Summary

Operators of a popular online forum are not primary publishers of defamatory messages posted by forum members, the Hong Kong Court of Appeal recently confirmed. They are "subordinate distributors" in the eyes of the law of defamation who may plead the defence of innocent dissemination.

Full update

The background of the case is summarised in our earlier legal update- "The Writing is on the Forum - Defamation on the Internet".

At trial, the defendant operators were found liable and ordered to pay HK$100,000 for failing to promptly remove a defamatory posting on one occasion. They were held not liable in two other instances where they removed similar postings within a day. The plaintiffs appealed on both quantum and liability.

Appeal on liability

The Court of Appeal dismissed the appeal and refused to find the defendants liable for the two other incidents. In confirming that the defendants are "subordinate distributors" (who may plead innocent dissemination) rather than "primary publishers" (strict liability subject to defences such as justification or fair comment) of the defamatory material, the Court made a number of important points in this area of law:

  • Analogy to notice boards: The defendant operators are in the same position as the person responsible for a traditional notice board where people can affix messages. Liability arises on the basis of acquiescence - a website forum host would be liable if it fails to remove the defamatory material (posted by forum members) within a reasonable time once it had been notified of the existence of the defamatory material and a request to remove it.
  • Impracticality to screen postings: The defendants are not like the TV broadcaster in the Australian case Thompson v Australian Capital Television Pty, who was held to be a primary publisher by simultaneously telecasting a programme made by another TV channel. The Court considered that whereas it would have been relatively straightforward for the TV broadcaster to screen the programme by delaying the transmission by a few minutes or seconds, it would be impractical for the defendants to technically or manually screen over 5,000 postings per hour posted on the forum and make a judgment on whether they are defamatory.
  • Freedom of speech: To impose legal responsibility as a primary publisher hence expecting the host of an online forum to vet every posting beforehand might create a disproportionate interference with the freedom of speech, given that operators might simply choose to close down such forums. The Court observed that many such forums attract a large amount of non-defamatory postings.
  • The defamed person still has remedies: Categorising forum operators as subordinate distributors does not prevent the defamed person from going after the originator. Further, the onus is on the forum operators to prove innocent dissemination.
  • Each website host is different: The Court warned that there might be situations where it would be proper to deem a website host as a primary publisher. It depends on the circumstances, including the particular facts of the publication and whether there are facts to suggest that the host has accepted responsibility for the posting. An example is where the website host invites defamatory comments on a particular person.
  • Innocent dissemination: The Court rejected that this common law defence has been superseded by the statutory "offer of amends" defence under s.25 of the Defamation Ordinance. The Court also said that the reasonableness of the time taken to remove the postings is relevant in deciding whether there is liability based on acquiescence.

Appeal on quantum

The Court refused to disturb the HK$100,000 damages awarded to the joint plaintiffs. The Court considered the following factors:

  • There is a fundamental difference in the reputation that attaches to a person and a corporation. To the latter, reputation is more a commercial asset. In the absence of proof of general or special damages, the damages awarded to a corporation plaintiff in a defamation suit would probably be small.
  • Although the libel in question amounted to the most serious attack on the plaintiffs' reputation (suggesting involvement in a murder), the postings were bare allegations made by anonymous individuals. They carried less weight compared to a libel published by a known person in an ostensibly researched article.
  • While online postings could be downloaded worldwide, there was no evidence that the defamatory postings in question attracted any significant identifiable interest. Unlike a newspaper or magazine which has a fixed amount of contents, the defendants' forum receives about 5,000 postings each hour, one topic being superseded by another and added to constantly.
  • The injured plaintiff ought to be adequately compensated for its injury but the Court must not give excessive damages lest it might force these websites to close down and impede the freedom of speech.

Importance

The appeal ruling is important in confirming the role of forum operators (at least those which operate like the defendants) as subordinate distributors and the defence available to them in a defamation case. However, as observed by the Court, one must not over-generalise as the categorisation depends on the circumstances of each case.

From a practical perspective, we would like to again set out some suggestions for the readers' reference:

  • Libel victims may 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' liability.