By Ody Lai

Petra is spreading information about Maria’s past relationships with Juan and Mario. Maria in person, demanded that Petra stop the rumour mongering otherwise she will report the matter to the police. Petra denied the accusations but few days later, members of the Bagong Bayani Association started receiving text messages that Maria was previously a “masahista” in Sexy Sauna where she met Juan and had sexual affair, then worked as “karaoke girl” in Pasay Lounge where he had another sexual affair with Mario. Maria wants to know what possible actions she has against Petra.

Maria can bring a civil action for the wrong done by Petra by way of defamation for monetary compensation, either libel and or slander. Libel is a defamatory statement in written form while slander one in spoken form. The difference is more complicated despite the clear boundary of oral against written defamation. Maria can opt to bring a criminal libel case against Petra but in Hong Kong this pose a serious restriction on freedom of speech, tougher to prove than the civil claim in tort.

Maria’s civil claim is that her reputation was lowered because of the statements. When a person tries to tarnish another person’s reputation by deliberate lies, then that is clearly defamatory. When it is a truthful account of facts, it may not be defamatory.

Meaning of the statements has to be considered, as it would appear to an ordinary, reasonable person listening or reading and how the statements were published or communicated. “Masahista and karaoke girl” may have double or multiple meanings. The double meaning may arise because of the irony or closely related meaning or refers to some cultural allusion or people would simply read something into them. In the Philippine culture, “Japayuki” word will come into the mind of the Filipino listener or reader as being a prostitute in Japan, even without having to know any special facts. But the allusion to prostitution may not be available to non-Filipinos and the meaning is not clear, then the likes of Maria has to prove to the court that it has another meaning.

Defamation is about people and their place in society and what others think of them. It is not about being emotionally hurt, causing feeling of depression and anger, but about reputations. Maria should answer the question “ after reading or hearing the statement, would others thought less of me?” If the answer is yes, as the natural consequence of the statement then Maria need not prove who are the actual persons who would think less of her.

If Maria were currently the President of the Bagong Bayani club as well as the church leader of the Pinoy Christian Association, then the words “masahista and karaoke girl” would tarnish her. But if Maria is the famous “mamasan” at Wan Chai red light district or Maria was previously a triple xxx rated porn star of the Philippine cinema, then there is no such lowering of reputation. Reputation involves a person’s morals, personality, competence, or ability as to what that person aims to achieve.

In different times and societies, the views of the people are divergent. Filipinos living in Philippines, ten year ago would think less of Maria as “masahista and karaoke girl”. But Filipinos living in Hong Kong in year 2007 would have a different perspective. The principle is clear: filing a case in Hong Kong for alleged defamation, the test is “what would ordinary people in Hong Kong now think of someone of whom this statement was made?” “Would Maria’s reputation be lowered in the eyes of right-thinking members of society in Hong Kong generally?”

The unusual views of a special group of people on certain characteristics and behaviour cannot be allowed to dictate whether a statement is defamatory or not, even with unfortunate consequences at times. The Bagong Bayani members, who all came from Philippines, naturally aware of the hidden meaning of the words “masahista and karaoke girl”, would think less of Maria. But most Hong Kong people would regard the jobs of “masahista and karaoke girl” as crucial to the business industries of physical well-being and entertainment. In the first instance, there is clear lowering of Maria’s reputation, there is none on the second.

Maria need not prove that the intention of Petra was to defame her. It is not Maria’s duty to prove that the statement was untrue. But if Petra can argue that the statement was in fact true and can prove on the balance of probability that Maria worked as “masahista and karaoke girl”, Maria should not sue.

Maria is better advised to sue for libel. Spoken word has restricted circulation than the written text, unless the spoken word was recorded and downloadable by all, given the modern methods of communication now available.

If Maria is successful in court, the main remedy the law provides is a sum of money in the form of damages. This is to compensate for the loss, to put the person in the same position as though she was never defamed. Impossible of course! The harm was done and value of reputation could be priceless. Nevertheless, monetary remedy is calculated by looking at how serious the allegation was, how widespread, the status of Maria, apology from Petra subsequent to the event, actual damage for loss of job of Maria could be added. Exemplary damages could be awarded to Maria, on top of the normal damages if Petra set out deliberately to make profit from the defamation. For example, the defamation was intended to be published in a Filipino newspaper and Petra sold the story for HK$ 1,000.

A word of caution for Maria, the court may sometimes feel that even though she won, the case has very little merit, wasted the court’s resources, then the court will award a very small sum of damages of HK$ 1.

Libel is a crime but slander is not. Libel must be a serious one, “sufficiently serious to merit the use of the criminal law”. This is to avoid the risk that people would be tempted to respond with violence. In Hong Kong, there have been very few cases.

My legal advice to Maria is not to proceed with any civil or criminal proceedings against Petra. There are better ways to solve their issues. First, both could speak to each other like mature people with the assistance of a 3^rd party and find the root of the problem. Second, Maria can ignore Petra and as most Pinoys would say, BAHALA NA ANG DIYOS NA MAGBIGAY NG TAMANG HUSTISYA.

My best advice to all: IWASAN ANG MAGTSISMIS!