Oriental Press Group Ltd and Another v. Fevaworks Solutions Ltd
Read the full judgment text of HCA 2140/2008 on BabelCite. This Court of First Instance judgment was delivered on 25 February 2011 before Hon Chung J.
Defamation – libel – internet discussion forum – host as publisher or subordinate distributor – innocent dissemination – freedom of speech – consolidated actions HCA 2140/2008 and HCA 597/2009 – Oriental Daily News and The Sun newspaper publishers suing operator of 香港高登 (hkgolden.com) discussion forum – whether words posted by anonymous subscribers in March 2007, October 2008 and January 2009 were defamatory – words imputing that the plaintiffs were in some way connected with the murder of Sister Ha, that the newspapers were founded with drug money, and that the Ma family were drug traffickers and money launderers with 14K triad connections – held defamatory on ordinary reasonable reader test – whether internet discussion forum host is a publisher of subscriber content – preferred approach in Bunt v. Tilley [2007] 1 WLR 1243 over strict liability in Godfrey v. Demon Internet [2001] QB 201 – publication is a question of fact depending on circumstances and the defendant's knowledge and degree of participation – freedom of speech under Basic Law art. 27 and Hong Kong Bill of Rights Ordinance (Cap. 383) art. 16(2) requires a flexible approach – host with minimal editorial control and no knowledge of postings held to be a subordinate distributor, not a publisher – whether defence of innocent dissemination is available – three-part test (no knowledge of libel, no knowledge the publication was of a character likely to contain libel, want of knowledge not due to negligence) – imposed no general duty to monitor all forum messages – Mar 2007 words: defendants took about 8 months to remove after being informed with no good reason, defence failed and liability established – Oct 2008 words: removed within about 1 day of notification (allowing for weekend), defence succeeded – Jan 2009 words: removed within about 12 hours, defence succeeded and HCA 597/2009 dismissed – single award of general damages of HK$100,000 to 1st and 2nd plaintiffs of HCA 2140/2008, no aggravated damages – costs to be determined by written submissions
Legal issues: Whether the words complained of are defamatory of the plaintiffs · Whether the defendants as internet discussion forum host were publishers of the defamatory words · Whether the defence of innocent dissemination is available to the defendants
Outcome: Liability established against the defendants only in respect of the Mar 2007 words (HCA 2140/2008); HCA 597/2009 (Jan 2009 words) dismissed; no liability in respect of the Oct 2008 words. General damages of HK$100,000 awarded jointly to the 1st and 2nd plaintiffs of HCA 2140/2008. No aggravated damages awarded. Costs to be dealt with by written submissions.
Cites 5 cases
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HCA 2140/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 2140 OF 2008 ____________ BETWEEN
____________ AND HCA 597/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 597 OF 2009 ____________ BETWEEN
____________ Before: Hon Chung J in Court Dates of Hearing: 4 to 7 January 2011 Date of Handing Down Judgment: 25 February 2011 _________________ J U D G M E N T _________________ INTRODUCTION 1.The plaintiffs of HCA 2140/2008 commenced that action in October 2008 (“the Oct 2008 action”). They allege the defendant therein (“Fevaworks”) should be held liable for publishing libel on the internet in March 2007 and in October 2008. 2.After the commencement of the Oct 2008 action, the plaintiffs of HCA 597/2009 commenced another action in March 2009 (“the Mar 2009 action”). They allege the defendants therein (Fevaworks and “AMC”) should be held liable for publishing libel on the internet in January 2009. 3.The Oct 2008 action and the Mar 2009 action will be called “the actions” below. 4.Save specifically mentioned below, no distinction has been made among the various plaintiffs. For convenience, they will be called “the plaintiffs” below. 5.Similarly, although the importance of the defendants’ corporate identities has been hinted at earlier, by the time of the trial of the actions this is not relied upon as part of their defence. For convenience, they will be called “the defendants” below. 6.The defendants deny liability in the actions. THE PARTIES 7.The corporate plaintiffs have been operating the business of publishing the Oriental Daily News and The Sun, two daily Chinese newspapers widely circulated in Hong Kong. The personal plaintiff occupies the post of the honorary chairman; he is the son of a Mr Ma Sik Chun (“Ma”). 8.The defendants have been the provider, administrator and manager of a website on the internet with the address http://www.hkgolden.com and known as “香港高登”. Among other things, the website hosts an internet discussion forum with the addresses http://forum4.hkgolden.com and http://forum7.hkgolden.com. The channel of the discussion forum relevant to the action is known as “吹水台”. 9.As the phrase “discussion forum” implies, an internet discussion forum is an on-line platform where subscribers to the forum can raise, and join in, various discussion topics. Apart from being hosted on the internet instead of the real world, an internet discussion forum operates very much along the working principles of bulletin boards or notice boards which are commonly found in schools, universities, clubs, hospitals, supermarkets and other similar establishments. 10.Messages posted onto an internet discussion forum usually originate from the subscribers rather than the forum provider, administrator and manager. Discussions on an internet discussion forum, like messages posted on bulletin boards, can be read by the public. But because of the popularity of the internet, the readership of an internet discussion forum can be a lot greater than conventional bulletin boards. 11.In relation to the defendants’ discussion forum, subscribers who start or join in the discussion retain a high degree of anonymity, although their real identity can still be traced by tracking down their IP address and/or e-mail address. The degree of the defendants’ moderation, which will be set out in more details below, can be said to be minimal. THE ISSUES 12.Three main issues have been raised as regards the defendants’ liability:-
ARE THE WORDS DEFAMATORY OF THE PLAINTIFFS? 13.As stated above, the words complained of appeared on the defendants’ discussion forum on 3 occasions, namely, March 2007, October 2008 and January 2009. They will be dealt with under separate sub-headings below. 14.The legal principles for determining the meaning of the words are trite and have been succinctly set out in numerous authorities and practitioners’ textbooks such as Gatley on Libel and Slander (2008) 11th Ed. 15.For ease of reference, those principles, summarized in Oriental Daily Publisher Ltd. and Another v. Ming Pao Holdings Ltd. and Others, HCA 607/2008 (28 May 2010), are quoted below:-
(a) The Mar 2007 Words 16.The statement of claim sets out the relevant words:-
(“the Mar 2007 words”) 17.The plaintiffs contend that the words were defamatory of them in that they were alleged to be guilty of, or were involved in, the murder of Sister Ha, that they deliberately avoided reporting the trial and conviction of the offenders and that the two newspapers were biased and unjust. 18.In their closing submission, the defendants argued that, taken together, the words:-
19.I disagree with the above argument. To say that the plaintiffs have something to hide in relation to a serious crime of murder is in effect to insinuate a derogatory imputation that they were (at least) in some way connected with the crime (even though the precise connection was not stated; and hence was left to the reader’s imagination). In other words, the imputation was the plaintiffs were in some way accomplices to that crime. Alleging someone to have committed a crime is defamatory: Gatley, para. 4.3 to 4.12. 20.I also find the words to impute that the plaintiffs deliberately avoided to report the case of Sister Ha. (b) The Oct 2008 Words 21.The statement of claim avers:-
(“the Oct 2008 words”) 22.The words were said to impute the defamatory meaning that the plaintiffs and the Oriental Daily News were founded with drug-money, that they were involved in drug trafficking and/or money-laundering activities, that they were involved in illegal and/or immoral activities and that they were corrupt, illegal, immoral and unethical. 23.In their closing submission, the defendants merely refuse to admit the words were defamatory of the plaintiffs without giving any reasons in support. 24.The corporate plaintiffs were expressly named. In context, the reference to “白粉報” must be a reference to the Oriental Daily News. As stated above, alleging someone to have committed a crime is defamatory: Gatley, para. 4.3 to 4.12. Both money laundering and passing information concerning drug trafficking are criminal offences. 25.I therefore agree with the plaintiffs the words were defamatory of them in the manner set out in para. 22 above. (c) The Jan 2009 Words 26.The statement of claim complains that:-
(“the Jan 2009 words”) 27.The plaintiffs contend those words were defamatory in imputing the two newspapers were founded with drug-money, that they were involved in drug trafficking and/or money laundering activities, that they were involved in illegal and/or immoral activities and that they were corrupt, illegal, immoral and unethical. Those words also imputed that the personal plaintiff was a member of a family involved in drug trafficking and/or was a member of or associated with the 14K triad society. 28.Again, the defendants do not admit the words were defamatory of the plaintiffs but no reasons are given in support. 29.For reasons similar to those set out in para. 24 above, I find that the imputation of the words was as stated in para. 27 above. WERE THE DEFENDANTS THE PUBLISHERS OF THE WORDS? 30.The dispute about this aspect between the parties is whether the defendants, as the provider, administrator and manager of the internet discussion forums, were in law the publishers (as the plaintiffs contend) or mere subordinate distributors (sometimes called “subordinate publishers” or “subordinate disseminators”) (as the defendants contend). 31.In arguing for the defendants being the publishers of the libel, the plaintiffs rely especially on the following authorities:-
32.The decision in Godfrey must have been based on the legal principle that:-
That case involved an internet service provider which provided subscribers (sometimes described as “customers” in the judgment) with, among other things, access to USENET bulletin boards. An unknown person posted a message defamatory of the plaintiff. This was accessible from the defendant’s internet news server and could be downloaded by subscribers. 33.The court held the internet service provider to be liable. As a fact, the defendants were informed of the posting about 4 days afterwards but they did not remove it until about 10 days after being informed. The court said in the judgment:-
34.Thompson was a decision of the High Court of Australia. It was concerned with the live re-transmission of a live current affairs programme by a television station, and not an internet discussion forum. Defamatory remarks were made by an interviewee in the course of the live broadcast (and live re-transmission). 35.The court held the defendants to be liable; but the court members’ reasons for the holding seem to be different. Some members of the court thought that because the defendants:-
Other members of the court held the defendants liable on the basis of principal and agent:-
On the last-mentioned basis, the court held the defendant television station authorized the live re-transmission of the programme produced by another television station because:-
36.The comments in Godfrey quote above do not sit comfortably with those in Bunt v. Tilley [2007] 1 WLR 1243, a decision which naturally the defendants rely on in support of their stance. 37.In Bunt, some defendants were the host of a website while the others were the internet service providers. The plaintiff sued them for defamatory messages posted on the website. The internet service provider defendants applied for, and were granted an order, striking out the claim against them. In the striking out application, the applicants contended they were at common law not the publishers of the messages. 38.In holding for the applicants, the court in Bunt observed that knowledge of the defamatory words can be important to whether one should be held liable:-
39.While it can be said that liability for the publication of defamatory material is strict at common law, there are limits to such a statement. As shown below, the limits are not always logically consistent. 40.“[At] common law liability extends to any person who participated in, secured or authorised the publication (even the printer of a defamatory work) though this was qualified by special rules for mere distributors, who could escape liability by showing lack of knowledge of the defamatory nature of the publication and the exercise of reasonable care”: Gatley, para. 6.4 (and 6.19) (emphasis supplied). 41.“[There] may be publication if the defendant draws the attention of others to an existing libel or even leaves it in a place where they are likely to see it, provided someone does so. It has been held that where defamatory matter is placed in a visible manner on the defendant’s property by some third party for whom he is not responsible, he may be treated as publishing the matter if he elects to leave it there. Where, however, the removal of the defamatory matter would involve great trouble and expense the occupier will not be liable, for one cannot then draw the inference that he is voluntarily allowing it to remain. An internet service provider upon whose site defamatory material is placed by another may incur liability for failure to remove it”: Gatley, para. 6.6 (emphasis supplied). 42.Thus, people such as news vendors (perhaps also booksellers) and proprietors of libraries are publishers; but the common law defence of innocent dissemination provides them with an escape from liability (as will be set out in more detail under the next heading below): Gatley, para. 6.19, text to nn. 151 and 152. Persons who have control over properties (such as owners, occupiers or managers) are in a similar position. 43.Gatley commented that a logical extension of the common law strict liability will mean the post office, telephone and telegraph companies may be liable as publishers (unless liability is exempt by statute): para. 6.18 thereof (esp. text to nn. 136 to 138). However, Gatley also observed that a telephone company is similar to an internet service provider which “performs no more than a passive role in facilitating postings on the Internet” and is not a publisher: para. 6.18, text to nn. 139 and 140 (citing the Bunt case). 44.The conclusion that the post office, telephone and telegraph companies can be publishers is surprising, bearing in mind it is highly unlikely these establishments have knowledge of the libel. Gatley has not referred to any UK judicial decisions concerning litigations brought against them. But it observed that telegraph companies have been involved in quite some litigations in the US (where they were held to be publishers): Gatley, para. 6.18, text to n. 142. 45.The above must have prompted Gatley to propose:-
Strangely enough, having made the proposal, Gatley then says:-
46.Internet service providers may or may not be the hosts of websites, internet news groups and bulletin boards and the like. If they are not, it is difficult to see why Gatley’s above proposal should not apply to them, since they can also be said to have provided public services by enabling easy access to information via the internet, which nowadays many would consider an important icon of free flow of information. Even if they are the hosts, the provision of such public services may warrant the law to consider whether they should be treated as publishers or subordinate distributors (websites can take many forms and shapes, from the permanent storage of data which were compiled by the hosts themselves, to short-term and instantaneous data (in the form of web “telephone calls” and messages for example) sent or posted by paying or non-paying third parties (usually the subscribers)). 47.As stated above, the present dispute is about whether the host of an internet discussion forum (sometimes called an internet bulletin board) can be considered the publisher of libellous statements posted by, and accessible on the internet to, third parties. According to Gatley, it is unclear whether internet service providers should be held liable if they have no knowledge of the libel: para. 6.18 thereof (esp. text to nn. 133 and 139 to 141). 48.The plaintiffs argue that they should be because:-
For the reasons set out below, I disagree with the above argument. 49.Freedom of speech is widely accepted in civilized societies as a right. In Hong Kong, the right to freedom of speech is entrenched in the Hong Kong Basic Law (art. 27) and the Hong Kong Bill of Rights Ordinance (Cap. 383) (s.8 and art. 16(2)). In particular, article 16(2) reads:-
50.There is indication that recent developments in the common law relating to defamation have jealously guarded the right to freedom of speech:-
51.In view of the matters set out above, a sweeping legal principle that all internet service providers are “publishers” of a statement, irrespective of whether the statement originated from them, is clearly too rigid and unnecessary. The same can be said of any legal principle that all website hosts are “publishers” of such a statement. As stated above, websites can take various forms and shapes. 52.On the other hand, to adopt the approach in Bunt (that is, whether there has been publication is a factual issue, depending on circumstances in particular the defendant’s knowledge) is more likely to enable a just and fair result to be achieved. This is because the fact that a website host is found not to be a publisher, but merely a subordinate distributor (or subordinate publisher or disseminator) does not mean it is immediately absolved from liability for the libel; the host still has the burden of establishing the defence of innocent dissemination. 53.Further, to do so would bring in line the approach applicable to news vendors, library proprietors and persons having control of properties (para. 41 and 42 above) in line with that for website hosts (a fortiori internet service providers). 54.The plaintiffs’ emphasis that the defendants’ operation is profit-making is neither here nor there. After all, most of the privately-run mass media enterprises are commercial ventures which aim similarly at making profits. 55.The undisputed evidence in the actions is that the defendants have exercised minimal editorial control over the web discussion forums. The responsibility to moderate the defendants’ discussion forum falls on two employed staff. But there are two limitations: one, their main duties were not discussion forum moderators, and two, they only act on receipt of complaints. 56.There is no dispute the defendants were unaware of the posting of the defamatory statements until they were brought to the defendants’ attention by the plaintiffs. 57.In view of the above matters, I find that the defendants were mere subordinate distributors of the defamatory statements in the actions. THE DEFENCE OF INNOCENT DISSEMINATION 58.The defence has been summarized in Gatley:-
59.I accept the above to be an accurate summary of the relevant legal principles and make the findings based on these principles. 60.Further, by reason that the defendants have been found to be the subordinate distributors of the libel, it is open to them to rely on this defence. 61.General criticisms have been levied against the defendants’ operation:-
62.Apparent anonymity on the internet has its pros and cons. It promotes freedom of speech because people would feel less inhibited in expressing themselves over various matters. On the other hand, it can encourage the use of excessive or improper (or even unlawful) words. 63.If the law were to impose a duty on the part of an internet discussion forum host to require the disclosure of the personal particulars of its subscribers, in effect this will mean the host is also fixed with a duty to verify those particulars. This is because a disclosure without verification almost always ends up the same as no disclosure in the long run. To impose a duty of verification will be too onerous from a practical point of view. In any event, the ingredients of this defence do not encompass such a duty. 64.Although this is strictly irrelevant for the actions, I pause to observe that anonymity on the internet is more apparent than real. As HKSAR v. Chan Johnny Sek Ming [2006] 4 HKC 264 shows, the defendant, who used a pseudo-name to post internet discussion forum messages constituting criminal conduct, was tracked down by the police and duly convicted of the offence. 65.As regards para. 61(b) above, to impose a duty on the part of internet discussion forum hosts to monitor the forum messages would render this defence either effectively otiose or (at least) render it difficult to establish. Because of the last of the 3 ingredients summarized by Gatley (see para. 58 above), any such duty would have to be a duty to act reasonably and it would be breached if the hosts:-
66.In both instances, such a duty would entail a need for extensive resources on the part of the hosts. Further, because such a duty is editorial in nature, it would involve potentially difficult value judgement (even for people with legal training). Further, for these reasons, imposing such a duty is also not consistent with the view stated in para. 41, 42 and 52 to 53 above. 67.As regards para. 61(c) above, I do not consider there to be sufficient evidence that the defendants knew their discussion forum was of a character likely to contain libel. The evidence shows the discussion forums to be one of the most popular in Hong Kong, with numerous messages posted. The messages relevant to the actions were but only some of the total number of messages. The originators of the various defamatory statements have different pseudo-names. 68.For the above reasons, I consider the above criticisms to be irrelevant. (a) The Mar 2007 Words 69.The relevant facts are again largely undisputed. The Mar 2007 words were posted on 27 and 28 March 2007. The plaintiffs informed the defendants in December 2008 (it is accepted by the defendants at trial they were brought to their attention by 10 December 2008). 70.The Mar 2007 words were only removed from the discussion forum in about late August 2009 (about 8 months after the defendants knew of the same). The reason given in the amended defence for the time taken to remove the Mar 2007 words is:-
In their written closing submissions, the defendants claim:-
71.As the defence fairly accepts, there is no evidence to support the above-quoted averment and submission. 72.It took the defendants effectively 8 months or so to remove the Mar 2007 words. In view of the complete lack of evidence showing good reasons for not doing so earlier, I find that there has been undue delay on the defendants’ part. I also infer that such a delay was caused by the defendants’ negligence. 73.I therefore conclude that the defendants have failed to establish this defence in relation to the Mar 2007 words. (b) The Oct 2008 Words 74.The Oct 2008 words were posted on 24 October 2008. They were removed before the commencement of the Oct 2008 action. 75.The defence witness explained the said removal in his testimony. He said that the plaintiffs sent a letter dated 24 October 2008 via e-mail to the defendants at about 11:53 am on 27 October 2008 and the defendants’ staff replied at about 3:20 pm that the Oct 2008 words would be removed. They were removed before the commencement of the Oct 2008 action on 28 October 2008 (about 5 days after the publication of the Oct 2008 words (25 October was a Saturday and 26 October was a Sunday)). 76.The defendants pointed out in their written closing submission the testimony of the defence witness has not been challenged in this respect. Further, the testimony summarized above was supported by three contemporaneous e-mails:-
Irrespective of whether the said testimony is disputed by the plaintiffs, having considered it together with the said e-mails, I consider the testimony to be truthful and reliable. 77.Hence, I accept the defendants’ claim that they only became aware of the Oct 2008 words on 27 October 2008. The time taken for them to remove the Oct 2008 words was reasonable. 78.I find the defendants were not negligent in relation to the Oct 2008 words and thus have been able to establish this defence. (c) The Jan 2009 Words 79.The Jan 2009 words were posted on 21 January 2009 at 11:25 pm and they were removed on 22 January 2009 at 11:40 am. 80.I also find the defendants not negligent in relation to the Jan 2009 words and have been able to establish this defence. CONCLUSION ON LIABILITY 81.By reason of the matters set out above, I find the plaintiffs have been able to establish liability against the defendants in relation to the Mar 2007 words but not in relation to the Oct 2008 words. 82.I find the plaintiffs to have failed to establish liability in relation to the Mar 2009 action. It is therefore dismissed. QUANTUM OF DAMAGES 83.Despite the industry of counsel for the plaintiffs, no direct assistance can be provided by earlier local decisions in this regard; most awards were made in the context of the conventional media, such as magazines, newspapers or radio broadcast. 84.The plaintiffs seek:-
for the personal plaintiff, and general damages in the sum of $150,000 for each corporate plaintiff in respect of each of the defamatory statements. 85.I concluded that liability has only been established in relation to the Mar 2007 words. It is the plaintiffs’ case those words were only defamatory of the 1st and 2nd plaintiffs of the Oct 2008 action: para. 8, plaintiffs’ written closing. 86.It is clear from the messages posted onto the defendants’ discussion forum (including the Mar 2007 words) the plaintiffs have been perceived as one and the same group of companies. In view of the plaintiffs’ background, there is good basis for such perception. 87.The defendants did not become involved in the defamation as its originator. As stated above, they were found liable because of their negligence. I also disagree with the plaintiffs the defendants’ conduct at trial warrants enhancing the amount of damages and/or awarding aggravated damages. 88.In these circumstances, I consider a single award of $100,000 for both of the 1st and 2nd plaintiffs of the Oct 2008 action to be appropriate. No aggravated damages has been sought, and none will be awarded. 89.Accordingly, judgment in the Oct 2008 action is so entered. OTHER MATTERS 90.The trial of the actions commenced on 4 January 2011. Defence counsel indicated shortly afterwards the defendants wish to re-amend their amended defence. That application was made on 5 January 2011 and was opposed by the plaintiffs. I granted leave to do so and indicated the reasons for doing so would be given together with the judgment in the actions. 91.Para. 6(2) of the amended defence averred:-
The original defence was filed in March 2009 whereas the amendment (which included the above averment) was made in November 2009. 92.Defence counsel submitted that the above averment was wrong. They sought leave to re-amend it to read:-
93.Defence counsel explained that the amended plea was caused by a misunderstanding. In this connection, they referred to, and relied on, the e-mails set out in para. 76(a) to (c) above. Further, insofar as the plaintiffs argued that the proposed re-amendment amount to resiling from an admission, the defendants asked the court to note that the proposed re-amendment could only benefit the plaintiffs rather than prejudice them: with the re-amendment, it would mean that the defendants removed the Mar 2007 words only in August 2009 when they became aware of them in December 2008 (instead of January 2009). 94.In short, I agreed with the defendants and exercised my discretion to give leave to re-amend. COSTS 95.In view of the liability for the conclusions reached above, it is likely both parties will want to argue on the liability for the costs of the actions. For this purpose, I propose to proceed by way of written submissions without the need for yet another hearing. 96.The following directions are given:-
Any party wishing to proceed by way of a hearing (despite the proposal given above to the contrary) should include submissions on that aspect in the above written submissions.
Mr Gerard McCoy, SC leading Mr Lawrence K F Ng, instructed by Messrs Iu, Lai & Li, for the Plaintiffs in both cases Mr John Reading, SC leading Ms Elizabeth Herbert, instructed by Messrs Oldham, Li & Nie, for the Defendants in both cases Please refer to CACV53/2011 for the relevant appeal(s) to the Court of Appeal. | |||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCA 2140/2008