Libel on the Internet

Oriental Press Group Limited v Fevaworks Solutions Limited

The recent case of Oriental Press Group Limited v Fevaworks Solutions Limited is an important case in relation to the liability of internet forum hosting entities and internet service providers (ISPs). (It is perhaps also interesting that a newspaper is the defendant rather than the plaintiff). The plaintiffs want to restrain the defendants from "publishing" certain allegedly defamatory statements on the Internet against the plaintiffs but the application was rejected by the judge (Yam J).

The plaintiffs are a Hong Kong dominant Chinese newspaper group and one of its owners. The defendants are companies involved in a website which, among other things, promote information about the Golden Computer Centre (高登電腦中心) in Shamshuipo, "a famous shopping centre selling computer and its related products".

Internet Discussion Forum

The website includes an "internet discussion forum" which allows registered members to view and post reply on the forum subject to the terms of the forum, including the usual prohibition relating to inappropriate and defamatory comments. The Forum is classified into forums of various topics and channels (including the popular "吹水台" or "jaw-jaw platform") as "a platform for merchants to exchange information on computer products and expose the improper operating method of unscrupulous merchants". The forum is "monitored" by two administrators from 10am to 7pm to prevent abuse but messages posted by forum users are not, given the number, vetted by the administrators before they are made available to the public. The defendants do not "exercise any control in terms of editing, scrutinising or otherwise modifying the information transmitted".

Alleged Defamation

In January 2009 (while the administrators were off duty), certain messages were posted on the forum making reference to, inter alia, the facts that founders of the newspapers were wanted by Hong Kong police. Some of these messages were removed by the administrators the next morning when they discovered the messages. Further, between 4 February 2009 and at least 20 June 2009, 64 further and similar defamatory statements in the forum. These were also removed when the administrators were informed by the plaintiffs' representatives.

The judgment noted "facts which are common general knowledge to the people of Hong Kong":

• The founders of the newspaper Mr Ma Sik Chun in 1978 together with his brother Ma Sik Yu were arrested and charged for drug trafficking;
• before trial, they had jumped bail, went to Taiwan and Ma Sik Chun is still living there; and
• at common law, a person is presumed to be innocent until he is convicted of a criminal offence.

Arguable Defence to Defamation

The judge accepted that the defendants have arguable defence namely that:

• there was no publication by the defendants (it is not clear if the English case Carrie v Tolkien, which held that there is no assumption in law that placing material on the internet leads to automatically to a substantial publication, was referred to the court);
• the defendants may only be innocent disseminators;
• some of the words complained of either contain no clear references to the plaintiffs, or are otherwise not defamatory
• once the defendants were aware of the allegation of defamatory statements, they removed them from the website
• pre-posting censorship favours large publishers discriminates against small internet website operators like the defendants

Bunt v Tilley

The judge refers to the principles set out in the leading case of Bunt v Tilley & Ors [2007] 1 WLR 1243 (a case of alleged $quot;publication” by internet service providers ( $quot;ISPs”) by Eady J (cf. Mosley v News Group Newspapers Limite and The Author of a Blog v Times Newspapers Limited)

"[21] In determining responsibility for publication in the context of the law of defamation, it seems to me to be important to focus on what the person did, or failed to do, in the chain of communication. It is clear that the state of a defendant's knowledge can be an important factor. If a person knowingly permits another to communicate information which is defamatory, when there would be an opportunity to prevent the publication, there would seem to be no reason in principle why liability should not accrue. So too, if the true position were that the applicants had been (in the claimant's words) responsible for 'corporate sponsorship and approval of their illegal activities'.

[22] I have little doubt, however, that to impose legal responsibility upon anyone under the common law for the publication of words it is essential to demonstrate a degree of awareness or at least an assumption of general responsibility, such as has long been recognised in the context of editorial responsibility. As Lord Morris commented in McLeod v St Aubyn [1899] AC 549 at 562 :

'A printer and publisher intends to publish, and so intending cannot plead as a justification that he did not know the contents. The appellant in this case never intended to publish.'

In that case the relevant publication consisted in handing over an unread copy of a newspaper for return the following day. It was held that there was no sufficient degree of awareness or intention to impose legal responsibility for that 'publication'.

"[23] Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process. (See also in this context Emmens v Pottle (1885) 16 QBD 354 at 357 per Lord Esher MR.)"

[36] In all the circumstances I am quite prepared to hold that there is no realistic prospect of the claimant being able to establish that any of the corporate defendants, in any meaningful sense, knowingly participated in the relevant publications. His own pleaded case is defective in this respect in any event. More generally, I am also prepared to hold as a matter of law that an ISP which performs no more than a passive role in facilitating postings on the internet cannot be deemed to be a publisher at common law. I would not accept the claimant’s proposition that this issue 'can only be settled by a trial', since it is a question of law which can be determined without resolving contested issues of fact.

[37] I would not, in the absence of any binding authority, attribute liability at common law to a telephone company or other passive medium of communication, such as an ISP. It is not analogous to someone in the position of a distributor, who might at common law need to prove the absence of negligence: see Gatley on Libel and Slander (10th edn, 2004) pp 157-159 (para 6-18). There a defence is needed because the person is regarded as having ‘published’. By contrast, persons who truly fulfil no more than the role of a passive medium for communication cannot be characterised as publishers : thus they do not need a defence."

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