The Court of First Instance in Oriental Press Group Ltd v Inmediahk.net Ltd held that although in general a website host’s liability for the publication of a third party’s defamatory postings was in the nature of “subordinate distributors”, there could still be circumstances that it would be liable as “primary publisher” of the postings.   

Primary Publisher vs. Subordinate Distributor

At common law, any person who publishes defamatory material may be held liable as the “primary publisher” if that person intends to publish the material or fails to take reasonable care to prevent such publication (strict liability subject to limited defences such as justification or fair comment). In addition, liability may also arise when a person secures, authorizes or participates in the publication of any defamatory materials. Where a person has only taken a subordinate role in disseminating defamatory materials, such wrongdoer would be regarded as the “subordinate distributor”.

The law draws a distinction between “primary publishers” and “subordinate distributors” such that any innocent distributors who have only taken a subordinate part in disseminating defamatory materials might escape liability by showing that (i) firstly, they have no knowledge that the publication contains the defamatory material being complained of and, (ii) secondly, the dissemination is not due to any negligence on their part. This defence is commonly known as the defence of “innocent dissemination” and the alleged distributors bear the burden of proving these 2 elements which are necessary to establish the above defence.

Fact of the Case

In Oriental Press Group Ltd v Inmediahk.net Ltd, Oriental Press Group (“Oriental”) was the publisher of Chinese language newspapers in Hong Kong while Inmediahk.net Ltd (“Inmediahk”) was the host of the website http://inmediahk.net (“the Website”). In October 2007 and January 2009, two articles (“the Articles”) containing some alleged defamatory statements were posted on the Website against Oriental. In response to these Articles, Oriental sent a demand letter in August 2010 to Inmediahk alerting it the defamatory nature of the Articles and requested Inmediahk to remove them from the Website. However, no action had ever been taken by Inmediahk. Subsequently, Oriental commenced defamation proceedings against Inmediahk.

At trial, the Court took the view that the Articles were defamatory of Oriental. The key issue was whether Inmediahk should be liable as the “primary publisher” or the “subordinate distributor”.

General principles of liability of Internet discussion forum hosts

In discussing the liability of internet discussion forum hosts, the Court has laid down the following principles:-

1. For any person to be held responsible for publishing defamatory materials, he/she must be “knowingly involved” in the process. To decide whether the host of the internet forum knowingly got involved in the publication of defamatory materials, the question to be asked is whether it can be inferred that the website host “voluntarily accepts the responsibility” for the published materials. In particular, the Court held that for a website host to become liable as the primary publisher of postings on its website, there must be some circumstances such that the host can be regarded as having accepted the responsibility for the content of the website (for instance, by inviting defamatory comments on a particular person).

2. Hosts of internet discussion forums are of different position as the broadcaster of a live television programme. The imposition of legal responsibility as a “primary publisher” might well cause many website hosts to cease hosting their websites. The technical feasibility to remove postings at the very instant whenever any material is posted should not be sufficient to give rise to a voluntary assumption of liability for the content of any messages posted.

3. For the liability of “subordinate distributor”, the practical approach to impose legal responsibility would be on the basis of “acquiescence” (i.e. the liability for defamatory materials would attach to the host of a website forum only when the website forum host had been notified of the existence of the material/be requested to remove it, but it had failed to do so within the reasonable time).

Inmediahk’s liability for the publication of the defamatory postings

In this case, the Court held that the mere fact that Inmediahk had allowed third party’s postings on the Website was not sufficient to give rise to the primary publication for such postings. It is because for the doctrine of primary publication to operate, there must exist the voluntary assumption of liability for those defamatory contents.

Nevertheless, although Inmediahk was not liable as “primary publisher” for the defamatory postings, it was held to be liable as a “subordinate distributor” on the basis of acquiescence. By sending the demand letter to Inmediahk in August 2010, Oriental had alerted Inmediahk the defamatory nature of postings and, since then, Inmediahk should be well aware of such postings and should have removed them as requested. As Inmediahk had actual notice of such defamatory postings but failed to remove them from the Website within a reasonable time, Inmediahk could not rely on the defence of innocent dissemination. It was therefore held that Inmediahk had acquiesced in the publication of the defamatory postings and was in the position of a “subordinate distributor”. An award of general damages in the sum of $100,000 was granted in favour of Oriental.

Conclusion

In conclusion, website forum hosts are not shielded from the liability as being the publisher of any defamatory materials. Website forum hosts therefore should pay extra attention when inviting comments on a particular person, as this can be regarded as voluntary assumption of liability for any comments subsequently being made.