of which they might
        be understood to be defamatory of that other person, and in either
        case that the publisher exercised all reasonable care in relation to
        the publication; and any reference in this subsection to the publisher
        shall be construed as including a reference to any servant or agent of
        his who was concerned with the contents of the publication.

(6) Subsection (1)(b) shall not apply in relation to the publication by any
person of words of which he is not the author unless he proves that the words
were written by the author without malice. (Added 33 of 1961 s. 11) [cf. 1952
c. 66 s. 4 U.K.]