Background

Nowadays, the ways many people interact with one another have been changed by technology.  With the rapid and extensive information flow on the internet, one can almost obtain every kind of information instantly.  At the same time, everyone can express their opinions freely on the internet.  On an internet discussion forum, every person can be a creator and an end-user at the same time.  Unsurprisingly, there may be instances where a person posts some defamatory statements on the forum.  This article explores whether an internet discussion forum host who provides and manages a platform for people to exchange opinions will be liable for defamatory posts on the forum.

The Facts

In the case of Oriental Press Group Ltd v Fevaworks Solutions Ltd (FACV 15/2012), the Respondents are the providers, administrators and managers of the Hong Kong Golden Forum, a very popular Hong Kong internet discussion forum.  On three occasions between 2007 and 2009, defamatory statements were posted on the forum by its users concerning the Appellants.  The statements contained defamatory imputations that the Appellants were involved in drug trafficking and money laundering and that the Appellants were somehow connected with another crime.  

On two occasions, the Respondents removed the defamatory posts from the website about three and a half hours after being informed and immediately after they discovered the statements by themselves respectively.  On the third occasion, the Respondents only removed the defamatory posts eight months after being informed.

In the lower courts, the Respondents were only found liable for the third occasion and were ordered to pay damages in the sum of HK$100,000 to the Appellants.  The Appellants appealed against the other two occasions.

The Issues

The Court of Final Appeal was asked to consider the extent to which the providers of an internet discussion forum may be held liable for the posting of defamatory statements by its users.  In particular, the Court had to decide on the following issues:

1.        whether the Respondents were regarded as “publishers” of the defamatory postings in law;

2.        if the Respondents were publishers, whether they were “first or main publishers” or merely “subordinate publishers”; and

3.        if the Respondents were subordinate publishers, whether they could successfully rely on the common law defence of innocent dissemination.

The Rulings

Publishers

The Court held that the Respondents played an active role in encouraging and facilitating the multitude of internet postings by members of the forum.  They designed the forum; laid down conditions for users to become a member to make postings; provided access to various discussion threads on the forum and employed administrators to monitor discussions.  The Respondents were therefore plainly participants in the publication of postings and were publishers from the outset.

“First or main publishers” or “subordinate publishers”?

In deciding whether the Respondents were first or main publishers or merely subordinate publishers, the Court had to consider (i) whether the Respondent knew or could easily acquire knowledge of the content of the publication (the “knowledge criterion”) and (ii) whether the Respondent had a realistic ability to control publication of such content, ie. editorial control involving the ability and opportunity to prevent publication of such content (the “control criterion”).

In applying the test, the Court considered the heavy traffic on the forum (around 30,000 users online at any given time and over 5,000 postings per hour during peak times) and held that the Respondent were not aware of the contents of the postings and realistically, in a many-to-many context, did not have the ability or opportunity to prevent their dissemination.  Therefore, the Respondents were regarded as subordinate publishers in law.

The defence of innocent dissemination

To rely on the defence of innocent dissemination, the Respondents had to prove that they did not know and would not, with the exercise of reasonable care, have known that the publication contained defamatory content.  The standard of reasonable care varies according to circumstances, eg. whether previous experience indicates a special risk of defamatory postings from certain forum members or certain discussion threads.  Also, the Respondent had to show that upon acquiring knowledge subsequently, they promptly took all reasonable steps to remove the offending content from circulation as soon as reasonably practicable.

As mentioned above, given the large volume of traffic on the forum, the Court held that the Respondent had no realistic means of acquiring knowledge of the defamatory posts or of exercising editorial control over the content before they were posted.  Also, it was found that the Respondents promptly took down the defamatory posts within three and a half hours and immediately after becoming aware of them.  The promptness of the Respondents showed that they had taken all reasonable steps.  Therefore, the Respondents were able to rely on the defence of innocence dissemination.

Points to Note

It should be noted that defamation cases are fact-sensitive in nature.  While providers of internet discussion forums are generally considered as publishers, whether they will be regarded as subordinate publishers and therefore can raise the defence of innocent dissemination would depend on circumstances.  For example, if an internet discussion forum has a lower volume of traffic or the topics of discussions are more confined to specific areas, the forum hosts may be expected to have more control over the contents of the postings and therefore, the standard of reasonable care would also be higher.