Defamation: libel; respondents providers,
administrators, and managers of internet discussion forum; defamatory
statements posted by users of forum; extent to which respondents should be held
liable for statements; whether respondents were publishers of the statements;
whether common law defence of innocent dissemination applied; Thompson v
Australian Capital TV Ltd (1996) 186 CLR 574 considered; Byrne v Deane [1937] 1
KB 818, which concerned the liability of an occupier for posts on a notice
board on premises, not applicable to internet discussion forums; respondents
played an active role in encouraging and facilitating posts; respondents were
publishers; whether respondents were main or subordinate publishers;
respondents were not aware of statements until some time after they were
posted; respondents could not be held to authorise statements, as they had
rules about appropriate content, and deleted inappropriate posts; ‘knowledge’
and ‘control’ criteria used to identify whether respondent a main publisher;
internet forum provider should not be treated as having knowledge of the
content of every message; respondents subordinate publishers; effect of
acquiring knowledge of post; defence should still apply where subordinate
publisher promptly took all reasonable steps to remove content as quickly as
possible; defence of innocent dissemination proved; appeal dismissed
第一及第三上訴人: Oriental Press Group Ltd
第二及第四上訴人: Oriental Daily Publisher Ltd
第五上訴人: The Sun News Publisher Ltd
第六上訴人:Ma Ching Kwan (馬澄坤)
第一答辯人: Fevaworks Solutions Ltd
第二答辯人:Fevaworks Solutions Ltd以Alive! Media and
Communications Ltd之名營業
第三答辯人: Alive! Media and Communications Ltd
主審法官:終審法院首席法官馬道立、終審法院常任法官陳兆愷、終審法院常任法官李義、終審法院非常任法官烈顯倫及終審法院非常任法官紀立信
判決:本院一致裁定駁回上訴
判案書:由常任法官李義頒發主要判詞、非常任法官烈顯倫頒發同意判詞
聆訊日期:2013年6月5及6日
判案書日期:2013 年7月4日
法律代表:
資深大律師唐明治先生及大律師吳港發先生(由姚黎李律師行延聘)代表各名上訴人;
資深大律師李定國先生及大律師Elizabeth Herbert 女士(由高李嚴律師行延聘)代表各名答辯人。
摘要:
各名答辯人是一個網站的提供者、管理者和經理人,該網站提供的討論區是香港最受歡迎的互聯網討論區之一。該討論區的用戶分別於2007、2008及2009年發表三段涉及各名上訴人,即兩份暢銷日報的出版人、該等出版人所屬的集團、及該集團的主席的誹謗性陳述。答辯人最初並未察覺上述2007及2008年的陳述,但他們在上訴人作出投訴後將之刪除。2007年的陳述乃於上訴人投訴後八個多月後被刪除;而2008年的陳述乃於上訴人投訴後三個半小時後被刪除。而2009年的陳述是在發表後約12小時後由答辯人親自發現並立即將之刪除。
各名上訴人對各名答辯人提出永久形式誹謗的訴訟,由高等法院原訟法庭法官在沒有陪審團的情況下審訊。原審法官就2007年的陳述裁定上訴人勝訴,答辯人須就該陳述向上訴人支付100,000元,但駁回上訴人就2008及2009年的陳述的申索。上訴法庭維持原判,並裁定各名答辯人是在不知情的情況下發佈該等2008及2009年的陳述。各名答辯人對有關2007年的陳述的裁決並無異議。各名上訴人向終審法院提出的上訴被駁回。
本院獲提請審議互聯網討論區的提供者是在什麼情況下須對其用戶發表的誹謗性陳述負上法律責任。本院尤其須裁定上述互聯網討論區的提供者是否在法律上被視為該等誹謗性言論的“發佈人”,及 “不知情傳播”這項普通法免責辯護是否適用於他們。
本院認爲一名 “附屬發佈人”subordinate distributor 的情況有別於一名處所佔用人被未經授權人士使用其告示板或牆壁張貼誹謗性陳述的情況。一名知情並積極參與發佈涉案文章的附屬發佈人如要免責,則必須證明儘管他已採取一切合理的謹慎措施,他並不知道該篇文章包含帶永久形式誹謗的陳述。佔用人則不然,他並無參與任何分發安排,而只是被施加冒犯性的告示或塗鴉。除非該項帶永久形式誹謗的陳述獲准留在原處,而情況顯示有理由推斷他必已追認該項陳述,否則他毋須負法律責任。
本院裁定,互聯網討論區提供者非如告示板擁有者一般,他並非首先或主要的發佈人,但他符合附屬發佈人資格,有權倚據“不知情傳播”這項免責辯護。
本院裁定各名答辯人就 2008及2009年的陳述已確立上述免責辯護。他們對每段言論的內容並未知悉;他們對有關發佈過程並無行使編輯方面或全面的控制權;因此他們實際上並無能力或機會阻止發佈。當他們獲悉該等誹謗性言論後即合理謹慎地行事,迅速將之刪除。
FACV No. 15 of 2012
IN THE COURT OF FINAL APPEAL OF
THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 15 OF 2012 (CIVIL)
(ON
APPEAL FROM CACV NO. 53 OF 2011)
(ON
APPEAL FROM HCA NO. 2140 OF 2008)
_____________________
Between :
oriental
press group limited
ORIENTAL DAILY PUBLISHER LIMITED
| |
- and -
|
|
fevaworks
solutions limited
_____________________
|
(ON APPEAL FROM HCA NO. 597 OF 2009)
Between :
oriental
press group limited
ORIENTAL DAILY PUBLISHER LIMITED
THE SUN NEWS PUBLISHER LIMITED
MA CHING KWAN
|
|||
- and -
|
|||
fevaworks
solutions limited trading as
ALIVE!
MEDIA AND COMMUNICATIONS
ALIVE! MEDIA AND COMMUNICATIONS LIMITED
____________________
|
|||
Before :
|
Chief Justice Ma, Mr Justice Chan PJ,
Mr Justice Ribeiro PJ, Mr Justice Litton NPJ and
Mr Justice Gleeson NPJ
|
||
Dates of Hearing:
|
5-6 June 2013
|
||
Date of Judgment :
|
4
July 2013
|
||
J U D G M E N T
|
Chief Justice Ma:
1.
I agree with the judgment of Mr
Justice Ribeiro PJ. The appeal should be
dismissed.
Mr Justice Chan PJ:
2.
I agree with the judgment of Mr
Justice Ribeiro PJ.
Mr Justice Ribeiro PJ:
3.
The respondents in this appeal are the providers,
administrators and managers of a website which hosts one of the most popular
internet discussion forums in Hong Kong.
The appellants have sued them for libel in respect of defamatory
statements posted by certain users of that forum. The defamatory character of those statements
is not in dispute. Nor is any libel
defence such as privilege or fair comment relevant. What it falls to the Court to consider is the
extent to which the providers of an internet discussion platform may be held
liable for the posting of defamatory statements by its users. In particular, issues arise as to whether and
to what extent such platform providers are in law to be regarded as publishers
of the defamatory postings and as to whether the common law defence of innocent
dissemination is applicable.
A. The actions and the defamatory statements
4.
The statements complained of were posted on the forum in
three batches and resulted in two actions being brought against the
respondents.[1] The first action was brought by Oriental
Press Group Limited and Oriental Daily Publisher Limited, the latter company being
the registered proprietor, publisher and printer of a popular Chinese daily
newspaper known as the “Oriental Daily News”.
The former is a publicly listed company which owns the latter. That action is brought against Fevaworks
Solutions Limited.
5.
Those three companies are also parties to the second action
which involves as additional plaintiffs The Sun News Publisher Limited and Mr
Ma Ching Kwan. The Sun News Publisher
Limited is the registered proprietor, publisher and printer of “The Sun”,
another popular Chinese daily within the Oriental group. Mr Ma is the honorary chairman of the listed
company. The second action is brought
both against Fevaworks Solutions Limited and Alive! Media & Communications
Limited, sued jointly as the providers, administrators and managers of the
relevant website. I shall refer to the
plaintiffs and defendants in the two actions collectively as the appellants and
the respondents respectively.
6.
The first action,[2]
which was commenced on 28 October 2008, relates to two batches of defamatory statements,
the first having been posted on 27 and 28 March 2007 (“the 2007
statements”) and the second on 24 October 2008 (“the 2008 statements”). Initially, the action only concerned the 2008
statements which first came to the appellants’ attention on the day they were
posted. As Chung J found at the trial,
those statements contained the defamatory imputations that the appellants were
involved in drug trafficking and money laundering; that they were involved in
illegal and immoral activities and were corrupt, illegal, immoral and
unethical. The appellants’ solicitors
wrote to the respondents on the day that the statements appeared on the website,
threatening legal proceedings. The
respondents were consequently alerted to the existence of the offending words
on 27 October 2008 and removed them from the website some three and a half hours
after being so informed.
7.
Although posted much earlier, the appellants did not know
about the 2007 statements until 14 November 2008 and, on the Judge’s
finding, those statements were not brought to the respondents’ attention until
10 December 2008. The 2007
statements related to the murder of a newspaper vendor in 1999[3]
and involved the imputation that the appellants had deliberately avoided
reporting the trial and conviction of the men arrested and were thus somehow
connected with or accomplices in the crime.
Those statements were not removed from the website until August 2009,
more than eight months after the respondents had been informed of their existence.
The cause of action arising out of the 2007 statements was added by amendment
to the first action. In the light of the
delay in taking down the offending words, the Judge found that there was no
defence to the action based on the 2007 statements and awarded the appellants damages
of HK$100,000.00 in respect thereof.
8.
The second action[4]
concerns defamatory postings made on the website on 21 January 2009 (“the
2009 statements”). They contained
the imputations that the appellants were founded on drug money, were involved
in drug trafficking, money laundering and immoral activities and were corrupt,
illegal, immoral and unethical. They
also alleged that Mr Ma was a member of a family involved in drug trafficking
and a member of or associated with the 14K triad society. Those words were discovered by the respondents
on 22 January 2009, about 12 hours after they had been posted and thereupon
immediately removed.
9.
It is not disputed that the respondents were unaware of the
existence of the offending postings until informed of them by the appellants in
the case of the 2007 and 2008 statements, and until the respondents
themselves discovered the 2009 statements.
10.
The two actions against the respondents were tried together
by Chung J without a jury. His Lordship’s award[5]
regarding the 2007 statements was not challenged by the respondents either in
the Court of Appeal or in this Court.
However, he dismissed the appellants’ claims in both actions in respect
of the 2008 and 2009 statements and his decision was upheld by the Court of
Appeal both as to liability and damages.[6]
11.
Leave to appeal was granted by the Court of Appeal on the
basis that the following question of great general or public importance arises:
“In respect of
statements defamatory of a third party posted on a commercial website which may
be and were accessed by another party, whether the defence of innocent
dissemination or any other defence is available to a commercial website host,
and if so, under what circumstances may such defence be established or
defeated?”
B. The forum’s operation
12.
The forum was known as the Hong Kong Golden Forum with the URL[7]
addresses http://forum7.hkgolden.com and http://forum4.hkgolden.com. The forum had different discussion “channels”
catering for various interests of users, including channels concerning computer
products and software, games, photography, academic matters, music, finance,
sports, entertainment, mobile phones and leisure. The leisure channel[8]
was the most popular. Use of the forum
was free, the respondents relying on advertising to generate income.
13.
Anyone could browse the website but only persons who had
registered as members were able to post messages on the forum. Someone wishing to register had to provide
his or her name and certain other details, including a traceable e-mail address
with a recognised internet service provider (“ISP”), rather than a more
anonymous e-mail address from a web-based provider such as Gmail, Hotmail or
Yahoo. Membership was also conditional
on accepting the rules of the forum which included a prohibition against
postings with objectionable content, including defamation, pornography,
harassment and infringing intellectual property rights. A person who successfully registered as a
member adopted a forum nickname and would automatically be assigned a
password. A member who violated the
rules might have his membership suspended or terminated.
14.
Although the evidence indicated that the details purportedly
provided by persons registering as members were very often obviously fictitious,
the condition that they provide an e-mail address with a recognised ISP was of
some significance. In the present case,
the appellants obtained Norwich Pharmacal
orders which led to disclosure by the respondents of certain details of the
originators of the offending statements including their registered e-mail
addresses. It was through those e-mail
addresses that the respondents (with the aid of Court orders) were able to trace
and identify the persons concerned. The
Court was told by Mr Michael Thomas SC[9]
that the appellants have reached financial settlements with the originators whom
it chose to pursue.
15.
There was very considerable traffic on the website. Members of the forum would develop what are
known as discussion “threads” involving postings expressing a user’s views on a
particular topic, leading to a sequence of postings by other users with their
views and comments on that topic. The
evidence was that there could be 30,000 users online at any given time and that
during peak hours, over 5,000 postings could be made each hour. There was thus no attempt to edit or filter postings
before they appeared on the forum.
However, two administrators were employed to monitor forum discussion
for six to eight hours per day, their job being to remove objectionable content
by deleting objectionable postings or discussion threads and to field
complaints. Forum postings could not be downloaded
and a deleted posting no longer exists in “cyberspace” and can no longer be
accessed by anyone. Where infraction of
the rules by a user was frequent, the administrators could suspend or terminate
that user’s account and so his ability to post messages on the forum.
C. Libel and publication
16.
The tort of libel has as its aim the protection of a person’s
reputation. A person’s reputation
consists of what others think of him or her.
That reputation is damaged when a defendant publishes or communicates to
a third person a defamatory statement (that is, a statement tending to lower someone
in the estimation of right-thinking members of society generally[10])
about the person defamed. It follows
that the act of publication is a fundamental constituent of the tort.
17.
In seeking to decide whether and to what extent the
respondents should in law be treated as publishers of the defamatory statements
posted on the forum, it is necessary to examine the established common law
rules on what constitutes “publication” of a libel.
18.
As Isaacs J explained, “To publish a libel is to convey by
some means to the mind of another the defamatory sense embodied in the vehicle ...”[11] It is a bilateral act, as was pointed out in Dow Jones & Co Inc v Gutnick:
“Harm to reputation
is done when a defamatory publication is comprehended by the reader, the
listener, or the observer. Until then,
no harm is done by it. This being so it
would be wrong to treat publication as if it were a unilateral act on the part
of the publisher alone. It is not. It is a bilateral act – in which the publisher
makes it available and a third party has it available for his or her
comprehension.”[12]
19.
Until mitigated by the common law defence of innocent
dissemination which evolved in the late nineteenth century, liability for
publishing a libel was strict and could lead to harsh results. A person was held liable for publishing a
libel if by an act of any description, he could be said to have intentionally assisted
in the process of conveying the words bearing the defamatory meaning to a third
party, regardless of whether he knew that the article in question contained
those words. [13]
Thus, a
textbook published in 1891[14]
stated:
“The
term published is the proper and technical term to be used in the case of
libel, without reference to the precise degree in which the defendant has been
instrumental to such publication; since, if he has intentionally lent his
assistance to its existence for the purpose of being published, his
instrumentality is evidence to show a publication by him.”
“... the breadth of
activity captured by the traditional publication rule is vast. In R v
Clerk (1728), 1 Barn KB 304, 94 ER 207, for example, a printer’s servant,
whose only role in an act of publication was to ‘clap down’ the printing press,
was found responsible for the libels contained in that publication, despite the
fact that he was not aware of the contents (p 207).”
21.
While (as in the 1891 text) the traditional rule is sometimes
expressed as requiring the publication to a third person to be “intentional”,[16]
that reference is generally directed at situations where the defendant who
authored the defamation does not intend its publication to a third person but
where publication takes place without negligence on his part. Thus, where a defendant’s private diary
containing defamatory imputations is lost without negligence on his part and
made public by another person or, to take an example given by Lord Esher MR,
where “the writer of a letter locks it up in his own desk, and a thief comes
and breaks open the desk and takes away the letter and makes it contents
known...,”[17] no
intentional publication by the author occurs. The requirement of intention in this sense did
not narrow the width nor dilute the strictness of the traditional rule.
22.
Moreover, publication could (and still can) be established
against a person who is vicariously liable for his servants’ acts of publication
or for acts of publication which he has authorised. All who participated directly or vicariously in
the publication were held jointly and severally liable for the entire damage
suffered by the plaintiff, regardless of the degree of responsibility each had
for the publication. As Gatley points
out:
“The
person who first spoke or composed the defamatory matter (the originator) is of
course liable, provided he intended to publish it or failed to take reasonable
care to prevent its publication.
However, 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 is qualified by [the common law defence of innocent
dissemination]...”[18]
“In accordance with
general principle, all persons who procure or participate in the publication of
a libel, and who are liable therefor, are jointly and severally liable for the
whole damage suffered by the claimant.”[19]
23.
Thus, under the strict rule, publication of a libel, for
instance by a newspaper, meant that the journalist who was the originator of
the article; the editor who accepted and prepared it for publication; the
printer who set the type and printed it; the wholesale distributor who
disseminated it; the newsagents who sold it to the readers; and the newspaper’s
proprietor who published it through its employees or agents were all jointly
and severally liable for the damage to the plaintiff’s reputation.
D. The common law defence of innocent
dissemination
24.
The strictness of the publication rule plainly called for some
relaxation. The common law defence of
innocent dissemination was developed to that end. It was a defence which became established in
English law as a result of the decisions in Emmens v Pottle[20]
in 1886 and Vizetelly
v Mudie’s Select Library Limited in 1900.[21]
25.
It had previously been well-established
that the sale of a newspaper which contained a libel constituted a publication
of that libel.[22] The defendants in Emmens v Pottle were newsvendors who were sued for libel on the
basis of such a sale. However, the jury
gave judgment for the defendant, finding that they did not know and had no
reason to suppose that the newspaper sold contained or was likely to contain a
libel. On the basis of such findings,
Lord Esher MR concluded:
“... the case is
reduced to this, that the defendants were innocent disseminators of a thing
which they were not bound to know was likely to contain a libel. That being so,
I think the defendants are not liable for the libel.”[23]
26.
That was a robust repudiation of the strictness of the
traditional rule, his Lordship adding:
“If they were
liable, the result would be that every common carrier who carries a newspaper
which contains a libel would be liable for it, even if the paper were one of
which every man in England would say that it was not likely to contain a libel.
To my mind the mere statement of such a result shews that the proposition from
which it flows is unreasonable and unjust. The question does not depend on any
statute, but on the common law, and, in my opinion, any proposition the result
of which would be to shew that the Common Law of England is wholly unreasonable
and unjust, cannot be part of the Common Law of England. I think, therefore,
that, upon the findings of the jury, the judgment for the defendants is right.”[24]
27.
The elements of the defence are usually taken to be as stated
in the judgment of Romer LJ in Vizetelly
v Mudie’s Select Library Limited,[25]
where his Lordship formulated the principles as follows:
“The
result of the cases is I think that, as regards a person who is not the printer
or the first or main publisher of a work which contains a libel, but has only
taken, what I may call, a subordinate part in disseminating it, in considering
whether there has been publication of it by him, the particular circumstances
under which he disseminated the work must be considered. If he did it in the ordinary way of his
business, the nature of the business and the way in which it was conducted must
be looked at; and, if he succeeds in shewing (1) that he was innocent of any
knowledge of the libel contained in the work disseminated by him, (2) that
there was nothing in the work or the circumstances under which it came to him
or was disseminated by him which ought to have led him to suppose that it
contained a libel, and (3) that, when the work was disseminated by him, it was
not by any negligence on his part that he did not know that it contained the
libel, then, although the dissemination of the work by him was prima facie
publication of it, he may nevertheless, on proof of the before-mentioned facts,
be held not to have published it. But
the onus of proving such facts lies on him, and the question of publication or
non-publication is in such a case one for the jury.”
28.
In Vizetelly, the
defendants operated a circulating library and were sued for lending out and selling
copies of a book which, unknown to them, contained a libel on the
plaintiff. The defendants pleaded but
failed to establish the defence of innocent dissemination since they ought to
have known of the libel but had negligently failed to take note of
advertisements placed in the trade press by the commercial publishers of the
book (who had been successfully sued by the plaintiff) recalling all copies of
the book so that the offending page could be replaced.
29.
The defence thus has two important features. First, not every person involved in the
process of publication can rely on it.
It is not available to “the printer or the first or main publisher of a
work which contains a libel” but is confined to persons who, in the ordinary
course of business, play “a subordinate part in disseminating it”. Secondly, for this second class of persons, it
replaces the strict liability rule with a rule which imposes liability on the
basis that the person playing the subordinate role knew or ought by the
exercise of reasonable care, in the circumstances in which the work came to him
or was disseminated, to have known that the article disseminated contained defamatory
material. It places the onus on such subordinate
disseminators to prove that they did not know that the article contained a
libel and that their lack of knowledge was not due to their own lack of care.
30.
As Gaudron J pointed out in Thompson v Australian Capital TV Ltd,[26]
the defence has been adopted not only in subsequent English cases, but also in
Canada, Australia and New Zealand. In
some jurisdictions, statutory defences along the same lines have been
enacted. Thus in England, Lord McKay of
Clashfern LC introducing the bill which became section 1 of the Defamation Act
1996, described it as “a modern equivalent of the common law defence of
innocent dissemination”.[27] Hong Kong has not introduced such legislation
and the defence which concerns us is that which exists at common law.
31.
Although in both Emmens and Vizetelly,[28]
it was suggested that successful invocation of the innocent dissemination
defence leads to the defendant being deemed not to have published the libel at
all, I respectfully consider the better view to be that stated by Duncan and
Neill in an earlier edition of their work,[29]
noted by Brennan CJ, Dawson and Toohey JJ in their joint judgment in Thompson v Australian Capital TV Ltd,[30]
namely, that:
“... it would be more accurate to say that any disseminator of a libel
publishes the libel but, if he can establish the defence of innocent
dissemination, he will not be responsible for that publication.”
32.
The rule that persons relying on the defence are liable
unless they discharge the onus of proving lack of knowledge and the absence of
negligence indicates that they must in principle be publishers, albeit in a
subordinate role, for otherwise they could not be held liable at all since a
fundamental constituent of the tort would be missing. On this basis, it may perhaps be preferable
to refer to those playing a subordinate role in the publication process as
“subordinate publishers” rather than “subordinate distributors” as they are
often called.
33.
In the present appeal, one of the main issues dividing the
parties is whether the respondents are eligible to rely on the innocent
dissemination defence or whether they are first or main publishers to whom it
does not apply.
E. Notice
boards and graffiti
34.
A further set of legal principles which featured prominently
at the hearing of this appeal arises out of the line of cases invoked by the
respondents involving actions brought against the owners or occupiers of premises
in which unauthorised third parties had affixed defamatory statements on a
notice board or scrawled such statements as graffiti on its walls.
35.
That line of authorities begins
with the decision of the English Court of Appeal in Byrne v Deane.[31] There,
a libel action was brought against the proprietors of a golf club in respect of
a typewritten sheet of paper containing an allegedly defamatory statement set
in verse which someone pinned onto a notice board visible to members using the
club. The relevant question was whether
the club’s proprietors could be held to have acted as publishers of that
statement. It was a rule of the club that
the posting of notices in the club premises without the consent of the club secretary
was not allowed. One of the defendants
was the club secretary. She admitted that
she had read the statement but allowed it to remain on the notice board “for
some days”[32] because
she could see no harm in it.
36.
All three Judges held that there had been publication by her. Greer LJ[33]
so concluded on the basis that she and her husband (the other defendant), being
proprietors of the establishment:
“...by allowing the
defamatory statement, if it be defamatory, to rest upon their wall and not to
remove it, with the knowledge that they must have had that by not removing it
it would be read by people to whom it would convey such meaning as it had, were
taking part in the publication of it.”
37.
Slesser LJ thought that only the secretary (and not her
husband) had published the defamation by adopting the statement posted on the
notice board:
“There are cases
which go to show that persons who themselves take no overt part in the
publication of defamatory matter may nevertheless so adopt and promote the
reading of the defamatory matter as to constitute themselves liable for the
publication. ... I think having read it, and having dominion over the walls of
the club as far as the posting of notices was concerned, it could properly be
said that there was some evidence that she did promote and associate herself
with the continuance of the publication in the circumstances after the date
when she knew that the publication had been made.”[34]
38.
Greene LJ pointed out that attaching the notice to the club’s
walls was a trespass and that both defendants as proprietors had ample powers
to remove it.[35] He stressed that whether what had occurred
amounted to publication was a question of fact which depended on whether the circumstances
justified the inference that the defendants had assumed responsibility for the
continued presence of the statement on their notice board:
“It may very well
be that in some circumstances a person, by refraining from removing or
obliterating the defamatory matter, is not committing any publication at all. In other circumstances he may be doing so. The test it appears to me is this: having
regard to all the facts of the case is the proper inference that by not
removing the defamatory matter the defendant really made himself responsible
for its continued presence in the place where it had been put?”[36]
39.
His Lordship gave as an example of a situation where no such
inference could be drawn the case where:
“...somebody with a
mallet and a chisel carved on the stonework of somebody's house something
defamatory, and carved it very deeply so that the removal of it could only be
effected by taking down the stonework and replacing it with new stonework. In a
case of that kind it appears to me that it would be very difficult, if not
indeed impossible, to draw the inference that the volition of the owner of the
house had anything to do with the continued presence of that inscription on his
stonework. The circumstance that to remove it would require very great trouble
and expense would be sufficient to answer any such aspersion.”
40.
Applying that approach to the case at hand, Greene LJ
considered it proper to infer that the defendants had consented to the
continued presence of the statement on the notice board and so were potentially
liable as publishers:
“The defendants,
having the power of removing it and the right to remove it, and being able to
do it without any difficulty at all, and knowing that members of the club when
they came into the room would see it, I think must be taken to have elected
deliberately to leave it there. The
proper inference, therefore, in those circumstances it seems to me is that they
were consenting parties to its continued presence on the spot where it had been
put up. That being so it seems to me
that they must be taken to have consented to its publication to each member who
saw it.”[37]
41.
The second case cited in this line of authority is the
decision of the Court of Appeal of California in Isabelle Hellar v Joe Bianco.[38]
This involved a defamatory graffito on
the wall of the men’s lavatory in the defendant’s tavern which imputed that the
plaintiff was “an unchaste woman who indulged in illicit amatory ventures”,
supplying her telephone number. When
alerted to its existence, her husband telephoned the bartender and demanded
that he remove it within 30 minutes. The
bartender said he was too busy to do so but would get round to it in due
course. The plaintiff sued the owners of
the tavern for libel but she was non-suited at first instance. The Court of Appeal reversed the Judge,
holding that it was a case which ought to be left to the jury. It cited Byrne
v Deane for the theory that “by knowingly permitting such matter to remain
after reasonable opportunity to remove the same the owner of the wall or his
lessee is guilty of republication of the libel”, provided that the plaintiff
was able to introduce “evidence tending to show that respondents adopted the defamatory
matter or republished it”.[39] The Court of Appeal held that it was “a
question for the jury whether, after knowledge of its existence, respondents
negligently allowed the defamatory matter to remain for so long a time as to be
chargeable with its republication, occurring when the husband and the group
with him visited the rest room and saw the writing.”[40]
42.
The third case, Urbanchich
v Drummoyne Municipal Council,[41]
contains a helpful analysis by Hunt J of the Supreme Court of New South Wales. It was the trial of a preliminary issue as to
“the capacity of the plaintiff’s case [as pleaded] to establish his allegation
that the second defendant had published the matter complained of”. The plaintiff was the leader of an extreme
right wing group who sued, among others, the Urban Transit Authority (the
second defendant) for libel on the basis that posters bearing photographs
purporting to show him in the company of Adolf Hitler and of others in Nazi
uniforms had been glued onto certain bus shelters controlled by the Authority. His solicitors asked the Authority to remove
them but the posters remained in place for at least a month. Relying on Byrne v Deane and Hellar v
Bianco, the plaintiff argued that he merely needed to prove notice to the
Authority and its failure to comply with his removal request within a
reasonable time to establish publication.
Hunt J rejected that argument, stating:
“In a case where
the plaintiff seeks to make the defendant responsible for the publication of
someone else's defamatory statement which is physically attached to the
defendant's property, he must establish more than mere knowledge on the part of
the defendant of the existence of that statement and the opportunity to remove
it. According to the authorities, the
plaintiff must establish that the defendant consented to, or approved of, or
adopted, or promoted, or in some way ratified, the continued presence of that
statement on his property so that persons other than the plaintiff may continue
to read it - in other words, the plaintiff must establish in one way or another
an acceptance by the defendant of a responsibility for the continued
publication of that statement.”[42]
43.
Hunt J therefore explained the Byrne v Deane rule as one which resulted in the occupier of the
premises being treated as a publisher of the libel only if the facts, including
a failure to remove the offending statements within a reasonable time of
becoming aware of their existence, justified the inference that the occupier
had consented to or adopted the defamatory statement. His Honour therefore held that the pleaded
case, if duly proved, was:
“... capable of
amounting to the publication by the second defendant of those posters provided
that the jury also draws the inference from such conduct that the second defendant
had in fact accepted a responsibility for the continued publication of those
posters.”[43]
44.
The Byrne v Deane line
of cases may therefore be viewed as authority for the following propositions:
(a)
Where a third person writes or affixes a statement defamatory
of the plaintiff on the occupier’s property without the occupier’s knowledge,
the occupier is not treated as a publisher of that statement prior to his
becoming aware of it.
(b)
Once the occupier discovers its existence, he may be treated
as a publisher but only if, having the power to do so, he does not remove or
obliterate the offending statement in circumstances which justify inferring as
a matter of fact that by his inaction he has consented to or ratified its
continued publication.
(c)
Where the occupier becomes aware of the libel but the
circumstances show that removal or obliteration is very difficult or very
expensive, the fact that the defamatory statement is not expunged may well not
justify the inference that it remains in place with his approval.
45.
The respondents seek to argue that their situation is analogous
to that of the golf club proprietors and that application of the notice board approach
exonerates them from liability.
F. The differences between the two sets of
principles
46.
It is important to appreciate the differences between the
principles which derive from the notice board line of cases and those which
constitute the innocent dissemination defence.
47.
As analysed above, the innocent dissemination defence is a
common law doctrine developed to mitigate the harshness of the strict
publication rule. While it does not
avail the first or main publishers it brings relief to subordinate publishers
who have knowingly participated in the process of disseminating the article concerned. The defence is therefore applicable to
persons who are admittedly publishers, although playing a subordinate role, allowing
them to be exonerated from liability if they discharge the burden of showing
that they did not know that the article which they had helped to disseminate
contained the offending content and that such lack of knowledge was not due to any
lack of reasonable care on their part.
48.
In contrast, the occupiers in the notice board and graffiti
cases have not in any sense assisted or participated in the originator’s publication
of the libel. These are not cases
involving anyone who has played a role in a scheme for distributing the
offending publication seeking relief from the strict rule. As Greene LJ pointed out in Byrne v Deane, the posting of the
defamatory verse on the club’s notice board was an act of trespass. A person who defaces an occupier’s walls with
graffiti prima facie does not do so with the approval or encouragement of the
occupier. What this line of cases
addresses are the conditions which must be satisfied before the occupier can be
regarded as having turned himself into a publisher of the libel. That occurs only if the plaintiff shows that the
occupier became aware of the libellous statement on his premises and allowed it
to remain in place in circumstances which justify the inference that he has
adopted or ratified its publication. If
the occupier was not aware or if the inference cannot properly be drawn, he
does not make himself a publisher of the trespassing inscription and is not liable
at all. These rules are therefore not
about relieving a person’s prima facie liability as a publisher but about
whether or not an occupier is constituted a publisher. Since it is about establishing the occupier’s
liability as a publisher (and not about a publisher establishing a defence),
the onus rests on the plaintiff.
49.
It follows from the distinctions drawn above that I do not
share the approach in some of the reported cases involving libel in an internet
context where the Byrne v Deane principles
appear to have been treated merely as a facet of the innocent dissemination
defence or the defence under section 1 of the Defamation Act 1996, in the
United Kingdom.[44]
G. The
Byrne v Deane principles inapplicable
50.
Once the nature of the Byrne
v Deane principles is grasped, it becomes clear that they do not apply to
internet platform providers like the respondents. The provider of a discussion forum is in a wholly
different position from that of the occupier of premises who is not in the
business of publishing or facilitating publication at all, but who has had imposed
on him the defamatory act of a trespasser.
51.
The respondents plainly played an active role in encouraging
and facilitating the multitude of internet postings by members of their
forum. As described in Section B of this
judgment, they designed the forum with its various channels catering for their
users’ different interests; they laid down conditions for becoming a member and
being permitted to make postings; they provided users browsing their website
access to the discussion threads developed on their forum; they employed
administrators whose job was to monitor discussions and to delete postings
which broke the rules; and they derived income from advertisements placed on
their website, a business model which obviously benefits from attracting as
many users as possible to the forum.
52.
The respondents were therefore, in my view, plainly
participants in the publication of postings by the forum’s users and in that
sense they were publishers from the outset, it being in issue whether they were
first or main publishers or merely subordinate publishers. I accept Mr Thomas SC’s submission that they
were in a substantively different position from the occupiers in the notice
board and graffiti cases. The relevant
question in the present case is whether, as publishers, the respondents are
entitled to rely on, and have established, the defence of innocent
dissemination, relieving themselves of the strict publication rule which would otherwise
be applicable. The question is not whether, originally being
non-publishers, they have, when fixed with knowledge of the defamatory postings,
demonstrated their consent to and adoption of those postings, turning themselves
into publishers.
53.
In this context, I respectfully part company with the reasoning
(adopted on an interlocutory basis) of the English Court of Appeal in Tamiz v Google Inc.[45] It is reasoning which proceeds on the basis
that successful invocation of the defence of innocent dissemination results in
the defendant being deemed not to have published at all. For the reasons previously given,[46]
I do not accept that premise. Nor am I
able to accept the distinction drawn between the notice board and graffiti
analogies, nor the suggestion that “the provision of a platform for blogs is
equivalent to the provision of a notice board”.[47] As indicated above, my view is that the
provider of an internet discussion platform similar to that provided by the
respondents falls from the outset within the broad traditional concept of “a
publisher”, a characteristic not shared by a golf club or other occupier who
puts up a notice board on which a trespassing message is posted.
54.
I pause to note in passing that there is rightly no
suggestion in the present case that the providers of a discussion platform like
the respondents should be regarded as “mere conduits” or “passive facilitators”
comparable to the Post Office or a telephone company, as has sometimes been
argued in certain internet cases.[48]
H. Publication and the internet
55.
The crucial questions in this appeal are therefore whether
the respondents are subordinate publishers entitled to rely on the common law
defence of innocent dissemination and, if so, whether they have, on the facts,
made out that defence. For these
questions to be properly addressed it is necessary to consider the nature of
publication on the internet in cases like the present.
56.
The distinction between the first or main publishers of a
work which contains a libel[49]
and subordinate publishers of that work, central to the innocent dissemination
defence, was developed in the era of mass communications in the print
medium. As we have seen, the defence was
designed to relieve from the strict publication rule, persons such as wholesalers,
distributors, booksellers, librarians, newsagents and the like. While such persons came within the very broad
traditional concept of “publication” since they intentionally participated in
distribution of the work, they were relieved of liability if they could show
that they did not know and could not with reasonable care have known the defamatory
content of the article they were disseminating.
57.
In the creation and distribution of such print publications,
the first or main publishers have or can readily acquire full knowledge of the
publication’s content before its release and are able to control and, if
necessary, prevent dissemination of such content. It involves what is sometimes called a
“one-to-many” model of mass communication.
The “one” – the entity which originates and publishes the work –
exercises editorial and general control over the publication process. Such an entity is denied the defence of
innocent dissemination.
58.
The same “one-to-many” model applies to radio and television
broadcasts, as illustrated by Thompson
v Australian Capital TV Ltd.[50]
That was a case which involved a
programme produced by one television channel (Channel 9) being broadcast live
to air by another (Channel 7). The
programme contained defamatory allegations, leading to an action against
Channel 7 which sought to raise the innocent dissemination defence on the basis
that it was a subordinate publisher of Channel 9’s programme. That defence was rejected on the basis that
Channel 7 had full control of how and when the programme was re-transmitted and
that its decision to broadcast it live was a decision taken as a main publisher
of that programme in its own right or as a main publisher by virtue of its having
authorised publication of the content originating from Channel 9. In their joint judgment, Brennan CJ, Dawson
and Toohey JJ stated:
“It is true that
Channel 7 did not participate in the production of the original material
constituting the program. But Channel 7
had the ability to control and supervise the material it televised. Channel 7's answer is that time did not permit
monitoring the content of the program between its receipt at Black Mountain and
its telecast from the studios in the Australian Capital Territory. That may well be so but it by no means
follows that Channel 7 was merely a conduit for the program and hence a
subordinate disseminator. It was Channel
7's decision that the telecast should be near instantaneous, a decision which
was understandable given the nature and title of the program[51]
but which was still its decision. ... In
those circumstances it would be curious if Channel 7 could claim to be a
subordinate disseminator because it adopted the immediacy of the program. It
did that for its own purposes, that is, to telecast to viewers in the
Australian Capital Territory and adjoining areas.”[52]
59.
In many instances, publications on the internet involve a
qualitatively different process, characterised by open, interactive,
“many-to-many” communications made and accessed on platforms provided by
internet intermediaries. This is
explained by Professor Jack M Balkin[53]
in the following terms:
“Mid-twentieth
century mass media – newspapers, television, cable and satellite – were
broadcasters, with one entity speaking to many people, and little opportunity
to speak back. Twenty first century mass
media, the so-called ‘new intermediaries’, are conduits, platforms, and
services. They do not necessarily broadcast but facilitate the speech of
others, and instead of being a one-to-many, there are many-to-many forms of
communication. They include not only
broadband companies, but also a whole range of online service providers, like
YouTube, Blogger, and their parent company Google; social networking sites like
MySpace and Facebook; Flickr, a photo-sharing service owned by Yahoo; and
virtual worlds like Second Life. These
online service providers offer platforms through which people can find content,
create new content, transform existing content and broadcast the content to
others ...
These new
intermediaries are conduits for other people’s speech and communications. Indeed, unlike twentieth century media, a key
element of their business models is providing widespread, democratized, access
to media and encouraging participation.
That is because their business models depend on user-generated content
...”
60.
In contrast, as Professor Balkin points out:
“The ‘traditional’
or ‘legacy’ media of newspapers, television, radio and cable television merge
content delivery with content production. They tightly control the messages
that they publish or broadcast.”
61.
The present respondents, as providers of the discussion
forum, belong to the class of the “new intermediaries” described above. They were not the originators of the defamatory
statements complained of. Those
statements were the result of their having facilitated the speech of others in a
forum hosting a large volume of many-to-many communications. Should the law of libel treat the respondents
as main or subordinate publishers?
I. Authorization
62.
Mr Thomas’s first argument in support of depriving the respondents
of the innocent dissemination defence is that they authorized the making of the
offending statements and should, on that basis, be treated as the first or main
publishers.
63.
Plainly, if a defendant knew the content of a defamatory
article and authorized or participated in its publication, that defendant would
be liable as a main publisher. As Eady J
pointed out in Bunt v
Tilley, “It is clear that the state of a defendant’s
knowledge can be an important factor”[54]
– a point to which I shall return. But in
the present case, it is not in dispute that the respondents were unaware of the
offending words until some time after they had been published on the forum. This is not a case where liability as
publisher can be founded upon vicariously liability for the publishing acts of
employees or upon rules for attributing liability to a corporation for the acts
of its organs or agents. How then could
it be said that the respondents “authorized” their publication? Mr Thomas’s answer is that since, for their own
commercial purposes, every posting on the forum was made with the respondents’
encouragement, they must be taken to have authorized each such posting,
whatever its content.
64.
It is of course possible in law that a principal might attract
liability where he authorizes his agent to publish whatever statement the
latter may choose to publish, including a defamatory statement. However, that would have to be established as
a matter of fact with evidence of some pre-existing arrangement between
principal and agent or later ratification.
An example where such evidence did exist can be found in Thompson v Australian Capital TV
Ltd,[55]
where Channel 7’s decision to re-broadcast the programme made by Channel 9
instantaneously was held to be evidence of Channel 7 authorising publication of
whatever content Channel 9 chose to put into that programme. Gaudron J reached that conclusion, stating:
“There can be no doubt that Channel 7 authorised the
retransmission to its viewers by its servants or agents of the material which
was defamatory of the appellant. Without its authority, the material would not
have been retransmitted. And it is sufficient that it authorised the
retransmission to its viewers of whatever was transmitted by Channel 9 without
regard to its contents. Having authorised its retransmission, Channel 7
published the material in question. It
cannot rely on the defence of innocent dissemination.”[56]
65.
That was of course a situation involving two television
channels, each in the business of making “one-to-many” broadcasts, with one
adopting the programme produced by the other.
The re-transmission was pursuant to a specific mutual arrangement which
was plainly evident.
66.
Nothing approaching such evidence exists in the present case. It is inherently improbable that the provider
of an internet platform facilitating many-to-many exchanges among users who may
post as many as 5,000 messages per hour should intend to confer a sweeping,
undifferentiated authorization on each of them to post whatever unlawful and
objectionable postings they may choose to post. The evidence is to the contrary. As noted above,[57]
the respondents laid down forum rules prohibiting postings with objectionable
content, including defamation, pornography, harassment and infringing
intellectual property rights and employed two administrators tasked with making
deletions and responding to complaints, having power to suspend or terminate
the accounts of repeated offenders. Those
rules may not have been efficiently or evenly enforced. But the stipulation of such rules with their
enforcement from time to time suffices to show that the platform providers were
not authorizing the publication of whatever forum users might choose to
post. It is one thing to encourage heavy
traffic to make the site attractive to advertisers, but another to conclude
that such encouragement involved authorising defamatory postings such as those
complained of. I am accordingly unable
to accept the appellants’ “authorization” submission.
J. A process of elimination
67.
Mr Thomas’s second argument for excluding the innocent
dissemination defence involves the contention that, by a process of elimination,
the respondents must have acted as the first or main publishers of the
offending statements since no other possible candidates exist. The respondents, as providers of the forum,
he submits, stored the defamatory postings on their server and conveyed them to
any person seeking to access the relevant discussion threads, there being no
other person involved in the act of publication. It was argued that the originators of the offending
postings are not relevant to the process of publication which should be seen as
involving only the forum provider and the person who accesses the offending
material. To illustrate this, Mr Thomas
invited the Court to consider the situation where the originator posts the
defamatory statement and, before anyone accesses it, the respondents’ server
crashes, making the posting inaccessible by anyone. Such a situation, he argued, shows that the
crucial publisher is not the originator, but the forum provider.
68.
It is clear law that internet material is published when and
where it is accessed or downloaded in comprehensible form. A person wishing to view on his computer the
webpage containing the relevant material, sends a request to the URL address of
the website on which that material is stored and, in response,
the webpage is transmitted to the requesting computer. When it is received and accessed or
downloaded in a form comprehensible to the person making the request, the
material is “published” for the purposes of libel law.[58]
69.
However, I do not accept that the originator and any other
persons “upstream” from the forum provider should somehow be ignored. As
Gatley points out:
“The person who
first spoke or composed the defamatory matter (the originator) is of course
liable, provided he intended to publish it or failed to take reasonable care to
prevent its publication.”[59]
70.
In Emmens
v Pottle,[60]
when
contrasting the position of a subordinate disseminator with that of a first or
main publisher, Lord Esher MR stated:
“The proprietor of a newspaper, who
publishes the paper by his servants, is the publisher of it, and he is liable
for the acts of his servants. The printer of the paper prints it by his
servants, and therefore he is liable for a libel contained in it. But the defendants did not compose the libel
on the plaintiff, they did not write it or print it; they only disseminated
that which contained the libel. The question is whether, as such disseminators,
they published the libel?”
71.
His Lordship was plainly indicating (by the words which I
have italicised) that if the defendants had composed or written the libel, they
would obviously have been liable as first or main publishers, but that since
they had not done so and had only disseminated the libel, it was necessary to
consider their position as subordinate publishers.
72.
Thus, a journalist is undoubtedly to be treated as the (or at
least, a) first or main publisher of
a newspaper article, having authored it in the first place. The originator of a forum posting occupies a
like position. As stated previously, the
process of publication is bilateral. At
one end are those who create the article and participate in its
dissemination. At the other, is the
reader, listener or viewer who receives it.
There is no conceivable reason for ignoring the originator of the posting
as the first and one of the main publishers.
Indeed, as we have seen, the appellants pursued some of the originators
as publishers of the defamatory statements and obtained financial settlements
from them.
73.
It does not assist the appellants’ argument to postulate the
crashing of the forum’s server, resulting in failure of the publication process. To suggest that this shows that the only
publisher is the forum provider involves a misdirected “but for” argument. True it is that “but for” the proper
functioning of the forum’s server, the hypothetical defamatory statement would
not have been published to persons seeking to access the website. But that does not provide a basis for
excluding the originator as a first or main publisher. It remains also true that “but for” the
originator making the defamatory posting in the first place, there would be no
libel to convey to the ultimate recipient.
Where the server does not crash and the chain of publication is
completed, the originator is seen to be an obviously essential first or main
publisher in the bilateral publication process. I therefore reject the argument that in the
absence of any other candidate, the respondents must be held to be the only
first or main publisher.
K. Who is in law a “first or main publisher”?
74.
I turn then to the first of the central issues in this
appeal: Are the respondents in law to be
treated as the first or main publishers or merely as subordinate publishers of
the defamatory statements posted by the forum users in question? What are the criteria for determining whether
a person who plays some role in the process of publishing a particular article
is a first or main publisher of that article?
75.
As the authorities on the innocent dissemination defence
show, in a newspaper setting, the journalist, editor, printers[61]
and (vicariously) the newspaper proprietor are all treated as first or main
publishers. In my view, this is because
they are persons whose role in the publication process is such that they know
or can be expected easily to find out the content of the articles being
published and who are able to control that content, if necessary preventing the
article’s publication. It is because they occupy such a position that the law
has held them strictly liable for any defamatory statements published.
76.
In my view, the abovementioned characteristics supply the
criteria for identifying a person as a first or main publisher. They are (i) that he knows or can easily
acquire knowledge of the content of the article being published (although not
necessarily of its defamatory nature as a matter of law); and (ii) that he has
a realistic ability to control publication of such content, in other words,
editorial control involving the ability and opportunity to prevent publication
of such content. I shall, for brevity
refer to them as “the knowledge criterion” and “the control criterion”
respectively.
K.1 The knowledge criterion
77.
That the knowledge criterion identifies a distinguishing
characteristic of a first or main publisher is clear from the doctrine of
innocent dissemination itself: the absence of knowledge is the first requirement
of that defence, being a defence only open to subordinate publishers. Thus, in Emmens v Pottle,[62]
Lord Esher MR stated :
“The question is
whether, as such disseminators, they published the libel? If they had known
what was in the paper, whether they were paid for circulating it or not, they
would have published the libel, and would have been liable for so doing. That,
I think, cannot be doubted.”
78.
And as laid down by Romer LJ in Vizetelly, to avail himself of the defence, the defendant must establish
“... that he was innocent of any knowledge of the libel contained in the work
disseminated by him.”[63]
79.
The knowledge criterion is also reflected in the traditional inclusion
of printers as within the class of first or main publishers – and in the more recent
tendency to question whether such treatment of printers ought to be maintained.
80.
Thus, in Thompson
v Australian Capital TV Ltd, [64] the Australian High Court
expressed itself in favour extending the innocent dissemination defence to
printers on the basis that their knowledge of content can no longer be assumed
or expected. In their joint judgment,[65]
Brennan CJ, Dawson and Toohey JJ stated:
“...in both Emmens
v Pottle and Vizetelly printers were regarded as outside the ambit of
the defence of innocent dissemination. The printing technology of the time made
it inevitable that the printer would know the contents of what was being
printed. With changes in technology, the
logic of treating printers in the same way as distributors was accepted by the
Faulks Committee in the United Kingdom and by the Australian Law Reform
Commission. The logic is irresistible so
long as the printer qualifies as a subordinate publisher ...”
K.2 Knowledge
of what?
81.
What must the publisher be shown to have known or to be
expected to have known in order to be treated as a first or main publisher and
so deprived of the defence? Mr Thomas
submitted that it was sufficient that these respondents knew that they were
hosting and making accessible a multitude of postings on the forum. They must therefore, he argued, be taken to know
the content of the postings or discussion threads complained of since they
formed part of that multitudinous body of material. I cannot accept such a broad and
indiscriminate basis for deeming an internet intermediary strictly liable as a
first or main publisher. It should be
stressed that adopting a more focussed requirement as to knowledge does not
mean absolving a platform provider from liability. It means treating it as a subordinate
publisher and throwing on it the burden of bringing itself within the innocent
dissemination defence.
82.
Eady J in Bunt
v Tilley,[66]
helpfully explains the nature of the knowledge requirement in the following
terms:
“I have little doubt ... 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 , 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’. ... for a
person to be held responsible there must be knowing involvement in the process
of publication of the relevant words.”
(Italics in the original)
83.
In Emmens v Pottle, in summarising the situation which gave
rise to the innocent dissemination defence, Lord Esher MR stated: “...the
defendants were innocent disseminators of
a thing which they were not bound to know was likely to contain a libel.”[67] And in Vizetelly,
Romer LJ spoke of the defendant being “innocent of any knowledge of the libel
contained in the work disseminated by
him.”[68]
84.
There may well be scope for argument in any particular case as
to what the internet equivalent of the article or “thing” or “work” whose
contents are known to the publisher should be taken to be. However, that debate is in my view of little
consequence. The important question is
whether the publisher knew or can properly be expected to have known the
content of the article being published. Eady
J stated that knowledge of “the relevant words” contained in the article complained
of must be shown. That should be taken to
mean that the publisher must know or be taken to know the content – not
necessarily every single word posted – but the gist or substantive content of
what is being published, to qualify as a first or main publisher. Such knowledge may exist in relation to the
content of a particular posting or a particular discussion thread or group of
discussion threads, it being irrelevant whether the provider realised that such
content was in law defamatory.[69] I reject in any event the appellants’ suggestion
that a discussion forum provider should be treated as having knowledge of the
content of every message posted on the forum and deemed to be a first or main
publisher thereof.
K.3 The
control criterion
85.
The requirement that a first or main publisher must also be
shown to have control over the published content (meaning the ability and
opportunity to prevent its publication) reflects the law’s policy of mitigating
the strict publication rule in relation to a person who plays a less important
role in the publication process and thus does not know the content being
published or can do nothing to prevent its publication. Conversely, if the person concerned was aware
of the article’s content and had the opportunity to prevent its dissemination,
there is no reason in principle for excluding the strict publication rule.
86.
The ability to exercise such control was central to the
decision in Thompson v
Australian Capital TV Ltd.[70]
As noted above, Channel 7 was held
liable as a first or main publisher for re‑broadcasting live to air the
defamatory programme produced by Channel 9 since it was clear that Channel 7
had had the ability and opportunity to prevent publication of the defamatory
content but had decided not to exercise such control. In the main judgment, their Honours stated:
“It is true that
Channel 7 did not participate in the production of the original material
constituting the program. But Channel 7 had the ability to control and supervise
the material it televised. Channel 7's answer is that time did not permit
monitoring the content of the program between its receipt at Black Mountain and
its telecast from the studios in the Australian Capital Territory. That may
well be so but it by no means follows that Channel 7 was merely a conduit for
the program and hence a subordinate disseminator. It was Channel 7's decision
that the telecast should be near instantaneous, a decision which was
understandable given the nature and title of the program but which was still
its decision.”[71]
87.
In Bunt
v Tilley, Eady J pointed to knowledge and control (meaning “an
opportunity to prevent the publication”) as the basis for allocating
responsibility:[72]
“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.”
88.
Editorial control was given central importance by the Supreme
Court of Canada in Crookes
v Newton.[73]
The Court had
to decide whether by creating a hyperlink that connects a reader to allegedly
defamatory material, the creator of the hyperlink can be said to “publish” the
offending material. A hyperlink is a
device which can be imbedded in an internet article which, when clicked on, takes
the reader to a secondary article to which the author wishes to refer. The Court held that providing a hyperlink did
not amount to publication of the linked article. The majority emphasised that the author who created
the hyperlink did not control the secondary article’s content
or publication.[74]
Abella J, writing for the majority
stated:
“A reference to
other content is fundamentally different from other acts involved in
publication. Referencing on its own does
not involve exerting control over the
content. Communicating something is very
different from merely communicating that something exists or where it
exists. The former involves
dissemination of the content, and suggests control over both the content and
whether the content will reach an audience at all, while the latter does
not. Even where the goal of the person
referring to a defamatory publication is to expand that publication’s audience,
his or her participation is merely ancillary to that of the initial publisher:
with or without the reference, the allegedly defamatory information has already
been made available to the public by the initial publisher or publishers’
acts. These features of references
distinguish them from acts in the publication process like creating or posting
the defamatory publication, and from repetition.”[75]
K.4 Applied
to the respondents
89.
When the abovementioned criteria are applied to the
respondents, it is in my view clear that they are subordinate publishers and
not first or main publishers of the defamatory postings. They were certainly publishers of those postings
(and do not seek to argue otherwise) since they provided the platform for their
dissemination, but the respondents were not aware of their content and realistically,
in a many-to-many context, did not have the ability or opportunity to prevent their
dissemination, having learned of them only after they had already been
published by their originators. The
respondents are therefore in principle able to invoke the innocent
dissemination defence as subordinate publishers. I deal in the next Section with the consequences
of their acquiring knowledge of the defamatory content as such subordinate
publishers.
L. Reasonable care and subsequently acquired knowledge
90.
Formulated as a defence which requires the defendant to prove
that he did not know and would not, with the exercise of reasonable care in the
relevant circumstances, have known that the article contained defamatory
content, the focus of the innocent dissemination defence has been on past,
completed publications. Thus, a
newsagent who has already sold its consignment of newspapers which contained an
offending article will rely on the defence seeking to prove that, when making
the sales, it was not aware of the
defamatory content and could not, with reasonable care, have discovered
it.
91.
What is needed to satisfy the standard of reasonable care will
vary according to the circumstances. Thus,
in an internet context, the standard may well demand particular monitoring of
postings by certain forum members or of postings on particular discussion
topics if previous experience indicates a propensity or special risk of defamatory
postings.
92.
The potential need for particular care in certain cases is
illustrated by two decisions involving defendants who mounted campaigns against
targeted persons. Thus, in Kaplan v Go Daddy Group,[76]
a customer dissatisfied with his Hunter Holden car started a blog website
provocatively called “www.hunterholdensucks.com” inviting others to share their
comments about the car. Unsurprisingly,
some of the comments posted on the blog site were extremely negative. Similarly, in Wishart v Murray,[77]
the defendants set up a Facebook page campaigning for a newly published book to
be boycotted and casting serious aspersions against one of the authors. Unlike the hosts of a discussion forum involving
many thousands of discussion threads, the creators of such a blog or Facebook
page have a relatively narrow horizon to monitor and, given that their express
purpose is to mount a campaign critical of others, they might reasonably be
expected to exercise particular care in respect of potentially defamatory comments
posted at their invitation.
93.
The requirement of reasonable care is also relevant in cases involving
subsequently acquired knowledge. The
forum provider may initially satisfy the requirements of the innocent
dissemination defence in terms of lack of knowledge, etc, but may subsequently become
aware of the relevant defamatory content in circumstances where the defamatory
article is still available for distribution and where, before it can be removed,
some further acts of publication in fact occur.
Thus, a magazine with an offending article may be still available for
purchase on the shelves of various shops operated by a firm of newsvendors and
some copies may be sold after the moment when the firm acquires such knowledge. And in an internet context, an offending
discussion thread may still be accessible by forum users when the provider first
learns of its defamatory content, and “hits” accessing that content may occur before
it can be removed from the site. How
does such acquired knowledge affect the innocent dissemination defence? Are the newsvendors and the platform provider
in the examples just given excluded from the defence from the moment that they
become aware of the defamatory content?
94.
The existing authorities have tended to deal with this
situation under the rubric of the “notice board cases” as discussed above.[78] But as previously stated, I do not consider
that analysis satisfactory. The issue
appears to me to be better viewed as arising in the context of the innocent
dissemination defence.
95.
One possible view might be that since the first requirement of
the defence is that the defendant, in Romer LJ’s terms, must show that he was “innocent
of any knowledge of the libel contained in the work disseminated by him”, he is
deprived of the defence from the moment that he learns of the offending content
and he is strictly liable for all subsequent publications. However, I think that such a rule runs against the
grain of the common law defence.
96.
In the situation posited, the premise is that the defendant
is a subordinate publisher who made the article available when there was
nothing in the work or the circumstances under which it came to him or was
disseminated by him which should have led him to suppose that it contained a
libel; and his lack of awareness was not due to any negligence on his part. The defence implicitly recognizes that such a
defendant may in fact unwittingly publish matter that is defamatory of the
plaintiff, but exempts him from liability provided he meets the standard of
reasonableness.
97.
In my view, it is consistent with the policy underpinning the
defence that the same standard of reasonableness should be applied in a situation
of acquired knowledge. A subordinate
publisher should be afforded the continued protection of the defence if he
proves that upon becoming aware of such content, he promptly took all
reasonable steps to remove the offending content from circulation as soon as
reasonably practicable. Such an approach
is also in keeping with the rule which imposes liability on a person as first
or main publisher if, having relevant knowledge or easy access to knowledge and
editorial control so as to be able to prevent publication of defamatory
content, he fails to exercise such control.
The subordinate publisher who, in contrast, forthwith takes all
reasonable steps to prevent further publication, should not be placed in the
same category. Whether in any particular
case the subordinate publisher succeeds in proving that he has met those
requirements is again a question of fact.
Evidence as to how readily the offending content could be withdrawn or
deleted would be important.
98.
I note in this context that in Metropolitan International Schools Ltd v Designtechnica Corpn,[79]
Eady J considers the position after defamatory content is brought to the
attention of a search engine operator and points out that:
“There is a degree of
international recognition that the operators of search engines should put in
place such a system (which could obviously either be on a voluntary basis or
put upon a statutory footing) to take account of legitimate complaints about
legally objectionable material.”[80]
99.
His Lordship suggests that :
“...it does not follow as a matter of law that between notification
and ‘take down’ the third defendant becomes or remains liable as a publisher of
the offending material. While efforts are being made to achieve a ‘take down’
in relation a particular URL, it is hardly possible to fix the third defendant
with liability on the basis of authorisation, approval or acquiescence.”[81]
M. The defence of innocent dissemination applied to the respondents
100.
We are only concerned with the 2008 and 2009 statements. It is not in dispute that the respondents
were unaware of the postings containing those statements until the 2008
statements were subsequently brought to their attention by the appellants and
until they themselves discovered the 2009 statements.[82] It may be recalled that the 2008 statements
were posted on 24 October 2008 and found by the Judge to have been brought to
the respondents’ notice on 27 October 2008.[83] The 2009 statements were posted at 11.25 pm
on 21
January 2009 and discovered by the respondents the next morning.[84] In accordance with the approach discussed above,
I shall first address the position concerning publication of the defamatory statements
before the respondents, as subordinate publishers, became aware of them; and
then turn to consider the position after they acquired such awareness.
101.
Should the respondents, exercising the reasonable care demanded
by the circumstances, have known of the offending 2008 and 2009 statements
before they actually became aware of them?
The Courts below properly stressed the very high volume of traffic rapidly
generated on the forum, with as many as 5,000 postings per hour and 30,000
users on line at any time. The Judge noted
that in the circumstances, only minimal editorial control was exercised[85]
and Fok JA pointed to the impracticability of automated or manual screening of postings
before they appeared on the forum.[86]
Fok JA accordingly supported the finding
that “in the light of the sheer volume of postings on the defendants’ forum,
the defendants could not be said to be negligent in not knowing of the
existence of the defamatory statements complained of or the likelihood of their
being on the website forum prior to being informed of the same”.[87] That was the basis for concluding that the
respondents had made good the innocent dissemination defence in relation to the
period prior to their learning of the offending postings.
102.
Although it would have been helpful if the Judge had made fuller
and more explicit findings in relation to innocent dissemination, Fok JA’s conclusions
were fully justified on the undisputed and incontrovertible evidence. The respondents were originally unaware of
the defamatory content posted by the originators. Given the very large volume of traffic on the
forum and the speed with which it was generated, they had no realistic means of
acquiring such knowledge or of exercising editorial control over the content before
it was posted. There was nothing to
alert them of any likelihood that the originators of the relevant postings would
be posting or had posted the offending 2008 statements, until they were informed
of those statements by the appellants.
Although it is unclear what precisely had led the respondents to
discover for themselves the 2009 statements, the fact that they
did in fact independently make that discovery less than 12 hours after those statements
were posted, is consistent with the respondents having taken a more proactive
approach regarding potentially defamatory postings affecting the appellants, given
their experience of the 2008 statements.
It is therefore my view that the Judge and the Court of Appeal were
entitled to conclude that the respondents had made good the defence in respect
of the period before the offending material came to their notice.
103.
Turning to what occurred after the respondents came to know of
the postings, it is not in dispute that the 2008 statements were taken down
some three and a half hours after notification was received. And the 2009 statements which had been posted
at 11.25 pm on 21 January 2009, were removed by the respondents at 11.40 am on
22 January 2009 as soon as they were discovered.[88] While the Courts below[89]
assessed the adequacy of the respondents’ reactions on the basis of the notice
board line of cases which I consider inapplicable, their conclusion that the
respondents took down the offending postings within a reasonable time after
they became aware of them was plainly open to them and is a conclusion equally pertinent
to the standard of reasonableness discussed in Section L above. The promptness with which the respondents took
down the offending postings justifies the finding that they acted properly in
accordance with that standard. I
therefore conclude that the respondents made good the innocent dissemination
defence in respect of the defamatory postings both before and after they came
to know of their existence. The
appellants’ appeal must therefore be dismissed.
However, before leaving this judgment, I wish to deal with aspects of the
argument advanced at the hearing concerning the constitutional right to freedom
of expression in the present context.
N. The
constitutional right to freedom of expression
104.
It is somewhat to state the obvious to point out that the law
has always required a balance to be struck between the right to freedom of
expression on the one hand, and the right to have one’s reputation protected
against defamation on the other. The
rights on both sides of that balance are constitutionally recognized in Hong
Kong.[90]
105.
Mr Thomas, however, argued that such balance does
not come into
the picture in the present case. He submitted that there is no
question of restricting freedom of expression on the part of the
originators and the respondents since they have fully exercised that freedom in
publishing the defamatory statements. He
cited Lord Hobhouse of Woodborough in Reynolds v Times Newspapers Ltd,[91]
for the proposition that:
“There is no human
right to disseminate information that is not true. No public interest is served
by publishing or communicating misinformation. The working of a democratic
society depends on the members of that society, being informed not misinformed.
Misleading people and the purveying as facts statements which are not true is
destructive of the democratic society and should form no part of such a
society. There is no duty to publish what is not true: there is no interest in
being misinformed. These are general propositions going far beyond the mere
protection of reputations.”
106.
There can be no quarrel with that proposition. Indeed,
Article 16 of the Bill of Rights expressly makes exercise of the right to
freedom of expression subject to restrictions necessary for respect of the
rights or reputations of others. So
plainly, a purveyor of libellous statements cannot claim constitutional
protection for his conduct.
107.
But the balance, properly understood, remains of great
importance. It does not involve, as Mr
Thomas suggests, a misguided attempt to weigh the claims to freedom of
expression by a defaming defendant against the law-abiding victim’s right to
reputation. The balance involves two
important competing interests affecting society at large, described in the main
judgment in Dow Jones
& Co Inc v Gutnick in the following terms:[92]
“It is necessary to
begin by making the obvious point that the law of defamation seeks to strike a
balance between, on the one hand, society's interest in freedom of speech and
the free exchange of information and ideas (whether or not that information and
those ideas find favour with any particular part of society) and, on the other
hand, an individual's interest in maintaining his or her reputation in society
free from unwarranted slur or damage. The way in which those interests are
balanced differs from society to society.”
108.
The power of the internet is such that it greatly magnifies
what is at stake in considering how that balance should be struck. It must certainly be recognized that a
defamation circulated on the internet may do enormous damage to a person’s
reputation. In Crookes v Newton,[93]
Abella J cited the following excerpt from an article by Professor Lyrissa
Barnett Lidsky:
“Although Internet
communications may have the ephemeral qualities of gossip with regard to
accuracy, they are communicated through a medium more pervasive than print, and
for this reason they have tremendous power to harm reputation. Once a message enters cyberspace, millions of
people worldwide can gain access to it.
Even if the message is posted in a discussion forum frequented by only a
handful of people, any one of them can republish the message by printing it or,
as is more likely, by forwarding it instantly to a different discussion
forum. And if the message is
sufficiently provocative, it may be republished again and again. The extraordinary capacity of the Internet to
replicate almost endlessly any defamatory message lends credence to the notion
that ‘the truth rarely catches up with a lie’.
The problem for libel law, then, is how to protect reputation without
squelching the potential of the Internet as a medium of public discourse.”[94]
109.
On the other side of the scale, advocates who warn against
interfering with free and open exchanges on the internet have powerful arguments
to deploy. An example can be found in counsel’s
arguments in the Dow Jones case, summarised
by Kirby J[95]
as follows:
“The crucial
attributes [of the World Wide Web], so it was said, include the explosion in
the availability of readily accessible information to hundreds of millions of
people everywhere, with the consequent enhancement of human knowledge, and the
beneficial contribution to human freedom and access to information about the
world's peoples and their diverse lives and viewpoints that the Internet makes
available, thereby contributing to human understanding. It was argued that the
law should generally facilitate and encourage such advances, not attempt to
restrict or impede them by inconsistent and ineffective, or only partly
effective, interventions, for fear of interrupting the benefit that the
Internet has already brought and the greater benefits that its continued
expansion promises.”
110.
His Honour acknowledged that the internet “is a medium that
overwhelmingly benefits humanity, advancing as it does the human right of
access to information and to free expression”, adding: “But the human right to
protection by law for the reputation and honour of individuals must also be defended
to the extent that the law provides”.[96]
111.
It is important to bear those competing social interests in
mind when approaching questions such as those presently being addressed. The value of free and open many-to-many communications
on discussion platforms must be recognized. The ability of internet intermediaries to host
them in good faith must not be unduly impaired by the imposition of unrealistic
or overly strict standards which would make commercial operation impossible or introduce
a chilling effect discouraging free and open exchanges. At the same time, a platform provider must
genuinely recognize and take all reasonable steps to protect the rights and
reputations of persons from being unlawfully damaged by postings published on
the forum. Thus, for instance, while an
internet intermediary may not be expected to police or filter the many-to-many discussions
hosted, it is appropriate to require prompt action to take down offending postings
upon receiving a complaint or otherwise becoming aware of them.
112.
As it happens, the evidence indicates that the discourse often
encountered on the respondents’ forum is of very doubtful social value. It frequently involves merely vulgar
abuse. But freedom of expression must
not be devalued because it permits such low grade exchanges. Examples of forums of undeniable value to
society in the political, scientific, social, cultural and other spheres are
plentiful.
O. Conclusion
113.
For the foregoing reasons, I conclude that the respondents:
(a)
did not authorize publication of the defamatory statements;[97]
(b)
are not to be regarded as the only possible first or main
publishers;[98]
(c)
did not know the content of the relevant statements and did
not realistically have the ability or opportunity to prevent their publication
and therefore were not the first or main publishers of those statements;[99]
and
(d)
as subordinate publishers, satisfied the requirements of the
innocent dissemination defence both before and after they became aware of the
defamatory content of the offending postings.[100]
114.
I would accordingly dismiss the appellants’ appeal and make
an order nisi that they pay the respondents’ costs, directing that the parties
have liberty to file written submissions on the question of costs within 14
days from the date of this judgment.
Mr Justice Litton NPJ:
115.
Mr Justice Ribeiro PJ’s judgment gives a helpful view of how
the law of libel evolved as technology for the transmission of messages
advanced. Over the past fifteen years or
so there has been a quantum leap in the development of the mass media, and the
appearance of the “social media”, with the increasing use of the internet. Even in the traditional realm of radio and
television the focus has shifted: Instead of the operators uniquely controlling
content, the media has become much more interactive, with listeners and viewers
contributing to the content in open discussion.
116.
The public has accordingly greater scope now for freedom of
expression than in olden times: A freedom which the common law protects in the
public interest: see for instance Derbyshire
County Council v Times Newspapers Ltd [1993] AC 534 where the House of Lords held that institutions of
government have no right at common law to sue for defamation in respect of their public functions:
Notwithstanding the fact that Article 10 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms[101]
had not been enacted into domestic law in the United Kingdom. At p.551-F Lord Keith of Kinkel agreed with
Lord Goff of Chieveley in A-G v Guardian
Newspapers (No.2) [1990] 1 AC 109 at 283-4 that, in the field of freedom of
speech, there was no difference in principle between English law on the subject
and Article 10 of the European Convention.
117.
It is accordingly to the common law that I turn for the
resolution of this appeal. It is here
that the balance between freedom of expression on the one hand and the
protection of individual reputations on the other has to be struck[102].
118.
The medium for the dissemination of opinions thoughts and
expressions, and their means of distribution, fall within a wide spectrum: From
the words carved on stonework in somebody’s house (the example given by Greene
LJ in Byrne v Deane [1937] 1 KB 818
at 838) at one end of the spectrum to articles on the first page of a leading
newspaper at the other; from the stone mason who wielded the mallet to the
street-side news-vendor. For liability
for libel, the question is always this: At what point does the law seek to pin
responsibility for such dissemination?
For the author of the article on the first page of the newspaper and for
its editor the answer is obvious. But what about the owner of the house in
Greene LJ’s example, or the proprietors of the golf-club in Byrne v Deane who would not normally
have expected defamatory statements to be pinned on their notice-board?
119.
In this regard, labels such as “main publisher” “subordinate distributor” “mere
disseminator”, as appearing in the books, are simply labels. They seek to do nothing more than to define,
in an imprecise way, the position of the defendant within the wide spectrum.
120.
In this case the respondents maintain for commercial reasons
a forum with different discussion channels, the most popular of which is the
so-called “leisure”[103]
channel. Registered members of the forum
would initiate discussion “threads” by posting comments thoughts and
expressions which any user of the internet can read. Other subscribers respond. Thus a thread of dialogue develops. The heavier the traffic the greater the gain
for the respondents, for they depend upon the number of “clicks” for their
advertising income. It is not in the
respondents’ commercial interest that those “threads” be dull and insipid in
content.
121.
Mr Michael Thomas SC’s first argument is that the respondents
were the first or main publishers of the libel and as such they attract strict
liability[104]. Libel is actionable per se, the law making the presumption that damage flows from
it. And, being the first or main
publishers, as Mr Thomas argues, the defence of innocent dissemination, as
developed by the common law, is not available to the respondents. Mr Thomas relies on a passage in the judgment
of Romer LJ in Vizetelly v Mudie’s Select
Library, Limited [1900] 2 QB 170 at 180
where he said:
“…The result of the cases is
I think that, as regards a person who is not the printer or the first or main
publisher of a work which contains a libel, but has only taken, what I may
call, a subordinate part in disseminating it, in considering whether there has
been publication of it by him, the particular circumstances under which he
disseminated the work must be considered.
If he did it in the ordinary way of his business, the nature of the
business and the way in which it was conducted must be looked at; and, if he
succeeds in shewing (1) that he was innocent of any knowledge of the libel
contained in the work disseminated by him, (2) that there was nothing in the work
or the circumstances under which it came to him or was disseminated by him
which ought to have led him to suppose that it contained a libel, and (3) that,
when the work was disseminated by him, it was not by any negligence on his part
that he did not know that it contained the libel, then, although the
dissemination of the work by him was prima facie publication of it, he may
nevertheless, on proof of the before-mentioned facts, be held not to have
published it. But the onus of proving
such facts lies on him,…”
Mr Thomas focusses upon the opening
lines and submits that the respondents were
“the first or main publishers”.
122.
In the circumstances of this case, if Mr Thomas were right,
the respondents had no defence and the appeal must succeed. So the first question is this: Were the
respondents entitled to rely on the defence of innocent dissemination?
123.
In answering this question I agree with Mr Justice Ribeiro PJ
that the respondents, as forum hosts, must be treated as publishers of the
defamatory statements: Though,
obviously, not as first publishers;
the first publishers being the authors of the statements who posted those
statements in the forum intending that those statements be published. It is here, in my judgment, that the common
law demonstrates its flexibility to accord with the changing times[105].
124.
In theory a forum host such as the respondents in this case
has some control over the contents of the statements published through the
medium of the website maintained by them.
And the respondents have demonstrated that they had control in this case
because, in relation to “the 2009 statements” (those posted on 21 January
2009), these were discovered by the respondents themselves the next day – not
in response to a specific complaint by the appellants’ solicitors – and taken
down immediately. But, in practice, as
the courts below found, such control cannot be exercised across the board
because of the huge volume of traffic generated by the forum. The respondents, unlike the editors of
newspapers, cannot possibly know the
content of the statements they publish; nor can they be equated with the
operators of a television station such as the defendants in Thompson v Australian Capital Television PTY Limited [1996] 186 CLR 574 where the station
owners chose to re-broadcast a live interview and had the means of control over
the contents before they were broadcast: As Fok JA remarked at §104, it would
have been relatively straight forward in Thompson
to delay the transmission by a few minutes to determine whether any part of the
material should be expurgated. On the
facts of a case like the present, manual screening of the content was
impossible and no technology has yet been invented to filter out defamatory
statements by mechanical means. As Fok
JA observed at §105, filtering by keywords was not possible since defamatory
meaning could be communicated by a combination of words, which may individually
be innocuous.
125.
No reported case in the common law world has been found to
fit the circumstances of this case. Godfrey v Demon Internet Ltd [2001] QB
201 comes fairly close. There the
service provided by the defendant, called a “bulletin board”, was described by
Morland J (at p.204G) as a “one-to-many publication from author to readers
round the world”, available to those with access to a service called Usenet.
A defamatory message was posted on the bulletin board; the plaintiff
alerted the defendant to the existence of the offending posting; the posting
was not removed; subscribers were able to read the offending message until it
was automatically erased 10 days after the posting. The plaintiff claimed damages for libel in
respect of the period when the message remained on the bulletin board after the
defendant became aware of it. The question
before Morland J was whether the defendant had an arguable defence under
s.1(1)(b) and (c) of the Defamation Act 1996[106].
126.
Morland J held that the defendant was not “author, editor or
publisher” of the statement complained of, in terms of s.1(1)(a) of the Act, so the
issue boiled down to the question of reasonable
care under sub-section (b) and knowledge
and reasonable belief under
sub-section (c). The judge held on the
facts that the defence could not be made out and struck out that part of the
pleadings.
127.
There is no statutory equivalent of subsections 1 and 2 of the Defamation
Act 1996 in Hong Kong, so the law has to be developed on common law principles,
within the polarity of the two rights:
Freedom of expression on the one hand, and protection of reputation on
the other. In this context I would
unhesitatingly reject Mr Thomas’ primary submission that the respondents must
be regarded as first or main publisher, attracting strict liability. Such an approach would have an unacceptable “chilling
effect” on freedom of expression. I
would adopt Mr Justice Ribeiro PJ’s categorization of the respondents’ role as subordinate publishers, this being a
better description. The common-law defence
of innocent dissemination, as developed by Romer LJ in Vizetelly (see para. 121 above), is available to the
respondents, as the two courts below have found.
128.
As formulated in Vizetelly
what a defendant must show, on a balance of probabilities, are:
(i) he had no
knowledge of the libel contained in the message disseminated by him;
(ii) there was
nothing in the circumstances which ought to have led him to suppose that the
message contained a libel, and
(iii) there was
no negligence on his part in disseminating the libel.
129.
Here, it was not the appellants’ case that the respondents knew of the 2008 and 2009 statements
when they first appeared in the “leisure” channel. Their focus of attack was on the elements
(ii) and (iii) above. As to these, there
were concurrent findings of fact in the courts below, in favour of the
respondents, though the trial judge’s findings were somewhat sparse.
130.
As mentioned earlier, the respondents’ commercial success
depends largely upon polemics and controversy: dull and insipid threads posted
in their “leisure” channel are unlikely to attract lively participation. Commonsense suggests that, given such a
set-up, defamatory statements would be posted from time to time. But the respondents had rules which
prohibited objectionable postings, and a subscriber who violated the rules
could have his membership suspended or cancelled.
131.
This appeal, on the facts, comes within a narrow
compass. It is confined to the 2008 and
2009 statements. Mr Thomas, for the
appellants, puts emphasis on this point:
When the October 2008 words were published, the respondents
had already been sued by the appellants in relation to the March 2007 statement, so the
respondents should have been alerted to the possibility of recurrence. These points were fully explored in the
courts below. The findings of those
courts were that the elements in para (ii) and (iii) above were satisfied. These are not findings which this Court can
disturb. In so concluding I say nothing
about the situation where, to the knowledge of the respondents, a person (such
as Mr Ma Ching Kwan the 6th appellant) or the Oriental Press Group
have been deliberately targeted by defamatory statements from groups of
anonymous subscribers. In these
circumstances, to merely employ two administrators to monitor forum discussion
for six to eight hours a day, five days a week, may not be enough. Whilst keywords to identify defamatory
statements may not be possible, is there any reason why the identities of key
persons cannot be high-lighted and brought to the attention of the administrators? This was not an aspect of the case which was
explored either in the courts below or before us. I therefore say nothing more about it.
132.
I agree with Mr Justice Ribeiro PJ’s judgment.
Mr Justice Gleeson NPJ:
133.
I agree with the judgment of Mr
Justice Ribeiro PJ.
Chief
Justice Ma:
134.
For the reasons contained in the
judgment of Mr Justice Ribeiro PJ, this appeal is unanimously dismissed. As to costs, an order nisi is made in terms
of paragraph 114 above.
(Geoffrey Ma)
Chief Justice
|
(Patrick Chan)
Permanent
Judge
|
(RAV Ribeiro)
Permanent Judge
|
||
(Henry Litton)
Non-Permanent Judge
|
(Murray Gleeson)Non-Permanent Judge |
|||
Mr Michael Thomas SC and Mr Lawrence Ng instructed by
Iu, Lai & Li for the Appellants
Mr John Reading SC and Ms Elizabeth Herbert instructed
by Oldham, Li & Nie for the Respondents
Hong Kong Court of Final
Appeal rules on defamation claim against provider of an internet discussion
forum
135.
In Oriental Press Group Ltd & Others v
Fevaworks Solutions Ltd & Others [2013] HKEC 1025, the Hong Kong Court of
Final Appeal (CFA) has ruled on whether and under what circumstances the
provider of an internet based discussion forum may be held liable for defamatory
material posted on the forum. Mr Justice
Ribeiro PJ, delivering the leading judgment, took the opportunity to review
case law from other common law jurisdictions and to formulate the principles
applicable in Hong Kong. This judgment
will be of interest both to providers of discussion fora and other internet
based interactive sites and to those who are subject of (defamatory) comments
posted on such sites.
136.
137.
The facts
138.
139.
The respondents in this appeal are the providers,
administrators and managers of a website which hosts a very popular Hong Kong
internet discussion forum. The forum is membership based, which means that only
users who have registered and signed up to certain rules can post messages onto
the forum. The rules include a prohibition against postings of objectionable
content, including defamatory statements.
Two administrators were employed by the respondents to monitor the forum
discussions for six to eight hours per day with a view to removing objectionable
content. On three occasions between 2007
and 2009, defamatory statements were posted on the forum suggesting that the
appellant was involved in drug trafficking and money laundering. On two occasions, the respondents removed the
statements as soon as they became or were made aware of them, but on the third
occasion the statement was only removed about eight months after the
respondents were informed of its existence.
The appellants were awarded damages of HK$100,000 in relation to the
third incident, due to the delay in removing the statement, but the respondents
were not found liable in relation to the other two incidents.
140.
141.
The issues
142.
143.
In order to be found liable for the tort of libel
or defamation a defendant has to be shown to have “published” or communicated a
defamatory statement to a third party. The question that was central to the
claim was therefore whether and to what extent the provider of an internet
forum can be treated as “publisher” of defamatory statements posted by a user
of its site. The CFA had to consider the
following issues:
144.
145.
Were the
respondents to be treated as “publishers” of the defamatory statements at all?
146.
If they
were “publishers”, were they “first or main” publishers, or were they
“subordinate” publishers? This was important as “first or main” publishers are
strictly liable for defamatory statements published by them, whereas
“subordinate” publishers could under given circumstances rely upon the common
law defence of “innocent dissemination”.
147.
If
“subordinate” publishers, did the respondents satisfy the requirements of the
defence of “innocent dissemination” both before and after becoming aware of the
defamatory posts?
148.
149.
The judgment
150.
151.
Justice Ribeiro PJ made the following important
findings regarding the principles applicable to postings on an internet forum:
152.
153.
A
provider and administrator of an internet forum that encourages and facilitates
postings by its members or the public is a “publisher” regardless of whether
the provider knew about the defamatory content of the post.
154.
When
deciding whether the provider is a “main” or a “subordinate” publisher, an
internet forum cannot be treated the same as print media or radio and
television, all of which are generally considered to be “main” publishers with
strict liability. The test to apply is whether
the publisher (i) knows or can easily acquire knowledge of the content of the
publication and (ii) has a realistic ability to control publication of the
content before it is published. Unlike
the traditional media, which will decide what to publish or to broadcast, the
provider of a busy internet forum (the respondent provider was known to receive
over 5,000 posts per hour during peak times) cannot be treated to have
knowledge of and control over every post before it is posted. One could also not say that the respondents
had “authorised” the postings (as was suggested by the appellants) in light of
their rule against objectionable content.
155.
A
“subordinate” publisher may rely upon the common law defence of innocent
dissemination where the publisher can show that he did not know and could not
with the exercise of reasonable care in the relevant circumstances have known
that the publication contained defamatory content. Also, the publisher must be able to show
that, upon becoming aware of the defamatory content, he took all reasonable
steps to remove the offending content from circulation as soon as reasonably
practicable.
156.
With
respect to the knowledge prior to publication, different standards may apply
depending upon whether previous experience has shown that certain users or
certain discussion topics are likely to generate defamatory content. It was
found by the courts below (and accepted by the CFA which usually accepts
factual findings) that, in light of the very high volume of traffic generated
on the forum (with up to 5,000 postings per hour and 30,000 users on line at
any time), the respondent could not have known of the defamatory content prior
to publication; although this is a finding questioned by one of the CFA judges
(Justice Litton NPJ) in light of the fact that there had been previous
defamatory postings in relation to the appellants. It was also found that the respondents acted
promptly by taking the postings down within three and a half hours and 15
minutes respectively after becoming aware of their defamatory content. All of this meant that the respondents could
take advantage of the defence of innocent dissemination.
157.
158.
Take away points
159.
160.
Providers
of internet fora and social networking sites will normally be considered to be “publishers”,
although they are more likely to be considered subordinate publishers and
therefore to be able to benefit from the common law defence of innocent
dissemination compared to more traditional media.
161.
In order
to be able to benefit from the “innocent dissemination” defence, the provider
will need to have processes in place to show that it is taking reasonable steps
to identify and promptly remove objectionable content. These steps are likely to differ depending on
the nature of the traffic to the site.
For example, hosts of discussion fora with a lower volume of traffic and
a narrower topical focus may be expected to take greater care in monitoring
contributions.
162.
Where
there are factors that indicate that certain posts are more likely to contain
defamatory content (eg, in cases where a certain user is known to have posted
defamatory content in the past), the provider may have to put more targeted
screening in place to ensure that objectionable content is identified and
removed quickly.
163.
Where
someone is subject of a defamatory post, he or she should notify the provider
of the forum immediately and request removal of the content. If the content is not removed promptly this
may give rise to a claim in damages.
In Hong Kong, damages for defamation have
traditionally been considerably lower than in other jurisdictions such as
England & Wales. The award in this
case is in line with that long term trend.
[1] A third action has been
stayed pending the outcome of these proceedings.
[2] HCA 2140/2008.
[3] Dealt with by the Court of
Appeal in HKSAR v Lo Hon-hing CACC No 107 of 2007 (12
September 2008).
[6] [2012] 1 HKLRD 848, Fok JA
delivering the judgment on liability and Hartmann JA dealing with damages; Tang
VP agreeing.
[7] Universal Resource
Location, that is, the sequence of letters that identifies and locates
resources on the World Wide Web and on the computer hosting the particular
website.
[8] It was suggested at the
hearing that the Chinese title of the channel is better translated as “Gossip”
rather than “Leisure”.
[9] Appearing with Mr Lawrence
K F Ng for the appellants.
[10] Gatley on Libel and Slander
(Sweet & Maxwell, 11th Ed), §§1.7-1.8, citing Lord Atkin in Sim v Stretch (1936) 52 TLR 669 (HL) at
671. For other formulations of the
meaning of “defamatory” see Duncan and Neill on Defamation (Lexis Nexis, 3rd
Ed), §§4.01-4.02.
[13] Vizetelly v Mudie’s Select Library [1900] 2 QB 170
at 179; Godfrey v Demon Internet Ltd [2001]
QB 201 at 207 per Morland J; Dow Jones
& Co Inc v Gutnick (2002) 210 CLR 575 at §25.
[14] Folkard on Slander and Libel, 5th ed (1891),
at p 439, cited by Isaacs J in Webb v
Bloch (1928) 41 CLR 331 at 363-364.
[16] Gatley, at §§6.4, 6.10-6.11.
[18] At §6.4.
[19] At §6.5, footnotes omitted.
[24] At 357-358.
[27] See Godfrey v Demon Internet Ltd [2001] QB 201 at 204. Section 1(1) of the 1996 Act provides: “(1)
In defamation proceedings a person has a defence if he shows that--(a) he was
not the author, editor or publisher of the statement complained of, (b) he took
reasonable care in relation to its publication, and (c) he did not know, and
had no reason to believe, that what he did caused or contributed to the
publication of a defamatory statement.”
[28] Adopted in McPhersons Ltd v Hickie (unreported) No.
40290 of 1994 Supreme Court of New South Wales Court of Appeal, p 6
per Powell JA; and in the recent English Court of Appeal decision in Tamiz v Google Inc [2013] EMLR 14 at §§26-36, per Richards LJ.
[29] Duncan and Neill on
Defamation, 2nd Ed, 1983, p 110, fn 3. The discussion in the current edition
focusses on the statutory defence provided by section 1 of the Defamation Act
1996.
[33] Who dissented on the
question of defamatory meaning, the majority holding that the words were not
capable of being defamatory.
[35] At 837.
[36] At 837-838.
[37] At 838.
[39] At 759.
[40] At 759-760.
[42] At 69,193.
[43] At 69,195.
[44] Godfrey v Demon
Internet Ltd [2001]
QB 201 at 208; Davison v Habeeb and
others [2011] EWHC 3031 at §34; Tamiz
v Google Inc [2013] EMLR 14 at §26-36.
[45] [2013] EMLR 14, which was adopted by
Courtney J in the High Court of New Zealand in Wishart v Murray [2013] NZHC 540 at §§111-116.
[46] In Section D.
[47] [2013] EMLR 14 at §33. I also do not, with respect, subscribe to the
analysis of this line of cases adopted by Dr Matthew Collins in “The Law of
Defamation and the Internet” (OUP 3rd Ed) at §6.29-§6.34.
[48] Godfrey v Demon Internet
Ltd [2001] QB
201 at 209-210; Tsichlas v Touch Line
Media Pty Ltd 2004 (2) SA 112 at 123; Bunt
v Tilley [2007] 1 WLR 1243 at §37; Tamiz
v Google Inc [2013] EMLR 14 (CA) at §23; Wishart v Murray [2013] NZHC 540 at §110, §117.
[51] “The Today Show”.
[53] Knight Professor of
Constitutional Law and the First Amendment, Yale Law School. Paper prepared for the Global
Constitutionalism Seminar, 2010, Yale Law School, adapted from Jack M Balkin, Media Access: A Question of Design, 76
George Washington L Rev 933 (2008).
[56] At 596.
[57] In Section B.
[58] Godfrey v Demon Internet
Ltd[2001] QB 201
at 208-209; Dow Jones & Co Inc v
Gutnick (2002) 210 CLR 575 at §§14-16, 44; Loutchansky v Times Newspapers Ltd (Nos. 2-5) [2002] QB 783 at §58.
[59] Gatley at §6.4.
[69] See Eady J in Bunt v Tilley [2007] 1 WLR 1243
at §23, as to the irrelevance of knowledge regarding
the legal significance of the statement published.
[71] Per Brennan CJ, Dawson and
Toohey JJ, at 589-590.
[74] Abella J with Binnie, leBel,
Charron, Rothstein and Cromwell JJ; with whom McLachlin CJ and Fish J
substantially agreed.
[78] In Section E.
[80] At §56.
[81] At §58.
[82] Judge at §56, Court of
Appeal at §129.
[83] Judge at §77.
[84] Court of Appeal §50.
[85] Judge at §§55 and 67.
[86] Judge at §67, Court of
Appeal at §105.
[87] Court of Appeal at §138.
[88] Affirmation of Lam Cho Shun,
23 September 2009, §7(b).
[89] Judge at §§77 and 80; Court
of Appeal at §140.
[90] Basic Law, Article 27 and
Bill of Rights, Article 16.
[94] Lyrissa Barnett Lidsky, “Silencing John Doe: Defamation &
Discourse in Cyberspace” (2000), 49 Duke LJ 855, at 863-64.
[96] At §164.
[97] Section I above.
[98] Section J above.
[99] Section K above.
[100] Section L above.
[101] “Everyone has the right
to freedom of expression. This right
shall include freedom to hold opinions and to receive and impart information
and ideas without interference by public authority and regardless of frontiers….”
See p.550-F
[102] See Panday v Gordon
[2006] 1 AC 427 at 436-E per Lord Nicholls of Birkenhead: “The purpose
of the law of defamation is to hold a balance between freedom of speech and the
right to reputation. The basic position
at which the common law holds this balance is to impose strict liability for
defamatory statements in the absence of justification.”
[104] “Defamation is committed when the defendant publishes to a third
person word or matters containing an untrue imputation against the reputation
of the claimant”: Gatley on Libel and Slander : 11th ed. para. 1.6
“New situations
regularly arise in the practice of the law which require previously held and
sometimes generally accepted views to be reviewed and if necessary to be
revised in the light of that new situation.
Indeed, the evolution of the common law of this country to meet the
changing needs of contemporary society and its adaptability to change owes much
to judicial acceptance of this philosophy.”
Home Office v Harman [1983] 1 AC 280 at 320G
(1) In defamation proceedings a person has a
defence if he shows that – (a) he was not the author, editor or publisher of
the statement complained of, (b) he took reasonable care in relation to its
publication, and (c) he did not know, and had no reason to believe, that what
he did caused or contributed to the publication of a defamatory statement.”
It should be
noted that for the defence to succeed (a) and (b) and (c) have to be established
by the defendant. Section 1
continues:
“(2) For this
purpose…. ‘publisher’ [has] the following meanings, which are further explained
in subsection (3)…. ‘publisher’ means a commercial publisher, that is, a person
whose business is issuing material to the public, or a section of the public, who
issues material containing the statement in the course of that business.”
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