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.
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