10 April 2012
Following the recent Court of Appeal decision in Oriental Press Group Limited v. Fevaworks Solutions Limited, the Hong Kong court found another host of an Internet forum to be liable for defamatory statements posted by anonymous users. The court also discussed the value of an online disclaimer and what personal information the host is obliged to disclose about the users.
In the Fevaworks case, the Hong Kong courts confirmed that operators of online forums are generally regarded as "subordinate distributors" of defamatory postings who may plead the defence of innocent dissemination. For our commentaries on that case, please refer to our previous publications: "The Writing is on the Forum - Defamation on the Internet" and "No strict liability on forum hosts for defamatory postings".
The present case Oriental Press Group Limited v. Inmediahk.net Limited was brought by the same plaintiff in the Fevaworks case against the host of another local Internet forum. The plaintiff complained that two anonymous postings on the forum were defamatory.
The defendant filed a defence at the early stages but failed to adduce evidence and did not attend the trial.
The court found for the plaintiff, but the plaintiff did not get everything it asked for. We set out below a few noteworthy observations made by the court.
Forum hosts are not primary publishers:
The court found that there was no evidence to show the host's ability to vet the contents of every third party posting. There could well be technical and practical restraints. In the absence of evidence, the court could not assume that the defendant could put in place a system to screen out potentially defamatory materials, which would require the exercise of judgment and a certain degree of legal knowledge.
The court found that the defendant did not voluntarily assume liability for the defamatory contents. The defendant's website has a disclaimer seeking to disclaim liability for third party postings. While the court did not rule on whether the disclaimer was legally effective, the court considered that the disclaimer mitigated against any inference that the host was prepared to accept responsibility for users' postings.
Damages and aggravated damages:
The court found the defendant liable as a subordinate distributor for failing to remove the defamatory words within a reasonable time upon actual notice. The court awarded general damages of HK$100,000. No aggravated damages were awarded. The court opined that the function of aggravated damages was to compensate for the additional injury to feelings caused by the defendant's conduct. There were contrasting views as to whether aggravated damages would be available to a corporate plaintiff at all. On the facts, the court was not persuaded.
The court accepted the plaintiff's application to compel the host to disclose information about the users. However, the court disagreed that the order should cover the users' Hong Kong identity card numbers and mobile phone numbers. The defendant probably did not possess such information, and the court failed to see why the plaintiff required such highly intrusive information for any future legal action - disclosure of such information might even fall foul of the Personal Data (Privacy) Ordinance.
The court described the discovery order as Norwich Pharmacal relief but ordered the defendant to bear the costs of disclosure (a departure from the normal Norwich Pharmacal costs order, on the basis that the defendant was not innocent). It is however not clear why this was not granted as a normal discovery order against a tortious defendant in the first place.
For inquiries related to this Legal Update, please contact Kenny Wong, Eugene Low, or your usual contacts with our firm.
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