In a recent Hong Kong case (Oriental Press Group Limited v. Fevaworks Solutions Limited, 25 February 2011), operators of an online forum were ordered to pay damages of HK$100,000 for failing to remove defamatory statements posted on their forums some eight months after the plaintiff complained. On two other occasions, the same operators removed similar statements within a day and escaped liability. This case, considered to be the first-of-its-kind in Hong Kong, raises interesting propositions that forum operators are categorised as "subordinate distributors" who can rely on the defence of "innocent dissemination".
The operators run a popular Hong Kong-based online forum at forum.hkgolden.com. Certain forum members (with fictitious names) posted messages about a local newspaper group (the Oriental Daily News group) and its founder, alleging involvement in crimes and triad activities. Oriental Daily News claimed those statements defamatory and sued the forum operators for publishing libel.
The Court found the words defamatory without much difficulty. It went on to consider two more contentious questions:
- Whether the forum operators are "publishers" or "subordinate distributors" of those words.
- Whether the defence of "innocent dissemination" is available.
"Publishers" or "subordinate distributors"
The distinction is important because primary publishers (e.g. newspaper proprietors) are strictly liable for libel even without knowledge, whereas subordinate distributors (e.g. newspaper vendors) can resort to the common law defence of "innocent dissemination". After examining English and Australian authorities, Chung J concluded that the forum operators are subordinate distributors for the following reasons:
- A sweeping statement that all Internet service providers and website hosts are "publishers" is inappropriate.
- Publication is a question of fact which depends on all the circumstances. The defendant's knowledge is an important factor.
- The operators of forum.hkgolden.com have exercised minimal editorial control over the forum; they only have two staff to moderate the forum.
- The operators have no knowledge of the postings of the defamatory statements until notified by the plaintiff.
- Subordinate distributors are not necessarily immune from liability; the burden is on them to prove innocent dissemination.
To succeed in this defence, one has to prove that he or she does not know that the publication contains the libel and that the publication is of a character likely to contain a libel, and the want of knowledge is not due to his or her negligence.
The plaintiff criticised the operators for exercising minimal and passive monitoring of forum messages. The Court disagreed that the operators had such a duty which would involve extensive resources and difficult value judgment. The Court also considered that there was insufficient evidence to say the forum was of a likely character to contain a libel, given that the defamatory statements under complaint constituted only a small proportion of all the forum messages.
The plaintiff wrote to the operators on three occasions complaining about three batches of defamatory statements.
The Court found the operators liable on one occasion when they took some eight months to remove the messages. The delay was caused by negligence. The operators are liable for damages of HK$100,000.
The operators are not liable for the other two occasions, where the messages were deleted within one day of the complaint.
Costs of the proceedings will be further argued.
Questions and lessons learnt
It is reported that the plaintiff spent nearly HK$2 million in legal costs (20 times the damages awarded!) and is considering an appeal. It will be interesting to see if the appeal (if materialised) would cast any light on questions which have not been directly addressed in this judgment, for example:
- What if a forum operator refuses to remove a posting because it honestly believes that the statements are not defamatory or not libellous?
- What factors decide whether a forum operator has acted sufficiently promptly in response to a complaint?
In the meantime, there are lessons to be learnt:
- Libel victims have recourse against forum operators, but it would be wise to write to the operators first and keep a proper paper trail (proving receipt of complaint, the time of removal, etc.).
- Forum operators should be vigilant towards complaints of defamation and act promptly. It is also worth including subscription terms which empower operators to remove suspected defamatory contents and require users (who might be asked to register with their real identity) to indemnify the operators' loss.