Case Law, Hong Kong, Oriental Press Group v Fevaworks, Provider of Internet Forum is a publisher but has “innocent dissemination” defence

17 07 2013

2013-03-26_111713In Oriental Press Group Ltd & Others v Fevaworks Solutions Ltd & Others [2013] HKCFA 47, the Hong Kong Court of Final Appeal held that an internet forum provider is not like a notice board owner and not a first or main publisher, but qualifies as a subordinate publisher entitled to rely on the defence of innocent dissemination.

The Court reviewed the case law from other jurisdictions and the leading judgment of Mr Justice Ribeiro provides a useful survey of the current state of the common law relating to publication by the operators of internet forums.

Facts

The plaintiffs in this libel action were the publishers of two popular daily newspapers, the group that owns those publishers, and the group’s chairman.  The defendants were the providers, administrators and managers of a website which hosts one of the most popular internet discussion forums in Hong Kong. In 2007, 2008 and 2009, defamatory statements were posted by users of the forum concerning the plaintiffs.

The defendants were initially unaware of the 2007 and 2008 statements but removed them after complaints from the plaintiff. The 2007 statements were removed more than eight months after the complaints; and the 2008 statements, after three and a half hours. The defendants themselves discovered the 2009 statements about 12 hours after they had been posted and immediately took them down.

The plaintiffs’ libel actions were tried in the Court of First Instance before a Judge without a jury. The Judge awarded HK$100,000 in respect of 2007 statements but dismissed the plaintiffs’ claims regarding both the 2008 and 2009 statements ([2011] HKCFI 132). The Court of Appeal upheld the Judge’s findings, holding that the defendants had innocently disseminated the 2008 and 2009 statements ([2012] HKCA 5).  The award in respect of the 2007 statements was not challenged by the defendants. The plantiffs appealed to the Court of Final Appeal.

The issues on the appeal were as follows:

  • Were the respondents to be treated as “publishers” of the defamatory statements at all?
  • If they were “publishers”, were they “first or main” publishers, or were they “subordinate” publishers? This was important as “first or main” publishers are strictly liable for defamatory statements published by them, whereas “subordinate” publishers could under given circumstances rely upon the common law defence of “innocent dissemination”.
  • If “subordinate” publishers, did the respondents satisfy the requirements of the defence of “innocent dissemination” both before and after becoming aware of the defamatory posts?

The judgment

In giving the leading judgment Justice Ribeiro PJ began by considering the common law defence of “innocent dissemination” – designed to relax the strict rule of liability for publication.  He pointed out that this defence was only available to those who played a “subordinate part” in publication.  In such cases, it replaced the strict liability rule with a rule which imposed liability only in cases where a person knew or or to have known that what was being disseminated contained defamatory material [29]

The judge went on to consider the “notice board” cases – beginning with Byrne v Deane ([1937] 1 KB 818).  He held that these cases were authority for three propositions

 (a) Where a third person writes or affixes a statement defamatory of the plaintiff on the occupier’s property without the occupier’s knowledge, the occupier is not treated as a publisher of that statement prior to his becoming aware of it.

(b) Once the occupier discovers its existence, he may be treated as a publisher but only if, having the power to do so, he does not remove or obliterate the offending statement in circumstances which justify inferring as a matter of fact that by his inaction he has consented to or ratified its continued publication.

(c) Where the occupier becomes aware of the libel but the circumstances show that removal or obliteration is very difficult or very expensive, the fact that the defamatory statement is not expunged may well not justify the inference that it remains in place with his approval. [44]

 The judge went on to point the important distinction between the principles deriving from the “innocent dissemination” defence and those deriving from the notice board cases.  In “innocent dissemination” cases, the defendnats were publishers whereas the owners of noticeboards who are not aware of the libel and did not allow it to remain in place are not publishers at all [48].

The “noticeboard” principles did not apply to internet discussions forums at all: the defendnats were

“plainly participants in the publication of postings by the forum’s users and in that sense they were publishers from the outset” [52]

As a result, the Court of Final Appeal refused to follow the decision in Tamiz v Google – which proceeed on the basis that the successful invocation of the defence of innocent dissemination meant that the defendant is not a publisher at all.  Justice Ribeiro continued

Nor am I able to accept the distinction drawn between the notice board and graffiti analogies, nor the suggestion that “the provision of a platform for blogs is equivalent to the provision of a notice board”. As indicated above, my view is that the provider of an internet discussion platform similar to that provided by the respondents falls from the outset within the broad traditional concept of “a publisher”, a characteristic not shared by a golf club or other occupier who puts up a notice board on which a trespassing message is posted. [53]

The question in the case was, therefore, whether the defendant was a  “main” or a “subordinate” publisher.  Justice Ribeiro held that an internet forum cannot be treated the same as print media or radio and television, all of which are generally considered to be “main” publishers with strict liability.  The criteria for identifying a person as a first or main publisher were

“(i) that he knows or can easily acquire knowledge of the content of the article being published (although not necessarily of its defamatory nature as a matter of law); and (ii) that he has a realistic ability to control publication of such content, in other words, editorial control involving the ability and opportunity to prevent publication of such content” [76].

The Court held that the defendant had established the of innocent dissemination in relation to the 2008 and 2009 statements. They did not know the content of each posting; did not authorize publication; did not exercise editorial or general control over the publication process; and so did not realistically have the ability or opportunity to prevent publication.  After they came to know of the defamatory postings, they acted with reasonable care since they promptly removed them.

Comment

The case provides an interesting and comprehensive analysis of the common law relating to publication by the providers of internet forums and social networking sites.  The common law still applies in this area in Hong Kong and the Court considered a range of cases from several common law jurisdictions dealing with issues concerning publication and the defence of innocent dissemination.

In England, the common law has been supplemented (but not replaced) by the statutory defences found in section 1 of the Defamation Act 1996 and by Regulations 17 to 19 of the Electronic Commerce (EC Directive) Regulations 2002.  These have been considered in a number of English cases – most recently Tamiz v Google (see the Inforrm case note).  As noted above, the Court of Final Appeal differed from the analysis in those cases – holding that the provider of an internet forum is a “publisher” – albeit a “subordinate” one. Even if the operator of an English internet forum was, indeed, a “publisher”, he would still have a defence under the Electronic Commerce Regulations – which could only be overcome if it could be shown that the operator had actual knowledge of the unlawful activity (see the Inforrm case note on Davison v Habeeb).

It should be noted that the provider of an internet forum in England and Wales will, shortly, be able to benefit from the new defence in section 10(1) of the Defamation Act 2013 which provides that

“A court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher”

Nevertheless, on the facts of this case, the result may well have been the same in England.  The defendant would not have been liable in respect of the 2008 and 2009 publications but would have been in relation to the 2007 publication – having failed to take it down for 8 months after receiving notice of the unlawfulness.


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