10 July 2013
Hong Kong's highest court upheld that operators of a popular online forum are not primary publishers of defamatory postings, and can rely on the defence of innocent dissemination.
The plaintiffs in Oriental Press Group Limited v. Fevaworks Solutions Limited appealed all the way to the Court of Final Appeal of Hong Kong. In the lower courts, the defendant operators of a popular online forum (forum.hkgolden.com) were found liable and ordered to pay HK$100,000 for failing to promptly remove a defamatory posting on one occasion. They were held not liable in two other instances where they removed similar postings within a day.
The previous judgments were summarised in our legal updates "No strict liability on forum hosts for defamatory postings" and "The Writing is on the Forum - Defamation on the Internet".
Verdict of the Court of Final Appeal
The Court of Final Appeal dismissed the appeal and refused to find the defendants liable for the two other incidents. In doing so, the Court clarified a number of points in this area of law:
Role of the defendant operators
The Court held (disagreeing with the Court of Appeal) that the defendant operators are not like occupiers in the notice board and graffiti cases (who are typically not in the business of publishing or facilitating publication at all). Nor should the defendant operators be regarded "passive facilitators" comparable to post offices or telephone companies. Instead, the defendants play an active role in encouraging the multitude of postings on the forum and are plainly participants in the publication.
However, the Court decided that the defendants are "subordinate publishers" who can plead the defence of innocent dissemination. The defendants were not aware of the contents of the postings (the knowledge criterion) and realistically did not have the ability or opportunity to prevent their dissemination (the control criterion).
The defence of innocent dissemination requires the defendants to prove that they did not know and would not, with the exercise of reasonable care, have known that the posting contained defamatory content. The standard of reasonable care varies according to the circumstances, e.g., whether it is a specific blog or forum focusing on a particular topic (especially one which invites or will likely attract negative comments) or a general forum (like the defendants' forum) involving many different discussion threads. The Court considered that given the large volume of traffic on the forum, the defendants had no realistic means of acquiring such knowledge or exercising screening. The defendants made good the defence by removing the contents within a reasonable time (within a day) after becoming aware of their existence.
Freedom of speech
The Court recognised the value of free and open communications (many-to-many) on discussion forums. The imposition of unrealistic or overly strict standards would introduce a chilling effect discouraging free and open exchanges. A balance has to be struck – while an Internet intermediary may not always be expected to police or filter each and every posting, they should take prompt action to take down offending postings upon knowledge.
It should be noted that these cases are fact-sensitive and depend very much on the circumstances. For example, the situation might be different for a host who solicits defamatory comments on a particular person or one who actively polices and edits the contents of its forum. Mr. Justice Litton, delivering a concurring judgment of the Court, reminded that this case comes within a narrow compass confined to two particular sets of statements. Indeed Mr. Justice Litton also raised a question as to whether the defendants could do more for deliberate targets of defamatory statements.