THE PARADOX OF LIBEL IN FICTION: CAN FICTITIOUSNESS NEGATE DEFAMATION?  A PROPOSED VEIL OF FICTITIOUSNESS

“Suppose I now tell you that the preceding was a work of fiction and the "I" didn't refer to me, the author, but to a first person character. Or  suppose I tell you that it was not a work of fiction but a playful, and so of course serious, philosophical essay by me, Robert Nozick … How would your response to this whole work differ depending on which I say, supposing you were willing, as you won't be, simply to accept my statement?” – Robert Nozick, “Fiction”

 

Introduction

Fiction, as opposed to non-fiction, does not purport to put forth the bulk of propositions expressed as true, or at least as true beyond the fictional world.[1] Case law of libel in fiction however suggests that courts readily look into the fictional world constructed by authors and assess whether the fictional materials are falsely asserted to defame someone in the real world.

 

This essay looks into cases involving libel in fiction[2] in different common law jurisdictions.[3] It suggests that the failure to properly comprehend the nature of fiction underlies the inconsistency in the case law. Noting the inherent paradox in finding fiction defamatory and the plight faced by authors, it proposes a veil of fictitiousness with discussion of some suggested reforms. The final part would discusses how this may be applied to satirical fantasy, which is popular on the internet nowadays.

 

Analysis of the case law

The law of defamation seeks not to protect the character but the reputation of a person, as character concerns what a person truly is while reputation concerns what he seems to be.[4] According to the traditional understanding of the law of defamation, libel “almost exclusively involves statements which purport to be true but which the plaintiff claims are false and defamatory.”[5]

 

Of and concerning

It is essential for a plaintiff to prove that the words complained of are “of and concerning” himself, and the test is usually “whether the claimant may reasonably be understood to be referred to by the words.”[6] In Bindrim v Mitchell,[7] the contention that “the fact that the book was labeled as being a “novel” bars any claim that the writer or publisher could be found to have implied that the characters in the book were factual representations not of the fictional characters but of an actual nonfictional person” was rejected by the majority.[8] It is observed that the issue of whether the allegedly defamatory materials are written of and concerning the plaintiff “is likely to be central to any defamation case involving fiction.”[9]

 

At first glance, it may seem sensible to adopt this “reasonable reader” standard in assessing whether the “of and concerning” element has been satisfied. Looking into the cases, however, inconsistency and arbitrariness in applying this standard can be observed: some courts focus on the similarities between the characters in the fiction and the plaintiffs, while some courts focus on the dissimilarities. The logical consequence is courts would reach opposite decisions because of such a difference.

 

In Fetler v Houghton Mifflin Co.,[10] the court rejected that “many dissimilarities” between the plaintiff and the fictional character would “destroy any reference the less numerous similarities might create alone.”[11] Similar family compositions, ethnicities and personal histories outweighed other differences.

 

In Bindrim, the plaintiff was a licensed clinical psychologist who used the so-called nude marathon in group therapy. Defendant’s fictional character also practiced this therapy. Yet the plaintiff and the fictional character have considerable dissimilarities including the name and physical characteristics: the plaintiff was described by the court as clean shaven with short hair, while the fictional character was pictured in the novel as “a fat Santa Claus type with long white hair, white sideburns, a cherubic rosy face and rosy forearms.”[12] The plaintiff argued that the character was assaulting and disturbing patients in a vulgar manner during the encounter therapy. While the court was aware that the plaintiff had “no monopoly upon” this therapy, the majority was satisfied that as both practiced the same variety of therapy it was sufficient to persuade the court that the reasonable person would identify the fictional character as the plaintiff.[13] Also, it seems that the reasonable reader is one who personally know the plaintiff.[14]

 

In Wheeler v Dell Publichsing Co.,[15] the court recognized that the reasonable reader would more likely conclude that the author created the character in an ugly way so that none would identify her with the plaintiff. In Middlebrooks v Curtis Publishing Co.,[16] because of the obvious dissimilarity in age between the plaintiff and the fictional character, the court dismissed the libel claim.

 

Defamatory

It has to be shown that the fictitious parts in the fiction can be understood as defamatory. Inconsistency is found in the weighing of the nature of fiction in considering whether something is defamatory or is plainly implausible to occur and hence not defamatory.

 

In Binrdrim, it was for the jury to determine “whether a reader, identifying plaintiff with the “Dr. Herford” of the book, would regard the passages herein complained of as mere fictional embroidering or as reporting actual language and conduct.”[17]

 

In Sungravure Pty. Ltd. v Middle East Airlines Airliban S.A.L.[18], a fictional account of an airline whose plane was hijacked by terrorists was found to be defamatory. While the court was aware that the novel in question “was patently a work of fiction, of a light and romantic kind” and that the hijacking plot “appears to be equally fictitious,” the court rejected the submission that “no reasonable reader could understand the source of the novel as meaning that in real life potential air travellers by the respondent’s airline faced a serious threat of hijacking by Israelis.”[19] Because “works of fiction have often been founded upon fact and the hijacking of aircraft for racial reasons is unfortunately not uncommon,” and “readers … might reasonably have understood it to mean that,” it would be open to the jury of reasonable persons to decide: (1) whether the fictional account can be understood to bear the meaning of “potential air travellers by Arab aircraft to wit by plaintiff’s Middle East Airlines faced a serious risk of hijacking by Israelis with attendant dangers of death, grievous injury, suffering, inconvenience and loss;” and (2) whether it would “likely to injure the respondent’s trade.”[20]

 

In Li Yau-wai, Eric v Genesis Films Ltd.,[21] the plaintiff’s photograph was used in the film “Seven Angels” without consent, featuring as the deceased husband of the female sergeant in a scene that the son of the husband accuses him of acting irresponsibly because he does not return to visit his surviving wife in erotic dreams.[22] In fact, Rhind J recognized that, as established in Emerson v Grimsby Times[23], something would be held not to be defamatory because no right-thinking person will think any the worse of him, even if the material published of a person will expose him to light-hearted banter without the stage being reached where defamation becomes present. The judge is of the view that “whether the constellation of circumstances amounts to libel or not will depend on the view a right-thinking person would take of them.”[24] Placing emphasis on the nature of the film being “a bawdy comedy” in which s “much of the humour is very near the knuckle”, and it is rated as “not suitable for children”, showing the plaintiff’s photograph in the film is defamatory to the plaintiff.[25]

 

Sungravure and Li Yau-wai can be contrasted with Middlebrooks and Pring v Penthouse International Ltd..[26] In Middlebrooks, the court ruled in favour of the defendant partly on the basis of “common understanding of fiction as fiction only.”[27]

 

In Pring, the plaintiff sued the defendant’s adult magazine as she claimed that the depiction of the Miss Wyoming in an erotic fantasy was defamatory of her. The majority of the court recognized the central issue as whether the story could “reasonably be understood to describe actual facts about the plaintiff,” as the defendant argued that “the story [was] a spoof of the contest, ridicule, an attempt to be humorous, "black humor," a complete fantasy which could not be taken literally.”[28] Following Greenbelt Pub. Assn. v. Bresler[29] and Letter Carriers v. Austin[30], the majority was of the view that it may sometimes be unfair to take the literal meaning of the allegedly defamatory words. The court in Pring stated that the test was “whether the charged portions in context could be reasonably understood as describing actual facts about the plaintiff or actual events in which she participated.” And “if it could not be so understood, the charged portions could not be taken literally.”[31]

 

The majority in Pring found “it was readily apparent … that [the story] was all fanciful and did not purport to be a factual account,” and the witnesses summoned all admitted that story could not be about the plaintiff as she would not do that.[32] Because “the charged portions of the story described something physically impossible in an impossible setting,” and so “it is simply impossible to believe that a reader would not have understood that the charged portions were pure fantasy and nothing else.” “It is impossible to believe that anyone could understand that levitation could be accomplished by oral sex before a national television audience or anywhere else.”[33] Hence defamation could not be established.

 

Critique

Indeed, the inconsistency found in the cases discussed above can arguably be understood as a result of the courts’ unwise attempts to evaluate epistemologically the truthfulness of the fictional world. Courts fail to properly comprehend the nature of fiction and do not recognize how such nature could cause problems to the law of defamation.

 

The underlying problem of the courts trying to focus solely on the allegedly defamatory materials in fiction is the impossibility and impracticability of distinguishing facts from fiction in fiction. Is there any fiction that is completely fictional in the sense that no assertion of any facts can be found? Indeed, the similarities between the plaintiff and a fictional character identify the plaintiff, yet the dissimilarities and unflattering depictions are false and defamatory. It seems to suggest that fictitiousness is something quantifiable in the sense that, for example, when the similarity is 70%, the character is of and concerning the plaintiff. Simply focusing on either the similarities or the dissimilarities between the plaintiff and the fictional character, as well as focusing on the unflattering parts of the fictional character, the courts disregard the complexity of how characters are created in fiction.

 

It is important for fiction to create characters, and human characters have both good and bad characteristics. To create a compelling character, authors tend to mold various traits from more than one person.[34] While it is not necessary for the author to write about people around him, it is inevitable that the author creates the fictional world with inspiration from his surroundings, as “real life experiences are the sources of all artistic inspiration.”[35] When authors model their characters on people around them and further create extra characteristics in characterization, authors would possibly be in trouble if the extra characteristics are unflattering.

 

There is a general refusal of the courts to “grapple with the problem that arise when a work that makes no pretense to tell literal truth is nonetheless alleged to harm a plaintiff’s reputation.”[36] For example, the court in Bindrim oddly applied the Sullivan rule literally and “had no difficulty in finding actual malice simply form the author’s knowledge of the difference between the real events in question and her fictional account of those events.”[37] In Bindrim, because the plaintiff was a public figure, the court looked into whether the alleged defamatory statement claimed by the plaintiff was made with actual malice, applying the case of New York Times Co. v Sullivan,[38] that is, to focus on “defendants’ attitude toward the truth or falsity of the material published and reckless disregard of the truth or falsity cannot be fully encompassed by one infallible definition but its outer limits must be marked by a case-by-case adjudication.”

 

Interestingly, while the courts recognize the alleged defamatory materials are in fiction, the courts never reason why it would be simply followed that the “reasonable person” would find the fictional account defamatory. As shown in the contrasting cases of Li Yau-wai and Pring, it is hard to predict when something fanciful would be understood as pure fantasy and nothing more. In Li Yau-wai, it is plain that anyone of common sense would not, upon watching the film, think that the plaintiff in fact had married a policewoman and had deceased. Rhind J however did not go into detail of the “right-thinking person” when finding the manner in which the plaintiff’s photo was shown as defamatory. Instead, it seems to suggest that, in the same setting and plot, defamation may not be found in a Wong Kar-wai film, as he notes with emphasis the “nature of the film” that he classifies as a “bawdy comedy”.

 

Indeed, to assess whether a reasonable person would find the materials defamatory shows a disregard to the nature of fiction which is open for interpretation. Fiction is not truth-asserting, and one of its values lie in its invitation for people’s interpretation. Who can be the reasonable reader to decide whether one fictional character is of and concerning the plaintiff? How shall the reasonable reader reach his interpretation? When the test remains whether a reasonable person would regard the fictional accounts as defamatory, it would mean that as long as there is one way of interpreting the fiction as defamatory, libel could be established.

 

As fiction is fictitious, and it does not claim to be factually true, the readers, instead of taking the fiction seriously and believing in what it says, are to enjoy themselves in the fictional world constructed by fiction. As noted by the dissenting judgment of Files, P.J. in Bindrim, “when the publication purports to be fiction, it is absurd to infer malice because the fiction is false.”[39] To ask whether the writer realizes he is falsifying is to “pose a meaningless question,”[40] and somehow it resonates with the classic liar paradox in logic.[41] Thus the strict liability posed on the authors can never be justified.

 

The arbitrariness in how the courts decide which to be found as fiction causes considerable uncertainty in the law that renders the authors in a very difficult position to create. After the decision in Bindrim, it has been suggested that writers, when drawing from their own surroundings in creating fiction, should exercises “a little creativity” in changing some basic characteristics and events to avoid libel action.[42] It poses prior restraint to them when engaging in artistic creation and would result in self-censorship.[43] It should be noted that the chilling effects lie not only in the damages awarded in a libel case, but also in the threat to sue. It is observed that many cases involving libel in fiction are actually settled before they reach the courts.[44]

 

As Files, P.J. stated in his dissenting judgment in Bindrim, “the decision of the majority upholding a substantial award of damages against the author and publisher poses a grave threat to any future work of fiction which explores the effect of techniques claimed to have curative value.”[45] It should be reiterated that, fictional works are invention, and are recognized as “an emanation of the imagination, an artistic expression deriving from the complexity of thought, emotion, sensibility and experience that comprises an author’s conscious and unconscious mode of perception.”[46]

 

However, the current case law means that the author’s source of the fiction is vulnerable to allegations of libel.[47] Such vulnerability is exemplified in the lack of defence available for the author. No privilege is available for an author to claim. Because one cannot prove fictional statement as true, truth cannot be raised as a defence.[48] Fair comment cannot be pleaded because fiction in nature would be a reckless disregard of truth.[49]

 

The problem of this plight is acute when libel is also a criminal offence, especially for fiction where characters are identifiable people in real life. Under section 5 of the Defamation Ordinance[50] of Hong Kong, “any person who maliciously publishes any defamatory libel, knowing the same to be false, shall be liable to imprisonment for 2 years, and, in addition, to pay such fine as the court may award.” Under the current case law, this criminal offence can possibly be abused for arbitrary arrest of authors, who in era of totalitarian rule are often persecuted for putting forward “subversive” ideas in fiction.

 

As fiction is not so limited by the requirement of factual accuracy, it has always played the important role in providing people with insights[51] and enabling people to think out of the box. It is one source of creativity which is vital to the advancement of the society. Being an important form of the expression of ideas, fiction should be accorded with the recognition and the protection from the law, so as to guarantee free speech.[52]

 

The proposed veil of fictitiousness

The courts, when looking into defamation in fiction, do not recognize fiction as distinct from non-fiction and the inherently paradoxical relationship between fiction and defamation. The discrepancy in the case law suggests that the present libel law is inadequate when applied to fiction and there is a need to develop more meaningful standards for such cases.[53] Many commentators seem obsessed with heightening the threshold for identifying the fictional character as the plaintiff.[54] However, as discussed above, even if a very stringent rule is applied, it would still be attempting to differentiate fact assertion from fiction.

 

Noting the oddity in the cases in which the courts tried to look into assertion of “facts” in fiction, works of fiction must in all time be read as a whole. It is not desirable for the court to take out some parts of the fiction, interpret it as assertion of fact, and establish libel upon finding the falsity. Such a process is arbitrary in the sense that the judge can easily describe any “fictional” account of matters as untrue and find it defamatory, because the whole thing itself in nature is fiction.

 

While the individual’s right to reputation should be recognized, this essay firmly rejects the idea of the courts intruding arbitrarily into the fictional world. Thus it proposes that, before establishing libel in fiction, the burden shall rest upon the plaintiff to “pierce the fictional veil”. The plaintiff would have to prove that, notwithstanding the fictitiousness, no reasonable reader would believe that it is a work of fiction; otherwise it would be unactionable. It draws reference from the “fiction is fiction” standard which focuses of the perceptions of “rational readers” in University of Notre Dame Du Lac v Twentieth Century-Fox Film Corp.,[55] as well as the “reasonable understanding of the audience” after taking into account it is fiction in Middlebrooks. [56] Because fiction is open to interpretation, it is not enough for what a reasonable reader would think, but no reasonable reader would understand it as fiction despite the disclaimer. However, once the plaintiff has satisfied this heavy burden, the allegedly defamatory materials would be treated as assertion of facts in the usual standard, thus the paradox for libel in fiction would not exist.

 

To enjoy this protection of fictitiousness, the author has to make it clear at the outset that the work is fiction in the form of a disclaimer. When the fiction announces itself as factually untrue and communicates this to the readers, the readers neither take nor have any right to take its words as referring literally to the real world.[57] This is also to prevent people to avoid libel claims by later pretending that what they seemingly assert is fiction.

 

The suggestion that the court should take into account whether the author “has taken reasonable measures to ensure that readers do not interpret a work of fiction as stating actual facts”[58] should be lightly dismissed because, again, it shows disregard to the complex nature of fiction which invites interpretation.

 

In Middlebrooks, the court looks at how obvious works of fiction are understood as such by readers. It has been criticized that this would mean “the emphasis is clearly upon the work itself rather than upon the understanding of the readers” and this emphasis would be “uncertain”, in the sense that “it enables authors to escape liability merely by embellishing fact with fiction.”[59] Interestingly, when discussing a new standard for libel in fiction, many commentators are worried that people would use something that is “thinly disguised as fiction”[60] to defame others.[61] One even goes too far to propose the development a new and distinct tort to handle injuries caused by offensive fictional portrayals.[62] While at common law the defendant’s intent to refer the defamatory materials to the plaintiff is immaterial,[63] there is a suggestion to employ the classical malice in libel cases involving fiction, that is, looking at hatred, ill-will or spite.[64] It should be emphasized that in the work of fiction, the author’s intent is often overlooked, especially after Roland Barthes famously proclaims the “Death of the Author”. It is indeed not very meaningful to attempt to ascertain the author’s intent. Indeed, to suggest so seems to reveal an inaccurate understanding of the art of fiction. In the libel cases of fiction, the authors are found to be liable for defamation as the courts impute defamatory words in the narrative of the fiction. It is problematic to treat the narrative as the author.[65] It is not uncommon that fiction can be interpreted in the opposite as how the narrative puts the story, and there are completely different interpretations of the same piece of story, and some critics note that the unreliability of the narrative is the motif of the fiction. In those cases, how shall the author’s intent be imputed?

 

Nevertheless, one can be assured that the process of interpretation is open for readers to interpret, instead of to create. In cases where the self-claimed fiction is solely to defame someone, the plaintiff could pierce the veil of fictitiousness by establishing no reasonable reader would believe it is a work of fiction. Upon that, the plaintiff could easily establish libel by applying the common standard for defamation.

 

How the veil may be applied

Given the prevalence of online defamation in which online forums have been a “breeding ground” for libel,[66] it seems high time to revisit the question of libel in fiction in the context of online satirical fantasy which is potentially defamatory.

 

The story, loosely translated as “Urban myth: she smells like tear gas”[67] is intentionally selected as it presents the most problematic case of libel in fiction: it is based on someone who can be identified and without disguise, while the potentially defamatory content is plainly fictitious.[68] In brief, the story talks about a lady, who lives in the Government House in Hong Kong and is the daughter of an unpopular leader of Hong Kong, desperate to become a model, coerces a man who claims to be an owner of a model agency to have sex with her, in a tent during the Umbrella Movement.

 

While the lady is not named, with those details including that she is the daughter of the leader of Hong Kong and she lives in the Government House, and what she has said, there are overwhelming similarities between the lady and Ms. Leung Chai-yan, the daughter of the Hong Kong Chief Executive. Because of the lack of dissimilarity, it is fair to say that from the story it is plain that the lady is modeled on Ms. Leung, and hence of and concerning her.

 

The problem is, assuming the fictional account of Ms. Leung having sex with a man in the tent in an occupied street during the Umbrella Revolution is clearly fictitious, the depiction that she coerces someone else to have sex with her in exchange for the opportunity to become a model will likely be found defamatory under the current case law. Even taking the relatively lax approach in Pring, that is, to assess whether the matters can possibly happen in a possible context, as the act of having sex in a tent is not physically impossible, as distinguished from Pring, while rationally it is arguable that it is an impossible context for the daughter of the Chief Executive to go to the occupied areas under the Guy Fawkes mask and have sex with someone else, it is doubtful whether a reader would not have understood that the charged portions were pure fantasy and nothing else. Following the reasoning in the Hong Kong case Li Yau-wai, finding that this story is of the nature of a “bawdy comedy” with the use of vulgar language and explicit description of indecent behaviour, featuring Ms. Leung in this story would be defamatory.

 

It should be noted that, when facts are combined with fantasy, “the result is fiction, not factual reporting,” and it would be understood as such.[69] Even though this story may be reasonably described in the words used in Pring as “a gross, unpleasant, crude, distorted attempt to ridicule”,[70] it still presents the paradox of finding libel in fictitious materials. Applying the veil of fictitiousness, if one has to establish libel, it has to be proved that no reasonable reader would believe it is fiction. Depictions including the officials of Hong Kong government and the Chief Executive pretend to be protesters and sleep inside the tents during the Occupy Movement would be understood by reasonable readers (who have knowledge of Hong Kong politics) as fiction, and hence it would be hard to pierce the veil of fictitiousness. Thus, taking this story as a whole, libel would not be found in the fictitious account of acts.

 

In conclusion, finding libel in fiction is paradoxical and hence problematic. Courts should recognize the nature of fiction and fiction should be shielded from libel unless the plaintiff can show that the alleged material is not fiction.

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Footnnotes:

[1] Mitchell Green, "How and What We Can Learn from Fiction: Literature, Fiction, and Truth", A Companion to the Philosophy of Literature (Wiley-Blackwell, 2010), p 350.

 

[2] Fiction is loosely defined to include fictional works, e.g. novels, short stories, proses, satirical fantasy, films and TV drama, in this essay.

 

[3] It seems that under s 1(1) of the United Kingdom’s Defamation Act 2013, it would be much more difficult to establish libel in fiction as “a statement is not defamatory unless its publication has caused or is likely to caused serious harm to the reputation of the claimant.” If it can be argued that the reader would not take the fiction seriously, it can follow that no serious harm would be caused. Also, an author may rely on s 4 to argue that the publication of the fiction is of public interest, given the importance of to protect fiction writing as an important form of expression.

 

[4] Van Vechten Veeder, “The History and Theory of the Law of Defamation,” Columbia Law Review, Vol. 4, No. 1 (Jan., 1904), p 33.

 

[5] Jan Kipp Kreutzer. “Defamation: Problems with Applying Traditional Standards to Non-traditional Cases – Satire, Fiction and “Fictionalization”” 11 N. Ky. L. Rev. 131 1984.

 

[6] Patrick Milmo QC, W V H Rogers, Richard Parkes QC, Professor Clive Walker and Godwin Busuttil (eds), Gatley on Libel and Slander (10th edition) (United Kingdom: Sweet & Maxwell,, 2003), p 182-183.

 

[7] 92 Cal. App. 3d 61 (1979).

 

[8] Ibid.

 

[9] Daniel Smirlock “Clear and Convincing” Libel: Fiction and the Law of Defamation,” The Yale Law Journal, Vol. 92. No. 3 (Jan., 1983), p 521.

 

[10] 364 F. 2d 650 (2d Cir. 1966).

 

[11] Ibid.

 

[12] n 7 above.

 

[13] Ibid.

 

[14] See Wheeler v Dell Publishing Co., 300 F.2d 372 (7th Cir. 1962).

 

[15] 300 F.2d 372 (7th Cir. 1962).

 

[16] 413 F. 2d 141 (4th Cir. 1969).

 

[17] n 7 above.

 

[18]  (1975), 134 C.L.R. 1 (Aust. H.C.).

 

[19] Ibid.

 

[20] Ibid.

 

[21] [1987] HKLR 711.

 

[22] The decision is reached on two bases: breach of confidence and libel. This essay will only discuss the parts related to libel.

 

[23] (1926) 42 TLR 238.

 

[24] n 21 above.

 

[25] Ibid.

 

[26] 695 F.2d 438 (10th Cir. 1983).

 

[27] 413 F. 2d 141 (4th Cir. 1969).

 

[28] Ibid.

 

[29] 398 U.S. 6, 90 S. Ct. 1537, 26 L. Ed. 2d 6.

 

[30] 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745.

 

[31] n 26 above.

 

[32] Ibid.

 

[33] n 26 above.

 

[34] Matthew Savare, “Falsity, Fault, and Fiction: A New Standard for Defamation in Fiction,” 12 UCLA Ent. L. Rev. 129 2004-2005, p 133.

 

[35] Dan Rosen & Charles L. Babcock, “Of and Concerning Real People and Writers of Fiction,” 7 Hastings Comm. & Ent. LJ. 221 (1985).

 

[36] n 9 above, p 525.

 

[37] Ibid.

 

[38] 376 U.S. 254 (1964).

 

[39] n 7 above.

 

[40] Vivian Deborah Wilson, “The Law of Libel and the Art of Fiction,” Law and Contemporary Problems Vol. 44: No. 4, 28.

 

[41] The liar says he is lying or everything he says is false. But if he is lying, then he is telling the truth, that means he is lying.

 

[42] Stephen Louis, “Libel in Fiction: A Chilling Decision for Authors,” Art & The Law, Vol. VI: 1 [1980].

 

[43] Heidi Stam, “Defamation in Fiction: The Case for Absolute First Amendment Protection.” 29 Am. U. L. Rev. 571 1979-1980, p 582.

 

[44] n 34 above.

 

[45] 92 Cal. App. 3d 61 (1979)

 

[46] n 40 above, p 30.

 

[47] n 46 above, 31.

 

[48] Mark Arnot, “When is Fiction Just Fiction? Applying Heightened Threshold Tests to Defamation in Fiction,” 76 Fordham L. Rev. 1853 2007-2008, p 1859.

 

[49] See Bindrim v Mitchell.

 

[50] Cap 21.

 

[51] n 43 above, p 573.

 

[52] Ibid.

 

[53] n 9 above, p 525.

 

[54] See “COMMENT: Defamation by Fiction” 42 Md. L. Rev. 387 1983.

 

[55] 22 A.D.2d at 452, 256 N.Y.2d at 301.

 

[56] 413 F.2d at 141.

[57] n 9 above, p 531.

 

[58] Mark Arnot, “When is fiction just fiction? Applying heightened threshold tests to defamation in fiction,” 78 Fordham L. Rev. 1853 2007-2008, p 1856.

 

[59] Richard C. Giller, Esq., “Defamation in Fiction: The need for a clear “Of and Concerning” standard,” 3 Ent. & Sports L.J. 1 1986.

 

[60] n 40 above, p 44.

 

[61] n 54 above.

 

[62] Paul A. LeBel, “The Infliction of Harm Through the Publication of Fiction: Fashioning a Theory of Liability,” 51 Brooklyn L. Rev. 281 (1985).

 

[63] n 6 above, p 186.

 

[64] n 35 above, p 225.

 

[65] For example, Roland Barthes in “The Death of the Author” questions that “Who is speaking in this way? Is it the story’s hero, concerned to ignore the castrato concealed beneath the woman? Is it the man Balzac, endowed by his personal experience with a philosophy of Woman? Is it the author Balzac, professing certain “literary” ideas of feminity? Is it universal wisdom? Or romantic psychology? It will always be impossible to know, for the good reason that all writing is itself this special voice, consisting of several indiscernible voices, and that literature is precisely the invention of this voice, to which we cannot assign a specific origin: literature is that neuter, that composite, that oblique into which every subject escapes, the trap where all identity is lost, beginning with the very identity of the body that writes.”

 

[66] See Oriental Press Group Ltd & others v Fevaworks Solutions Ltd & Others [2013] HKCFA 47; Oriental Press Group v INMEDIAHK.NET Ltd. [2012] 2 HKLRD 1004.

 

[67] See Annex 1.

 

[68] It is assumed here that it has made itself clear that it is clearly fiction, given that it is published on the “story forum” on the Golden Forum of Hong Kong.

 

[69] n 43 above, p 581.

 

[70] n 26 above.

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Annex 1

“Urban myth: She smells like tear gas” by XXHaruki

 

Retrieved at http://forum1.hkgolden.com/view.aspx?type=SY&message=5657519&highlight_id=0&page=1&authorOnly=False.

 

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這句瞄上去有點莫名其妙和不合邏輯的短訊,Zachery每次收到時,總是不禁深呼吸一口氣,望著電話一瞬間黯然神傷。金鐘早已清場,夏愨道不留自己的足跡,但2014年11月那個初冬夜晚,他遇上那位難以置信的人,到了那個不可思議的角落,幹著那些荒唐無稽的事情,他沒法忘記。

 

「喂,Angie你有無姊妹同你一樣咁正先? 我間model公司好渴人,大把job!係唔夠女!」

 

每個週末Zachery都是蘭桂坊的常客,那個晚上也不例外,他在夜店內亮出一張Z Entertainment Group的公司卡片,坐在旁邊的Angie接過了卡片,眼睛掃了掃,她看到卡片寫有Zachery Lee的名字,Title 是 CEO,便兩眼發光甜笑道:「我一陣仲有friend會過嚟join我架,係咪真係有job介紹先?」「傻豬嚟o既,叫啲同事分配吓自然有job畀你地啦,我係老闆嘛!」「係咪真架?」Angie表情疑惑,卻難掩興奮心情,伸手繞著Zachery的手臂。

 

跟Zachery同行clubbing的,是位同性友人阿文,阿文似乎不滿Zachery得逞,見狀即忍不住反了一下白眼,因為他知道Zachery不是什麼老闆,Z Entertainment Group也只是間虛構的公司,Zachery當然不是CEO。

 

老蘭各大場閒閒地開一張枱都幾千,普通打工仔花錢落老蘭,當然想手到拿來,不花冤枉錢,而偽造身份就是Zachery的手段,每次夜蒲他都袋定幾張卡片傍身,這身份不難令發明星夢或想跟有錢人埋堆的女性主動上釣,他明知自己受到朋友的質疑或白眼,但他問心無愧。夜店內的女子,不是整容就是把幾個pad和nude bra在上衣內猛塞,如果那個場的女跳舞跳得狂野些少的話,大家不難在舞池踩到幾個跌出來的缽仔糕,這又何嘗不是欺詐的手段嗎?偽裝從來都是夜場內協助溝通的橋樑,老蘭不存在聖人,千萬別以為女人會愛上你的道德光環。

 

***

 

「嗱,嚟緊我地公司有份投資套電影,係套情慾驚慄片嚟, 演員好多都會係我地公司啲 artists, 其實卡士都定得七七八八,只係爭個又sexy又可以演繹得夠放o既新面孔...你有無興趣同我試試戲?」

 

飲了幾杯香檳,又再加幾shots Jager Bomb,Zachery意識開始變得輕浮,打算放肆地把手放在旁邊Angie的大腿上游掃,未出手,她卻突然站起來,原來Angie那個所謂的姊妹剛到,兩個高興得擁作一團。

 

「 呢個係我好姊妹嚟架,啱啱响英國返嚟放假,雖然好多人都識佢,但係唔好比佢身份呃到,佢其實好想入娛樂圈,好想做model !」 Angie向Zachery介紹她的好姊妹。昏暗的燈光下,Zachery隱約看到的是一個濃妝艷抹,五觀絕不標青的女生,一頭all back長髮再加白色low cut連身裙,只屬一般港女在老蘭狩獵洋腸的典型打扮,沒有什麼睇頭,識得扑一定扑Angie,呢條女可以留返畀阿文,Zachery心想。

 

本來只是感到單純的失望,但數秒過後,Zachery才意識到氣氛之詭異,他察覺到坐在一旁的阿文,眉頭皺成一圉,撞了邪般,目瞪口呆地盯著這位剛來的女生,Zachery不明所以,唯有再次向這位女生打量,今次在場內LED螢幕不斷閃動的燈影相互交錯下,Zachery終開始發覺她有種說不出的面善,他再看多幾眼,才發現她凶光畢露的陰鷙眼神,咄咄逼人的浮突顴骨,是極度的似曾相識,他又再想深一層,如果面前的女生真的是她的話,那未免太不可思議,無數市民在金鐘以一人一帳篷的姿態長期抗爭,高叫佢老豆下台的口號在這四五十日內幾乎片刻也未停頓過,她竟然斗膽在距離夏愨道十五分鐘步行路程的蘭桂坊夜蒲?

 

可是,心跳加速和手心冒汗的生理反應告訴Zachery,面前的景象是真實的,他不可能認錯人。

 

***

 

「聽Angie講你係開model agency,仲話嚟緊想搵好多model,所以我過嚟搵你...希望即刻有得casting。」每次女生主動提起自己的model公司,Zachery總是滔滔不絕口若懸河,吹得天花亂墜,但面對著她,這是頭一趟Zachery緊張得答非所問:「請問你阿爸係咪..」「唔洗理我阿爸, 我想入娛樂圈佢唔會反對我,佢話宗教界、體育界無經濟貢獻,無話過娛樂圈無貢獻。」

 

旁邊的Angie大力點頭,連忙和應:「係呀,入娛樂圈邊有問題jer,Zachery呀,你咪話想搵o個sexy D o既女仔o既, 佢都唔錯呀,,你睇吓佢條腰, 佢個籮柚幾正!」Angie邊說邊調皮地輕輕拍她姊妹的屁股兩下,本來這個玩笑沒有什麼特別,但驚魂未定的Zachery更加驚訝,原來佢老豆咁仆街都好,生個女出來還是有屎忽的,所謂的咀咒一點也不靈驗。

 

「係呢,Zachery,見你係model公司老闆, 我諗你睇人好準,你覺得我啱唔啱入行?」她突然向自己拋出這個直接的問題。「唔...其實做呢行最緊要出位,你言行咁調高調, 呢行真係幾啱你..」Zachery盯著她的連身裙和頸上的項鍊,似乎正如她所言,她一身配搭,都是用納稅人的錢來買,「我都知我夠出位架喇...哈哈」 她聽不出Zachery的諷刺沾沾自喜起來,笑完後又再自言自語:「出位就係出位! 但係我老豆最驚我上網亂咁講野呀, 你估網絡23條係用嚟管你地呀?錯喇! 係用嚟管我架! 」

 

在權貴面前,Zachery像是受到無形的壓力,只好機械式的陪笑,由於氣氛太不對勁,他打算借尿遁,擺脫這個奇怪的夜晚跟這些奇怪的人,當他一站起來,卻被她熱情地扯著手臂,「咦!咁快走? 又會同我casting o既?喂不如唔好飲野啦, 你同我出去行吓, 畀你睇吓我係幾咁啱撈娛樂圈啦!」Zachery很想推卻,但又不知如何開口,「嚟啦,你驚我帶你去禮賓府咩!」神推鬼㧬下,他最終沒有屙尿,而是被她強行拉走,Zachery無奈地向著沙發回眸,那裏只留下Angie和望著自己淫笑的阿文。

 

***

 

其實Zachery也不知道她想到那裏去,離開夜店後,就是跟著她從斜坡往下走,半夜兩點的中環,街頭處處依然熱鬧,腳步浮浮的Zachery走了不久便被她拉來到畢打街遮打道交界,走得氣也喘了起來:「唔洗咁急喎,可以再約第二日casting架喎...」「就今日啦,我想畀你睇吓我係幾有passion!」「乜你真係咁想入娛樂圈咩?」「唔係我想唔想入娛圈, 而係娛圈好需要我, 講真, 一定好多電視台爭住請我架喎, 邊個台請我, 邊個台就續到牌啦, 續唔續牌我老豆話事家嘛,Right?」她似乎說得不無道理。

 

「如果我老豆日日出現o向報紙A1, 我日日就o向C1, 係咪好Amazing, 係咪好entertaining先?」Zachery來不及反應,她還是眉飛色舞說過不停:「稱霸黑白兩道, 縱橫政界娛圈,有邊一家人可以咁勁?」大佬呀,你唔好咁癡線啦,Zachery無奈地低下頭,默不作聲,他開始後悔自己扮開model公司做假卡片的決定,平常扮有job介紹給女生,爆完房,電話關了,便一了百了,但面前這位瘋狂迷戀娛樂事業的女生,佢老豆要黑社會有黑社會,要警察有警察,又怎可得罪?他似乎不可能對她敷衍了事,更不可能告訴她那間model公司根本不存在。

 

***

 

「 喂, 再向前行就係金鐘喇, o個度大把人認得你,你唔怕咩?不如走啦! 」Zachery建議她及早離開,奢望她放過自己一馬,但她彷彿早有準備,突然從她的粉紅色手袋中,取出一個「V煞」面具,純熟地把橡根拉鬆,綁在面上,「我成日都咁樣落嚟架啦,唔怕喎, 仲好刺激!」

 

「你老豆畀你咁樣落嚟咩?」 Zachery驚訝得瞪大雙眼。

 

「畀呀, 點解唔畀? 一家五口一齊落嚟都試過! 我老豆都唔知玩得幾開心, 一路帶住個面具, 一路同D市民一齊叫我要真普通,一路叫一路忍唔住冷笑.... 最開心係有一次, 見到有堆人無撚端端引領成個場o既一齊小組討論, 佢笑到收唔到聲呀哈哈哈。」她笑完後, 突然頓了頓, 一臉感觸地說:「不過有時佢都好感性, 有次落嚟, 佢眼濕濕話原來十幾年都未試過一家人齊齊整整咁一齊去嘉年華會玩。 」

 

說著說著,二人已差不多走到上夏愨道天橋,視線範圍內已是越來越多的帳篷和佔領者,石壆欄杆貼滿標語橫額甚至乎有佢老豆張相, 她看著自己老豆被惡搞的海報, 有感而發:「我老豆成人畀人鬧,我諗佢都唔想,佢背後o個班智囊無乜用,剩係識陰佢,我老豆平時叫佢地做陰囊。」

 

***

 

「點呀?你其實想去邊呀? 」漫步在天橋上的他有點不耐煩,「到喇, 就係呢個帳篷! 入嚟啦, 無人架...」Zachery被她拉停在一個帳篷前,本身Zachery對於孤男寡女共處一個帳篷這件事好應該有所戒備,但由於事情太過出奇,他卻放下了警覺性,「你同你老豆連帳篷都扲埋嚟?」「早幾日落雨我地個帳篷濕晒我地掉咗啦, 呢個帳篷係林鄭上次用完架。」

 

Zachery彎下腰,跟她鑽進帳篷裏去,夏愨道暈黃的街燈,斜斜的披灑在帳篷上,燈光柔柔的穿過帆布,人影昏暗,但Zachery看得出她在帳篷內已脫去面罩,而且面對面凝視著自己,目不轉睛。

 

「一個唔應該出現o既人,出現o向唔應該出現o既地方,做唔應該做o既事,你唔覺得我好dramatic好sexy架咩?我好豁得出去!呢個就係我o既passion!」Zachery尷尬的支吾以對:「係好dramatic...咁你的確又唔應該嚟示威o既...」

 

「我唔係講緊示威...我講緊係响呢個camp裏面, 我準備同你做o既事...」

 

***

 

語畢,她竟迅速地把連身裙向上掀,把之脫掉,扔在一邊,然後捉實Zachery的手掌,大力伸向自己的胸部,「畀你驗吓我個胸, 貨真假實, 我屋企有僭建, 但係我無! 」「唔好咁啦, 我無話要驗胸呀...」Zachery想把手縮回,但卻被她牢牢的捉實,手指完全陷入她胸部的脂肪中,「入娛樂圈o既潛規則我明喎,唔緊要喎, 揸我啦!揸我啦!」

 

Zachery勉強地揸了幾吓,可是這不足以滿足到她,她突然向著自己爬過來,把自己壓在地上,她的軀體幾乎沒有一吋不緊緊貼合著Zachery,女人向自己主動獻身,Zachery當然有經驗,但在這種不情願的狼狽情況下進行,這還是頭一次。

 

事情已經覆水難收,無法阻止,Zachery可以做的,就是樂觀一點看,豬肉都係肉,好過去自瀆,臭西都係西,朦眼執返劑。金鐘夏慤道天橋是香港首條高架行車天橋,或許他也可以成為香港首個在行車天橋上做愛的人。

 

Zachery知道,有一部份人想常說要以愛與和平佔領中環,他們口中所謂的愛得個講字,只有Zachery一個身體力行,在這裡做起愛來。可惜事情沒有那簡單,他低估了面前的困局,她的臉頰幾乎近緊貼著Zachery,距離他的雙眼不足十公分,電光火石之間,她已捉緊Zachery的雙臂,狠狠地熱情的吻下來,他用力合起雙眼,把嘴閉緊,無助的掙扎著。

 

他掙扎,是因為在極近距離之下,在微弱燈光之中,Zachery看到的不是她,而是他的父親。在朦朦朧朧的環境中,他們的輪廓,極度相似,這舉動,像跟他父親熱情激吻著無異。

 

「唔好咁啦...」 他幾乎難以喘息,只好繼續勉強地反抗著,Zachery以為成功把她的臉頰撥開,原來她只是把頭移得更低,她熟練地剝開了Zachery胸前的兩粒恤衫紐扣,然後激動地伸出舌頭,猛力的在Zachery胸膛上轉動,她舌尖的位置,不偏不倚,不左不右,只在兩塊胸肌之間的位置游走,她似乎跟他老豆一樣,最喜歡中央。

 

***

 

Zachery故著牢牢閉緊雙眼,不敢留意過程,只祈求這晚的惡夢快些完結。突然,他感受不到她濕漉漉的舌頭,帳篷好像回復了片刻寧靜,他偷偷瞪開半隻眼竊看時,卻赫然發覺她已脫光內衣。

 

她的腰雖幼,但不知是否缺乏運動的關係,上身卻露出下垂而且呈八字形的胸部,他眼白白看著她主動地把自己的身軀整個擰轉,準備做著類似掌手壓的姿勢,不同的是,做掌手壓時的雙腿是合實,她的大腿微曲而且分得很開,更不斷往後退。結果,她的私處向著Zachery的面部步步進逼,帳篷內的六九姿勢已成一個定局。最恐怖的是,六和九中間,夾著一對八字波,當Zachery把這三個敏感數字串連起來時,Zachery又想佢老豆。

 

「唔好呀...呀...」Zachery就這樣被她的私處鎮壓著,他沒有伸出舌頭,甚至不敢用力嗅,不知是否心理作用,但他好像感受到周遭的空氣瀰漫著一種刺激的酸味,嗅了幾回,連眼睛幾乎也有灼痛感,這種類似在自己眼球前面切洋蔥的體驗,令他連忙摀住了嘴和鼻,畢竟他還是需要呼吸的,他依然稍微吸收了徘徊在帳篷內的空氣。此刻,他很想瘋狂咳嗽和哭喊,臭西他聞過,但這樣的臭西,可謂聞所未聞。

 

九二八Zachery不在這裡,但如果要形容這種有力驅散人群的味道的話,他一定會說這是催淚彈味,催淚彈味的臭西,可能只有佢老豆才有能力繁殖出來。

 

***

 

帳篷的這一邊很沉默,但帳篷的另一端卻很熱鬧,Zachery的褲頭,已經被她鬆開了,她毫無顧忌地,用盡力向著Zachery吸吮起來,這一刻,他不陶醉,也不享受,因為Zachery的腦海中,只有他父親的影像,面對著這種近似雞姦的感覺,他不能再保持沉默,他決定大聲喊叫來發洩一場,又或者吶喊一聲來制止她。

 

至於叫什麼,他卻拿不定主意,他雖還有點酒醉,但他是理智和清醒的,若叫得太大聲太慘烈,附近帳篷的留守者,會以為他被施襲,就算他真的是被施襲或被強姦都好,這個年頭,報警也會變成被告,所以慘叫是最不智。

 

但如果叫得太過舒爽,她肯定會繼續下去,永無休止,而旁人聽到聲音,也會知道這個帳篷正在發生什麼一回事。被勇武派發現還好,但若被左膠發現,Zachery肯定會被他們圍著指罵,說自己捉著人家的女兒來屌,不夠冷靜和克制,「邊個响度屌西就係鬼!」,屆時整條夏慤村也會知道自己在幹著恥辱的事。

 

那麼在這個佔領地,叫什麼最合理? 當然是「我要真普選」,這句口號無論你在這裡怎樣大叫,也不會有人制止,也不會受到注目,是很平常的一回事,這個念頭在Zachery的腦海中一閃而過後,他急不及待,本能反應地在帳篷內不斷著怒吼,張開口,對著她的臭西,狂叫著「我要真普選」。

 

「我要真普選!」「我要真普選!」「我要真普選!」

 

***

 

Zachery宣洩著心中的不快,但她卻是無動於衷。沒有停止下來,Zachery還是被蹂躪著,他不斷的喊叫,其他留守在夏愨道的佔領者,很多都未睡,竟也和應起來。

 

「我要真普選!」「我要真普選!」「我要真普選!」

 

外面的聲音此起彼落,彷彿整個金鐘也為帳篷內的自己打氣,他也越叫越激動,開始感觸起來,他的呼喊,就像大家的民主訴求一樣,不斷被無視,被欺壓,被強姦,「我要真普選...」「我要...真普選...」,他竟開始邊叫邊流起涕來。

 

那個早上,他獨自在帳篷醒來,他擦擦眼睛,似乎已想不起自己如何完事、如何睡著,只能穩約回憶起她穿起裙子,帶起「V煞」面具離開時的背影,他安慰自己,那只不過是一場惡夢而已,然後彎下腰,鑽出帳篷。熠熠的朝陽原來已經照亮了整條夏愨道,他突然想起張曉明說過的一句明言──「太陽照常升起」,沒錯,太陽的確照常升起,但這不代表Zachery的生活如常。

 

此後每隔一兩星期,Zachery都會接到她的來電。「考慮成點jer…部戲卡士唔會無我份掛...」他每次就只能像這樣吞吞吐吐支吾以對:「電影公司o個邊仲度緊期...有消息會通知你...」對於她來說,每次得到都只是失望的答案,但為了她最執著的娛樂事業,她還是鍥而不捨地討好Zachery,「我要真普選」也成為了她的性暗示,她喜歡以近乎發情的聲線問:「咁樣呀...你今晚...要唔要真普選?Your Place?My Place?」

 

2015年了,夏愨道全部行車線早已通車,天橋沒有人,沒有帳篷,幾乎沒有雨傘革命的痕跡,只剩下車水馬龍的場景。可是,那一個夜,那一個人,對於Zachery來說,還未成為過去式,閉上雙眼,腦海就會浮現不會磨滅的片段,盡力不去想,鼻子彷彿又會聞到那種永不消逝的氣味,和她有傘有聚? Zachery覺得,不必了。

 

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