Hong Kong Court of Final Appeal rules on defamation claim against provider of an internet discussion forum

In Oriental Press Group Ltd & Others v Fevaworks Solutions Ltd & Others [2013] HKEC 1025, the Hong Kong Court of Final Appeal (CFA) has ruled on whether and under what circumstances the provider of an internet based discussion forum may be held liable for defamatory material posted on the forum.  Mr Justice Ribeiro PJ, delivering the leading judgment, took the opportunity to review case law from other common law jurisdictions and to formulate the principles applicable in Hong Kong.  This judgment will be of interest both to providers of discussion fora and other internet based interactive sites and to those who are subject of (defamatory) comments posted on such sites.

The facts

The respondents in this appeal are the providers, administrators and managers of a website which hosts a very popular Hong Kong internet discussion forum. The forum is membership based, which means that only users who have registered and signed up to certain rules can post messages onto the forum. The rules include a prohibition against postings of objectionable content, including defamatory statements.  Two administrators were employed by the respondents to monitor the forum discussions for six to eight hours per day with a view to removing objectionable content.  On three occasions between 2007 and 2009, defamatory statements were posted on the forum suggesting that the appellant was involved in drug trafficking and money laundering.  On two occasions, the respondents removed the statements as soon as they became or were made aware of them, but on the third occasion the statement was only removed about eight months after the respondents were informed of its existence.  The appellants were awarded damages of HK$100,000 in relation to the third incident, due to the delay in removing the statement, but the respondents were not found liable in relation to the other two incidents.  

The issues

In order to be found liable for the tort of libel or defamation a defendant has to be shown to have "published" or communicated a defamatory statement to a third party. The question that was central to the claim was therefore whether and to what extent the provider of an internet forum can be treated as "publisher" of defamatory statements posted by a user of its site.  The CFA had to consider the following issues:

• 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

Justice Ribeiro PJ made the following important findings regarding the principles applicable to postings on an internet forum:

• A provider and administrator of an internet forum that encourages and facilitates postings by its members or the public is a "publisher" regardless of whether the provider knew about the defamatory content of the post.  
• When deciding whether the provider is a "main" or a "subordinate" publisher, 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 test to apply is whether the publisher (i) knows or can easily acquire knowledge of the content of the publication and (ii) has a realistic ability to control publication of the content before it is published.  Unlike the traditional media, which will decide what to publish or to broadcast, the provider of a busy internet forum (the respondent provider was known to receive over 5,000 posts per hour during peak times) cannot be treated to have knowledge of and control over every post before it is posted.  One could also not say that the respondents had "authorised" the postings (as was suggested by the appellants) in light of their rule against objectionable content.
• A "subordinate" publisher may rely upon the common law defence of innocent dissemination where the publisher can show that he did not know and could not with the exercise of reasonable care in the relevant circumstances have known that the publication contained defamatory content.  Also, the publisher must be able to show that, upon becoming aware of the defamatory content, he took all reasonable steps to remove the offending content from circulation as soon as reasonably practicable. 
• With respect to the knowledge prior to publication, different standards may apply depending upon whether previous experience has shown that certain users or certain discussion topics are likely to generate defamatory content. It was found by the courts below (and accepted by the CFA which usually accepts factual findings) that, in light of the very high volume of traffic generated on the forum (with up to 5,000 postings per hour and 30,000 users on line at any time), the respondent could not have known of the defamatory content prior to publication; although this is a finding questioned by one of the CFA judges (Justice Litton NPJ) in light of the fact that there had been previous defamatory postings in relation to the appellants.  It was also found that the respondents acted promptly by taking the postings down within three and a half hours and 15 minutes respectively after becoming aware of their defamatory content.  All of this meant that the respondents could take advantage of the defence of innocent dissemination.

Take away points

• Providers of internet fora and social networking sites will normally be considered to be "publishers", although they are more likely to be considered subordinate publishers and therefore to be able to benefit from the common law defence of innocent dissemination compared to more traditional media.
• In order to be able to benefit from the "innocent dissemination" defence, the provider will need to have processes in place to show that it is taking reasonable steps to identify and promptly remove objectionable content.  These steps are likely to differ depending on the nature of the traffic to the site.  For example, hosts of discussion fora with a lower volume of traffic and a narrower topical focus may be expected to take greater care in monitoring contributions.
• Where there are factors that indicate that certain posts are more likely to contain defamatory content (eg, in cases where a certain user is known to have posted defamatory content in the past), the provider may have to put more targeted screening in place to ensure that objectionable content is identified and removed quickly.
• Where someone is subject of a defamatory post, he or she should notify the provider of the forum immediately and request removal of the content.  If the content is not removed promptly this may give rise to a claim in damages.
• In Hong Kong, damages for defamation have traditionally been considerably lower than in other jurisdictions such as England & Wales.  The award in this case is in line with that long term trend.