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Hong Kong – First Court of Appeal Cyber-libel decision

Gabriela Kennedy

16 November 2012
As in many other jurisdictions, the dictum "what is defamatory off-line is defamatory on-line" applies in Hong Kong too.

Publication of defamatory material over the Internet has been claimed in a number of cases since the 1990s in Hong Kong but in a recent case the Court of Appeal examined in detail the liability of Internet forum hosts for defamatory material posted on their sites.

Hong Kong has had a number of cyber-libel cases such as Asia On-Line Limited and Asia Communications Global Limted and anor v. Chris So filed in 1996, or Investasia Ltd & Anor v Kodansha Co Ltd & Anor filed in 1997. The first case involved the posting of a defamatory statement regarding the plaintiff's financial affairs on a public bulletin board maintained by one of Hong Kong's ISPs, Hong Kong SuperNet. Although the case did not go to trial (no defence was filed and judgment in default was obtained by the plaintiffs) the interesting point about the case was that the writ was served care of the ISP, though the ISP was not joined as a party up in Hong Kong.

Investasia v Kodansha involved a libellous article published in a magazine distributed in Hong Kong but also published over the Internet. The plaintiffs claim was inter alia that the offending article was posted on the Internet and made available to Internet users in Hong Kong. The defendants applied to have the action struck off claiming forum non conveniens as no connection with Hong Kong had been established by the plaintiffs. This application failed and in the event the plaintiffs obtained judgment by default – thus no decision on the real interesting issue involving liability for on-line postings was made.

In the recent Court of Appeal decision of Oriental Press Group Ltd v Fevaworks Solutions Limited [2012] 1 HKLRD 848, the liability of Internet forum hosts was at last examined in detail.

First Instance Decision

The defendants operated an internet forum in Hong Kong called "HKGolden" (the "Forum"). On March 2007, October 2008 and January 2009, a series of defamatory statements concerning the involvement of the Plaintiffs in criminal activities (the "Posts") were posted on the Forum by several of its registered members. The Plaintiffs sued the Defendants alleging that they should be held liable for publishing the Posts on the Forum.

At first instance, the court had to consider three main issues:

(i) whether the words complained of were defamatory and/or defamatory of the plaintiffs;

(ii) whether the defendants were the publishers of those words;

(iii) whether the defence of innocent dissemination was available to the defendants

As regards the first issue, while the defendants did not admit the words were defamatory, they provided no reasons in support. The court therefore found that the Posts were defamatory of the plaintiffs.

As far as the second issue was concerned, the court was asked to consider whether the defendants were primary publishers or subordinate distributors. In Hong Kong, the law of defamation is governed by common law as modified by the provisions of the Defamation Ordinance. While strict liability applies to publishers as a matter of common law, this is qualified by special rules for distributors, who can escape liability by demonstrating lack of knowledge of the defamatory nature of the publication and the exercise of reasonable care. The common law also recognises that persons may be involved simply as mere conduits that do nothing more than fulfil the role of a passive medium of communication.

The plaintiffs relied on the English case of Godfrey v Demon Internet Ltd [2001] QB 201; as well as the Australian case of Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 to argue that the defendants should be regarded as primary publishers. In the former case an Internet service provider was held liable for the publication of defamatory material while in the latter case, the defendants were a television station that re-transmitted a live current affairs programme. The defendants were found liable as primary publishers (though some of the members of the court took the issue of control into account).

The defendants relied on the English decision of Bunt v Tilley [2007] WLR 1243. The court was reluctant to reach a sweeping conclusion that all internet service providers should be regarded as primary publishers, irrespective of whether the statements in question originated from them as this would be a rigid and unnecessary conclusion to reach. The court was more inclined to go with the approach in Bunt and look at all evidence to establish whether there has been a publication and take into account all circumstances including the defendant's knowledge. The court also took into account the fact that whether a website host is found not to be a publisher but merely a subordinate distributor does not absolve them from liability. In order to do so they would still have to establish the defence of innocent dissemination. The fact that the defendants were unaware of the Posts until they were brought to their attention by the plaintiffs was also taken into account by the court in finding them to be subordinate distributors.

The court then had to look at whether the defendants had established the defence of innocent dissemination. The plaintiffs advanced a number of criticisms against the defendants' operations thus seeking to cast doubt on whether the defence should be available to them, including the fact that the defendants knew that their discussion forum was of a character likely to contain libel and the fact that they only had minimal or passive monitoring of the messages on their forum. Neither argument persuaded the court – there was not sufficient evidence to prove the first criticism and as far as the second was concerned, the court held that to impose a duty on the part of internet discussion forum hosts to monitor the forum messages would render the defence of innocent dissemination otiose or difficult to establish.

Looking at the way the defendants acted upon receipt of requests from the plaintiffs to remove the Posts, the court found that the defendants removed the October 2008 and January 2009 posts within a week of receiving notification from the plaintiffs and that therefore they were not negligent and thus able to establish the defence of innocent dissemination.

However, in respect of the March 2007 posts, they were only removed 8 months after the plaintiffs had sent notification to the defendants. The Court found that there had been undue delay on the defendants' part in removing the post (even though the plaintiffs only sent in the request some 21 months after the publication of these posts) and that therefore they failed to establish the defence of innocent dissemination. The Plaintiffs were awarded damages of HK$100,000 (approx.US$ 13,000) for the March 2007 posts.

The Appeal

The plaintiffs appealed arguing that (i) the defendants should be liable as primary publishers; (ii) as a matter of law, the defendants liability in tort for defamation should not be subject to the innocent dissemination defence (iii) even if that defence were available it was not made out in respect of the October 2008 and January 2009 posts and (iv) the amount of damages awarded should be higher.

In a unanimous decision the Court of Appeal dismissed the plaintiff's appeal. The most interesting points made by the court relate to the first and second heads of the appeal. These are discussed below.

The court had no difficulty in concluding that the defendants should not be regarded as primary publishers of the Posts but were instead subordinate distributors. The evidence submitted showed the position of the defendants as website hosts to be different to that of television broadcasters (as in the case of Thompson v Australian Capital Television Pty Ltd). The evidence showed that at any given time there might be 30,000 users of the defendants website online and over 5,000 posts per hour. The court concluded that the evidence showed that it would have been wholly disproportionate to expect the defendants to vet all postings to the forum. The court felt that a more appropriate approach would be to impose legal liability on the basis of acquiescence and attach liability to an Internet website forum only once they have received notification of the defamatory material and failed to remove it within a reasonable time upon receipt of a request to do so.

While the court concluded that the defendants were not primary publishers but were subordinate distributors, it was also quick to point out that this conclusion should not be held to apply to all website hosts in the future and that the particular facts of each case would need to be taken into consideration. There may indeed be circumstances where a website host could be held to be a primary publisher if, for example, it could be shown that the website had knowingly participated in the publication (eg if they invite comments on a particular topic or person).

On the question of the availability of the innocent dissemination defence to the defendants, the court had to consider whether s.25 of the Defamation Ordinance precludes the application of the common law defence of innocent dissemination. This section offers a statutory defence in Hong Kong for a person who publishes defamatory material innocently. The defence does not apply unless an offer of amends has been made and has not been withdrawn. The defendants had made no such offer of amends and did not rely on the statutory defence. The plaintiffs argued on appeal that the defence of innocent dissemination as a matter of common law in Hong Kong, had been superseded by the statutory defence. The court found that the enactment of s.25 of the Defamation Ordinance did not abolish the common law defence of innocent dissemination and that as a matter of statutory construction, the legislature should not be taken as effecting a fundamental alteration to the general law except by express statutory wording.

The case is important as it is the first piece of jurisprudence in Hong Kong on the liability of Internet intermediaries and website hosts. It offers some guidance to ISPs and other Internet intermediaries on how they should deal with requests to take down defamatory material and how the court will determine their liability.

The court of first instance decision can be found here and the Court of Appeal decision can be found here.

Gabriela Kennedy

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