The Turtle Jelly Saga: Can A Whistle-Blower Be Held Liable For Publication of Libel News Coverage?

04 October 2021

After an entangled lawsuit spanning 8 years, the High Court of Hong Kong on 27 September 2021 gave judgment in Hoi Tin Tong v. Choy Kwok Keung [2021] HKCFI 2888, dismissing a libel and conspiracy claim to injure the reputation of the well-known herbal products chain – Hoi Tin Tong – in the amount of over HK$131 million.

In September 2013, damning news reports and videos published by the then Apple Daily newspaper showing a Hoi Tin Tong’s shop-keeper washing mould off turtle jelly (龜苓膏) went viral. Hoi Tin Tong then commenced the claim against a former shareholder in the chain’s PRC outlets for libel, malicious falsehood and conspiracy (i.e. colluding with the Apple Daily reporter and the shop-keeper) in staging the demonstrations to be video-recorded.

After a 11-day trial, the Court held that the defence of justification was made out - Hoi Tin Tong had instructed, encouraged or condoned its staff to adopt the malpractices of cleaning and processing mouldy turtle jellies and transferring the same from plastic to pottery cups before serving customers.

Whilst the ruling on justification would have disposed of the claim, the Judgment also shed light on the important question of whether a mere whistle-blower would be ultimately responsible for the contents of a report of a piece of investigative journalism made based on the information provided by him– the first time that a Hong Kong court is asked to rule on the same.

Applying the Australian decisions of Dank v. Whittaker (No. 1) [1] and Thiess v. TCN Channel Nine Pty, Lok J held that to hold the Defendant liable for the contents in the publication of the videos and the newspaper articles, it is not sufficient that the Defendant had provided materials proactively to the press which had contributed (even substantially) to the publication of the videos or news articles.

Lok J concluded that to hold the Defendant liable for the defamatory statements made in the videos and articles as the original publications and not republications, the Plaintiff must establish that either (1) the Defendant had control over the publication of process or (2) he had assented to the final form of the publication; or (3) the press was the agent of the Defendant in publishing the defamatory statements.

On the facts of this case, Lok J held that:-

The Defendant should not be liable for the publication of the defamatory statements in the video and a newspaper articles published by Apple Daily. The same were published by the reporter and Apple Daily as a result of the journalistic investigation carried out by them with the Defendant merely supplying the materials for investigation and arranging the reporter to visit the shop for the demonstrations having no control as to how the story was to be reported.

However, the press can be considered as agents of the Defendant in publishing the statements made by him in the press conference. The maker of any statements in a press conference knows that their statements would be reported in the press. The Defendant should be held responsible for the publication in the newspaper articles provided that they accurately contained the statements made by him in the press conference.

Although the above discussions in this Judgment are obiter only, this case nevertheless highlights the complications that may arise from different formulations of a defamation claim depending on which are the original publications to be used. They have provided a welcoming reminder on the issues that claimants should focus on when formulating their claims in this modern world where information passes through the social media without borders.

It remains to be seen whether the Hong Kong Court may in another case take the above discussions further.

Connie Lee (led by Mr. Paul Lam S.C) appeared for the Defendant.

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