By Anjelica Tang, Associate.

The recent Court of Appeal decision in two lengthy legal actions involving defamatory words posted on an online discussion forum has potentially profound implications on the liabilities of website hosts as subordinate distributors.

Oldham, Li & Nie acted for ALIVE!, the provider, administrator and manager of the website http://www.hkgolden.com (also known as the Golden Forum) in this landmark Court of Appeal case.

The long-running battles

The Golden Forum is the most popular internet community in Hong Kong, mainly due to the creativity of and entertainment brought by its users.

In March 2007, three defamatory publications were posted on the Golden Forum by its registered members suggesting that Oriental Daily and The Sun were accomplices to the murder of a newspaper vendor, Sister Ha, and that they had compounded their culpability by avoiding any mention of the case in their newspapers.

At a full hearing of the case, the High Court accepted that ALIVE! had removed two of the defamatory publications within a reasonable time and, therefore, it was not negligent. ALIVE! was, therefore, able to establish the defence of innocent dissemination in respect of these defamatory publications.

However, the High Court found that there had been undue delay of 8 months in removing the third defamatory publication and inferred that the delay was caused by ALIVE!’s negligence.  The High Court, therefore, awarded damages of HK$100,000 to Oriental Daily and The Sun.

The award was not made on the basis that ALIVE! had been found liable as an author or primary publisher of the defamatory words, but as a subordinate distributor (i.e. a person whose participated in the publication by selling, distributing or handing to another a copy of the newspaper or book in which the defamatory material appear). Having been informed of the defamatory words and having received a request to remove them, ALIVE! failed to do so within a reasonable time.

Upon appeal

Oriental Daily and The Sun appealed on the grounds that ALIVE! should be liable as a primary publisher of the defamatory words and that the amount of damages should increase.

In January 2012, the appeal was dismissed by the Court of Appeal. The court held that legal responsibility on the host of a website forum for defamatory postings would only be imposed on the basis of acquiescence. In other words, liability would attach to the host of a website forum once it had been notified of the existence of the material and received a request to remove it, but had failed to do so within a reasonable time.

The court was reluctant to impose legal responsibility on the host of a website forum for defamatory postings as primary publishers. This could lead to the closure of website forums to the extent that this would suppress the thousands, if not millions, of non-defamatory postings that might be made to such forums. This would be a disproportionate interference with the freedom of speech.

Impact on Web Users

The Internet is a powerful tool for the protection of free speech, the right to which is guaranteed to every Hong Kong resident under the Basic Law. This does not mean, however, that Internet users have absolute freedom to voice their opinions under “pseudo-names”. The originator of the posting will remain liable for the defamation as a primary publisher and any victim who feels aggrieved by the defamatory posting may seek an order from the court requiring the website host to disclose any personal information of the originator such as their names, email addresses and Internet Protocol addresses.

In the case of Cinepoly Records Co Ltd and others v Hong Kong Broadband Network Limited [2006] 1 HKLRD 255, the High Court made an order against 4 internet service providers for the disclosure of the full names, postal addresses and identity card numbers of the persons whose Internet accounts were assigned the Internet Protocol addresses of 22 alleged online copyright infringers.

Any website that allows third parties to post comments and/or exchange views (such as OpenRice and TripAdvisor) is also exposed to being liable. So too, a user of social networking sites such as Facebook, Twitter or Myspace who fails and/or refuses to remove any defamatory postings on their walls.

Practical Steps

Website hosts seeking in the future to avoid liability for the publication of defamatory material should consider:

(1)    including a disclaimer on its website to the effect that the website prohibits any messages communicated amongst the member that contain defamation or offending language;

(2)    including a condition on the website to the effect that the website host will seek damages on an indemnity basis against any member who abuse their membership;

(3)    giving clear instructions on the website as to how complaints on a particular posting can be made;

(4)    allowing only members who complete a registration process to make postings on the website;

(5)    accepting only valid email addresses from recognized internet service providers, educational institutes or large established companies for member registration so that, in the event of abuse of membership, users may be easily identified;

(6)    keeping an accurate record of the number of viewers for each page, and the Internet Protocol addresses of each user who makes a comment on its website;

(7)    employing administrators to monitor the website and remove or disable access to postings which are considered improper and to impose a sanction mechanism against any member who deliberately use the website as a tool to spread defamatory messages (the number of administrators required would of course depend on the traffic of the website); and

(8)    avoiding any participation in the knowing publication of defamatory words by inviting defamatory comments on a particular person or organization.

More importantly, having been put on notice, the website host should immediately remove any alleged defamatory postings on its website.

By Anjelica Tang

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