ORIENTAL PRESS GROUP LTD AND ANOTHER v. FEVAWORKS SOLUTIONS LTD

HCA2140/2008 & HCA597/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2140 OF 2008

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(HEARD TOGETHER)

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J U D G M E N T

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The plaintiff’s application

1.  The plaintiffs in both actions herein (HCA2140/08 and 597/09) are seeking interlocutory injunction against the defendants (“Fevaworks”) in 2140, and “Fevaworks” & “Alive! Media” in 597, to restrain them from publishing certain allegedly defamatory statements on the Internet against the plaintiffs.

2.  The matrix of facts together with the legal principals involved are similar and these 2 cases are considered together in one judgment.  An understanding of the operation of the defendants is necessary before the consideration of the alleged defamation and legal principles.

The defendants and their operation

3.  Golden Computer Centre in Shamshuipo is a famous shopping centre selling computer and its related products.

4.  According to the Project Manager of Fevaworks, Mr Lam Cho Shun, a group of people interested in computer and information technology set up a website at <www.hkgolden.com>.  Information and content of the Website was provided by merchants of those shops at the Centre.  This website provided a platform for merchants to exchange information on computer products and expose the improper operating method of unscrupulous merchants in order to warn customers.  This platform is called “the Forum” at <forum.hkgolden.com>.  Fevaworks and Alive! Media operated the said Website since 2003.  The Forum was later classified into forums of various topics and the leisure channel (called “吹水台”) is amongst the more popular channels.

5.  All discussion topics posted on the Forum can be read by the public on the Website, but only members registered on the Forum can post anything on the Forum.

6.  In order to register as a member, one must “accept the Terms of Services”.  One of the important terms is that the Forum prohibits any content in the messages communicated among the members that contain intimidation, defamation, pornography, harassment and intrusion, and any infringement of third parties intellectual property right or unlawful act arising out of such content.

7.  After accepting the “Terms of Service”, one must provide one’s personal information including his true name, nickname which will appear in the post that he will publish on the Forum, his email address and other information.  However the Forum only accepts email addresses from about 1,000 domains provided by Internet Service Provider, educational institutions, and large established companies, but does not accept email addresses provided by web-based email services like hotmail, yahoo mail and gmail.

8.  Thus the Forum can identify all members posting their messages on the Forum itself, though nicknames were used as appeared to other readers including the general public.  If any member has violated any of the discussion rules, his membership account would be suspended by the Forum and the same email cannot be used for registration purposes again.  That member cannot post any message on the Forum during the suspension period unless he can successfully open another account by registering another email address acceptable to the Forum.

9.  There are two types of membership: general and advanced member.  A general member can post 5 topics in leisure channel and 5 topics in other channels and unlimited reply per day whereas an advanced member can post 10 and 10 in the aforesaid channels respectively.  In order to become an advanced member one has to complete an application form downloaded from the website and send the same together with his identification proof by fax or post to Fevaworks or to attend its retail outlet in person to complete the registration process.  Staff of the Fevaworks will check his identification document in order to verify his identity.

10.  In participating a discussion of the Forum, a member will log into the website with his given password.  On the Front Page, a list of channels is displayed.  In the front page, members are also reminded of the following rules of the Forum :

“·    內容禁止含有粗言穢語、嘔心、或色情的文字和圖片。

       (contents containing offending language, or indecent or pornographic text or graphics, are prohibited)

·     請勿作人身攻擊。請尊重每一位留言者。

       (Please respect every member posting messages.  Personal attacks are not allowed)

·     嚴禁重覆留言、cross post或off-topic。

       (repeated messages, cross post or posting messages which are off topic are strictly prohibited)

·     嚴禁提供盜版軟件或有版權之物品以供網友下載。

       (provision of pirate software or copyright protected articles for downloading is strictly prohibited)

·     嚴禁在討論區上進行未經授權的商業活動。

       (unauthorized commercial activities are strictly prohibited)

·     嚴禁刊登他人或自己的私人資料，包括相片、電話號碼和地址。

       (dissemination of personal data is strictly prohibited)

·     嚴禁未經授權而擅自轉載其他雜誌及網站的內容。

       (unauthorised reproduction of the contents of magazines or other websites is strictly prohibited)

·     所有內容均為留言者個人意見，與本站立場無關。如任何人士在本站作出違規行為(如誹謗或侵權) ，本站將會在要求下交出留言者資料作日後追究用途。

       (all contents of the postings at the Forum only represent the personal opinion of the relevant subscriber who made the relevant posting, and do not any way represent the stance or position of the defendants)

       本站有權在不作通知的情況下刪除討論區上的任何內容。刪除的標準和尺度由本站管理員掌握

       (the defendants have the right to delete any content of the Forum without prior notice to the relevant subscriber.  The administrator of this site has discretionary power on the standard and measures of deletion.)”

11.  A member can “post (發表)” a topic or “reply (回覆)” to an existing topic and before that, he can “review (預覽)” his own content.  But once the topic or reply is made public, all visitors can see the topic/reply content.  A member cannot modify or delete a topic/reply of his after it goes live.  What he has posted in the Forum will appear immediately on the Forum.  The Forum does not edit or filter any post published by any member of the Forum.  In reality, the Forum acts like a corkboard which a member can pin his expressions whatever he wishes to pin thereon.

12.  However there are 2 administrators of the Forum working between 10:00 a.m. and 7:00 p.m. to monitor the Forum discussion.  This intended to ensure that members would follow the rules of the Forum, various actions would be taken in cases of violation of the rules.

13.  According to Lam, the plaintiffs whose affirmation was made by a Mr Lai Kam Wa, assistant to their Honorary Chairman Mr Ma Sik Chun, have a number of misunderstanding and misconception of the how the system of the website operates.  For instance, the plaintiffs claim that :

“the defendants chose to receive and store electronic message (including the Offending Words) on the Website, and to make them available to members of the public.  The electronic messages (including the Offending Words) were stored on the Website on a permanent basis, or that they can be viewed by any member of the public from any computer, located anywhere in the world.”

14.  In fact, Lam said that this is incorrect.  Each messages submitted by a member is directly uploaded by the system & it will instantaneously appear in the Forum.  The defendants do not exercise any control in terms of editing, scrutinising or otherwise modifying the information transmitted.

15.  In one sense, the defendants have even less control than a librarian who would at least catalogue a book before this publication is put on the shelf and made available to all readers.  Thus a library would have prior knowledge of the existence of a publication.  Here on a website, in any minute there may well be hundreds or even thousands of messages uploaded onto the system and appeared in the Forum without the prior knowledge of the host of the website.

16.  Secondly, Lai assented that the defendants are not subordinate distributors because they “hosted” or “cached” the Website.  Lam said this is another misconception.  “Hosting” a website has, he explained in the previous paragraph.  Lam explained that :

“‘Caching’ is the technical term for the process by which ISPs (Internet Service Providers) store information temporarily to allow the Internet to work better.  The process is an automatic, intermediate and temporary storage of information for the sole purpose of making more efficient onward transmission of information to users.  ISPs frequently “cache” or temporarily store commonly accessed pages on their computer systems so that those pages will be more quickly accessible to users.  As I have noted previously, messages posted by users of the Forum are not in any way “cached” and perused by the defendants’ staff before they appear on the Forum.  Messages once deleted are not retained in a “cache” or archived and all access to them is lost.”

The alleged Defamatory statements

(1)     The 1^st offending words

17.  On 27 March 2007, a discussion topic was posted and titled as “點解今日客觀公正既東方同太陽報無霞姐果段新聞既?” (Why is it that the objective and righteous newspapers, The Sun and Oriental Daily do not have the story of Sister Ha?).

18.  On 28 March 2007 at 11:02 a.m., in response, one “徐晃” posted/published on the Website his comment : “身有屎”.  The same comment was posted/published by one “一時俊傑” on the website at 12:26 p.m. on the same day, i.e. 28 March 2007.  The plaintiffs pleaded that a true translation thereof is : “They are guilty.”

19.  The liberal meaning of the expression could be “They had faeces on their body,” which might only mean that they have something to hide.  The plaintiffs pleaded that the sting of the defamation is that the offending words meant “the plaintiffs and/or Oriental Daily News and/or the sun was guilty of the murder of Sister Ha (霞姐).

20.  The background to the murder can be summarised in the judgment of Stuart Moore VP in HKSAR v Lo Hon-Hing & Ors, CACC107/2007 (unreported, 12 September 2008) at §6 :

“In short, the apparent motive for killing the deceased was that a complaint had been lodged with the Oriental Daily on behalf of the deceased by her husband, Mr Lau, to the effect that the local newspaper distributor, ‘Ching Wui’, had introduced a new practice which no longer allowed newspaper vendors to return unsold copies of the Oriental Daily.  This resulted, therefore, in the vendors having to pay for copies of that newspaper which they were unable to sell.”

21.  On 26 March 2007 the men who were responsible for the murder of Sister Ha were tried and convicted in the High Court.

22.  Ms Janice Cheung, counsel for the defendants, submitted that the 1^st Offending words are not unarguably defamatory.  The murder was initiated only by the distributor, Ching Wui.  There is no evidence that the plaintiffs were involved in the murder.  However, it is”connected” with the plaintiffs as the subject matter was that Ching Wui would not allow vendors to return unsold copies of the Oriental Daily.

23.  Maybe the best expression to interpret the expression of “身有屎” is in the Chinese expression : “我雖不殺伯仁，伯仁因我而死”。  (Even though you may not have directly caused their death, you are indirectly responsible.)  In any event, at this interlocutory stage, the expression of “身有屎” is not unarguably defamatory.

24.  Furthermore, when a letter of complaint was sent to Fevaworks by the plaintiffs on 27 October 2008 at 11:53 hrs, Fevaworks replied at 15:20 hrs that the posting would be removed immediately and it was so removed.

25.  However the plaintiffs contended that some of the 1^st offending words were still available for viewing on 16 April 2009.  The defendants explained that they were inadvertently left on the website by pure oversight.  They were removed immediately after Lai’s affirmation was served on 15 September 2009.

(2)     The 2^nd offending words

26.  On 28 October 2008 a discussion topic appeared and titled :

「[白粉報真係好仆街]報販霞姐被殺案報紙用作洗黑錢」

Translated :

“[White powder newspaper go to hell] The murder of the newspaper vendor Sister Ha Newspaper used to launder drug money”.

27.  Under the section/heading “報紙用作洗白粉錢” : One “去支” posted/published the 2nd offending words : 

「馬惜珍在香港，負責收白粉、洗黑錢，再把賺來的錢投資在一般貿易公司，1969 年，他又創辦『東方報業集團』，旗下主要報紙即是極力親台的中文東方日報，後來發展成為全港第一大報，報紙除了用作洗黑錢外，又作毒品消息通傳。」

Translated :

“Ma Sik Chun was responsible for dealing in ‘white powder’ (i.e. heroin) and laundering drug money in Hong Kong.  He then re-invested the money in general trading companies.  In 1969, he established the ‘Oriental Press Group’, the flagship newspaper of which was the pro-Taiwan Chinese-language ‘Oriental Daily News’, which later became the number 1 newspaper in Hong Kong.  Apart from being used for laundering money, the newspaper is also used for dissemination of news for drug trafficking.”

28.  In the hearing on 29 September 2009, both parties accepted the following 3 facts which are common general knowledge to the people of Hong Kong :

(i)      Mr Ma Sik Chun was the founder of Oriental Daily in 1969 but in 1978 he together with his brother Ma Sik Yu were arrested and charged for drug trafficking;

(ii)      before trial, they had jumped bail, went to Taiwan and Ma Sik Chun is still living there; and

(iii)     at common law, a person is presumed to be innocent until he is convicted of a criminal offence.

29.  Apparently, the defendants accepted that the 2^nd offending words are defamatory.  When they were notified by email and by post on 24 October 2008, these words were removed by them within about 3.5 hrs.

(3)     The 3^rd offending words (in 597).

30.  On 21 January 2009, one 「湯川學」posted/published under the discussion topic “東方日報創辦人是通緝中大毒梟”, (“The founders of Oriental Daily News are big drug traffickers wanted by the Government”), the following offending words :

(i)      1^st paragraph :

「馬廷強乃香港東方日報創辦人之一馬惜如之子，馬廷強之父及叔叔馬惜如、馬惜珍，是仍在通緝中的大毒梟」

Translation:                            

“Patrick Ma is the son of Ma Sik Yu, who founded the Oriental Daily News.  Patrick Ma’s father and uncle Ma Sik Yu and Ma Sik Chun were big drug traffickers wanted by the Government.”

(ii)      3^rd paragraph :

「東方日報創辦人是通緝中大毒梟」

Translation:

“The founders of Oriental Daily News are big drug traffickers wanted by the Government.”

(iii)     5^th paragraph :

「馬惜珍在香港，負責收白粉、洗黑錢，再把賺來的錢投資在一般貿易公司，1969年，他又創辦東方報業集團，旗下主要報紙即是極力親台的中文東方日報，後來發展成為全港第一大報，報紙除了用作洗黑錢外，又作毒品消息通傳。由於東方報業集團的創辦人馬氏家族被證實涉及販賣毒品及有三合會犯罪組織十四 k背景，創辦人馬惜珍更旋即匿居臺灣，在數十年一直被香港政府通緝中，通緝令至今有效。所以有部份港人將東方日報和太陽報稱為‘白粉報’，而馬氏後人亦被統稱為‘白粉馬’。」

Translated :

Ma Sik Chun was responsible for dealing in ‘white powder’ (i.e. heroin) and laundering drug money in Hong Kong, he then re-invested the money in general trading companies, in 1969, he established the ‘Oriental Press Group’, the flagship newspaper of which was the pro-Taiwan Chinese-language ‘Oriental Daily News’, which later became the number 1 newspaper in Hong Kong. Apart from being used for laundering money, the newspaper is also used for dissemination of news for drug trafficking.  The founders of Oriental Press Group, the Ma family, have been confirmed to have been involved in drug trafficking and were members of the triad gang 14K, the founder Ma Sik Chun even fled to hide in Taiwan and was wanted by the Government of Hong Kong for several decades and the warrant for his arrest is effective to date.  Thus, some Hong Kong people called Oriental Daily News and The Sun ‘white powder (i.e. heroin) newspapers’, and the offspring of the Ma family are collectively called ‘white powder Ma’.”

31.  The aforesaid words appeared at about 11:25 p.m. on 21 January 2009 when the defendants’ staff was off-duty.  They were discovered by the defendants’ staff in the morning, on the next day 22 January 2009 and they were removed at about 11:44 a.m. without any complaint or notification from the plaintiffs.  In other words they were permanently deleted from the website and have not been archived or cached.  HCA597 was subsequently commenced by the plaintiffs on 3 March 2009. 

(4)    64 further Defamatory Statements

32.  The defendants contended that further to the 3^rd Offending Words, there were 64 further & similar defamatory statements appearing between 4 February 2009 and at least 20 June 2009.  The plaintiffs put the defendants on notice by their Lai’s affirmation served on the defendants’ solicitors on 15 September 2009.  They were removed after lunch by the defendants on 18 September 2009, i.e. after the first hearing of the present proceedings.

33.  Should an interlocutory injunction be granted against the defendants?  The legal principles applicable to interlocutory injunction in respect of defamation and publication on the Internet Website shall be discussed herein below first.

Legal Principles

34.  Both sides accepted that the principles of interlocutory injunction as laid down in the case of American Cynanid v Ethicon are not applicable.

35.  Ms Cheong for the defendants relied heavily in the decision of Recorder J. Leong, SC in Poon Ying Hon v. CCT Telecom Holdings Ltd & Anor, HCA3431/2001 (unreported, 17 August 2001) at §§27-29 and 40 :

“[27] The nature of the jurisdiction is defined in Gatley on Libel and Slander, 9^th Edition at paragraph 25.2 as follows :

The jurisdiction to grant interlocutory injunctions to restrain publication of defamatory statements is ‘of a delicate nature’, which ‘ought only to be exercised in the clearest cases’.  That was stated by Lord Esher M.R. in Coulson v. Coulson and it encapsulates the general approach of the Court.  The reluctance to grant peremptory injunctions is rooted in the importance attached to the right of free speech.  Thus the Court will only grant an interlocutory injunction where,

(1)   the statement is unarguably defamatory;

(2)   there are no grounds for concluding the statement may be true;

(3)   there is no other defence which might succeed;

(4)   there is evidence of an intention to repeat or publish the defamatory statement.

… The practice established in applications for interlocutory injunctions by American Cyanamid v. Ethicon, of not considering the merits of the case once it had been shown there was a serious issue to be tried, but determining where the balance of convenience lay between the parties as regards the imposition of a restraining order, has been rejected as inappropriate in defamation cases.

[28] The leading authority for this important principle is Bonnard v. Perryman [1891] 2 Ch. 269, 284 where Lord Coleridge said :

But it is obvious that the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong.  The right of free speech is one which it is for the public interest that individuals should possess, and indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel.  Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions.

[29] The stringent application of the jurisdiction to a plaintiff was described in Target Newspapers Limited v. Narain [1989] 2 HKC 16 at 23G as ‘the extremely difficult hurdle he must clear in order to obtain interlocutory injunctive relief—a task that almost invariably is greater than that which a plaintiff in a libel action must face at the trial itself.’”

36.  Ms Cheung also relied on Chan Shui Shing Andrew & Ors v Ironwing Holdings Limited [2001] 2 HKC 376; Gatley on Libel & Slander, 11^th ed., §26.2 at pp. 934-932 and The Law of Defamation and the Internet, 2^nd ed., at §20.11 at pp. 277–278 for the proposition that interim injunctions would ordinarily not lie against Internet intermediaries.

37.  Further in respect of “publication” by ISP, Ms Cheung relied on the case of Bunt v Tilley & Ors [2007] 1 WLR 1243.  Here the claimant sought to establish his cause of action against the internet service providers (the “ISPs”) on the basis that the authors published the words complained of “via the services provided” by the ISPs.  Eady J struck out the claimant’s claim.  His Lordship (at §§21-23) propounded the test of publication as follows :

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

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

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

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

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

His Lordship (at §30) further held that :

“[30] In so far as the claimant seeks support in Godfrey v. Demon Internet Ltd. [2001] QB 201 case, there are plainly significant distinctions.  Morland J deprived the ISP in that case from protection under s. 1 of the 1996 Act because it had continued publication of the same defamatory statements after Mr Godfrey’s letter had been received, asking for them to be re-moved from the Usenet news server.  Here, by contrast, the claimant is relying upon separate postings.  In these there is no reference to batteries, but rather to suggestions of fraud and ‘kiddie porn’.  There are no pleaded facts to suggest any knowing participation by AOL in the publication of these words.”

His Lordship concluded (at §§36-37) further held that :

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

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

38.  Mr Lawrence Ng, who appeared with Mr Christopher Chan for the plaintiffs relied heavily on the case of Godfrey v Demon Internet Ltd [2001] QB 201 (per Morland J) as the direct authority on the contention that an ISP, being the host of websites on which there are defamatory statements posted by third parties can be sued to have published the defamatory comments.

39.  However Ms Cheung has sought to distinguish this case on the peculiar facts involved.  (This was also distinguished by Eady J in Bunt v Tilley, op. cit. §[30].)  The defendants therein are carrying on the business of an ISP.  An unknown person had posted an article defamatory of the plaintiffs by using another service provider.  The plaintiff informed the defendants that the article was defamatory and asked them to remove it from their news server.  The defendants failed to do so and it remained available on the server for some 10 days until its automatic expiry.  It was held by Morland J that the defence should be struck out as the defendants could have chosen to obliterate the posting complained of.  Although they were not a publishing within the meaning of section 1(1) and (3) of the Defamation Act 1996 and could therefore satisfy section 1(1)(a) of that Act, once they knew of the defamatory content of the posting and chose not to remove it from their news server, they could no longer satisfy the additional requirements of section 1(1)(b), that they took reasonable care in relation to the publication, or section 1(1)(e), that they did not know and had no reason to believe that what they did caused or contributed to the publication.  Accordingly that parts of their pleaded defence which relied on section 1(1) of the 1996 Act would be stuck out.

40.  I agree with Ms Cheung’s submission.  This case cannot be authority to support the contention all ISPs are publishers of all statements in their websites.  In fact the contrary is true.  They are only publishers when they become aware of the defamatory content of any posting and choose not to remove it from their server.

Innocent dissemination

41.  Collin on The Law of Defamation and the Internet, 2^nd ed. at §81 said :

“Elements of the defence

The common law relieves defendants who are ‘subordinate distributors’ of defamatory publications from liability upon proof that :

·        they did not know that the publication complained of contained a libel;

·        they did not know that the publication was of such a character that it was likely to contain a libel; and

·        the absence of knowledge was not due to any negligence on their part.”

42.  Ms Cheung further relied on the following cases concerning “Internet intermediaries who host or cache content on their computer system, namely :

(a)      the Canadian case of Hemming v Newton [2006] BCJ. No. 3053 :

          Hemming sued Newton for libel and defamation as a result of a posting and a story on a P2P website, which is an acronym for peer-to-peer and refers to file sharing between a group of people over the internet by access to each other’s harddrives.  Newton was not the author of the story and apparently had no control over the P2P website.

“[14]… the amended statements of defence alleges that Mr. Newton was an innocent disseminator as ‘he did not see or authorize the Posting before it occurred and removed it in good faith upon receipt of Hemming’s complaint.’  In my view, Mr Newton has pled sufficient facts to enable Ms Hemming to know why he contends he was an innocent disseminator; i.e. he did not see or authorize the posting before it occurred.

[15] Ms Hemming goes further and asserts that it would be an abuse of process for the defence to stand because Mr Newton authored the story the same day as the posting and the story referred to the posting.  Ms Hemming relies on Godfrey v Demon Internet Limited, [1999] E.W.H.C.Q.B. 244 for the proposition that because Mr Newton knew of the posting the same day it is plain and obvious that the defence of innocent misrepresentation will not succeed.  However, in Godfrey the plaintiff was only claiming damages for libel in respect of the posting after the defendant had knowledge of it, whereas in this case Mr Newton alleges he did not have knowledge of the posting, in that he did not see or authorize the posting, before it occurred.  This is not the sort of defence that could be or should be disposed of on a pleadings application as there are issues of fact that have to be determined: Menear, supra.  Assuming the facts pled are true, it is not plain and obvious that the defence will fail.”

(b)     the U.S. case of Cubby Inc. v. CompuServe Incl (1991) 776F. Supp. 135 :

          CompuServe’s CIS product is in essence an electronic, for-profit library that carries a vast number of publications and collects usage and membership fees from its subscribers in return for access to the publications.  CompuServe and companies like it are at the forefront of the information industry revolution.  High technology has markedly increase the speed with which information is gathered and processed; it is now possible for an individual with a personal computer, modem, and telephone line to have instantaneous access to thousands of news publications from across the United States and around the world.  While CompuServe may decline to carry a given publication altogether, in reality, once it does decide to carry a publication, it will have little or no editorial control over that publication’s contents.  This is especially so when CompuServe carries the publication as part of a forum that is managed by a company unrelated to CompuServe.

“With respect to the Rumorville publication, the undisputed facts are that DFA uploads the text of Rumorville into CompuServe’s data banks and makes it available to approved CIS subscribers instanteously.  CompuServe has no more editorial control over such a publication than does a public library, book store, or newsstand, and it would be no more feasible for CompuServe to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so.  ‘First Amendment guarantees have long been recognized as protecting distributors of publications… Obviously, the national distributor of hundreds of periodicals has no duty to monitor each issue of every periodical it distributes.  Such a rule would be an impermissible burden on the First Amendment.’  Lerman v. Flynt Distributing Co., 745 F.2d 123, 139 (2d Cir. 1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2114 85 L. Ed. 2d 479, (1985)…

Technology is rapidly transforming the information industry.  A computerized database is the functional equivalent of a more traditional news vendor, and the inconsistent application of a lower standard of liability to an electronic news distributor such as CompuServe than that which is applied to a public library, book store, or newsstand would impose an undue burden on the free flow of information.  Given the relevant First Amendment consideration, the appropriate standard of liability to be applied to CompuServe is whether it knew or had reason to know of the allegedly defamatory Rumorville statements.”  [emphasis supplied]

Application of the legal principles

43.  Ms Cheung therefore submitted that it is at least arguable that the defendants would have the common law defence of innocent dissemination.  In other words, it is not the case that the defendants would have no arguable defence at all.  The followings are the arguable defences, namely :

(1)     The 1^st offending words of “身有屎” are not unarguably defamatory.

(2)     In respect of the 1^st , 2^nd & 3^rd offending words and the 64 statements, it can be said that the defendants have good arguable defence in that :

          (a)    there was no publication by the defendants;

          (b)    the defendants may only be innocent disseminators; and

          (c)    some of the words complained of either contain no clear references to the plaintiffs, or are otherwise not defamatory.

44.  Further, once the defendants were aware of the allegation of defamatory statements, they removed them from the website.

45.  Furthermore, it is important to balance between the interests of an alleged victim of defamatory statement and freedom of speech.  As Hoffmann LJ (as he then was) had held in R v Central Independent Television Plc. [1994] 3 All E.R. 641 at 652 :

“It cannot be too strongly emphasised that outside the established exceptions…there is no question of balancing freedom of speech against other interests.  It is a trump card which always wins.”  [emphasis supplied]

46.  As a United States Court had cogently observed, the sort of pre-posting censorship proposed by P would :

“… force the creation of full time editorial boards… throughout the country which possess sufficient knowledge, legal acumen and access to experts to continually monitor incoming transmissions and exercise on-the-spot discretionary calls or face $75 million dollar lawsuits at every turn.  That is not realistic.”

(Avvil v. CBS ‘60 Minutes’ 800 F Supp 928 (Ed Wa, 1992) at 932 (Lexis copy))

47.  As submitted by Ms Cheung for the defendants, such approach inevitably favours large publishers like P and discriminates against small internet website operators like Fevaworks and Alive! Media :

“More than merely unrealistic in economic terms, it is difficult to imagine a scenario more chilling on the media’s right of expression and the public’s right to know…” (Avvil v. CBS (op. cit.) at 932)

(See also Cheng v.Tse Wai-chun (2000) 3 HKC.F.A.R. 339 at 345, per Li CJ; at 325C, per Lord Nicholls NPJ; Basic Law, Art. 27.)

Impossibility of Compliance

48.  The defendants contended that it is virtually impossible to comply with the terms of the injunction.   In the first place, there is no software which can filter or prevent any messages containing certain keywords.

49.  Secondly, it is impossible for the defendants to censor messages before they were published.  At any given time, there may lie about 30,000 users online with may be over 5,000 posts generated in an hour.  Lam estimated that they need to have at least 160 staff on a 24-hour basis everyday if every message to be posted required to be censored.  The defendants’ said they simply do not have the financial resources to do so.  Even then, it is practically impossible to determine whether a message is defamatory or not.  It is not possible for them to consult legal advisers when something appears on the forum which refers to the plaintiff or other complainants.

50.  The defendants have, in the circumstances, put in reasonable safeguards in having enough staff on hand to address and deal with breaches of the Forum rules.  The 3^rd offending words as in HCA596 were actually discovered by the staff of the defendants on 22 January 2009, even before the Action was commenced.

51.  Upon receipt of any complaint regarding any message on the Forum, the defendants’ staff would handle it as soon as possible.  If it is sustainable, the defendants would remove the irrelevant material immediately.  This was demonstrated in the plaintiffs’ complaints herein.

52.  Everyone of the public can contact the defendants staff through the email address “info@hkgolden.com” found at the bottom of every page on the website.  This was done in respect of the 2^nd offending words; after the plaintiffs emailed the defendants at 15:30 on 24 October 2009.

53.  But the plaintiffs have not always made use of this device.  For example, in respect of the 64 allegedly defamatory statements, the plaintiffs did not make use of this email channel.  The plaintiffs chose not to notify the defendants prior to the issue of their summonses.  Instead, the plaintiffs brought them to the defendants’ notice through the affirmation of Kenneth Lai.  The plaintiffs then complained that the defendants were slow in removing them until after lunch on 18 September 2009.  In spite of the fact that the plaintiffs have not given any particulars on how or in what manner the words are defamatory, the defendants have removed them.

54.  On the other hand, the defendants have already indicated that they are prepared to disclose the identities of the message posters if a Court Order is made against it then.  All users of the Forum are traceable as explained herein before.

Conclusion

55.  I accept the aforesaid submissions of the defendants.  Accordingly, I do not consider the Court should exercise its discretion to grant an interlocutory injunction against the defendants.  The plaintiffs’ summons is therefore dismissed.

56.  There shall also be an order nisi for costs to the defendants in both actions in any event.  Since both sides were represented by 2 counsel, there should also be a certificate for 2 counsel for the defendants.