ORIENTAL PRESS GROUP LTD AND ANOTHER v. FEVAWORKS SOLUTIONS LTD

HCA 2140/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2140 OF 2008

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BETWEEN

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J U D G M E N T

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INTRODUCTION

1.  The plaintiffs of HCA 2140/2008 commenced that action in October 2008 (“the Oct 2008 action”).  They allege the defendant therein (“Fevaworks”) should be held liable for publishing libel on the internet in March 2007 and in October 2008.

2.  After the commencement of the Oct 2008 action, the plaintiffs of HCA 597/2009 commenced another action in March 2009 (“the Mar 2009 action”).  They allege the defendants therein (Fevaworks and “AMC”) should be held liable for publishing libel on the internet in January 2009.

3.  The Oct 2008 action and the Mar 2009 action will be called “the actions” below.

4.  Save specifically mentioned below, no distinction has been made among the various plaintiffs.  For convenience, they will be called “the plaintiffs” below.

5.  Similarly, although the importance of the defendants’ corporate identities has been hinted at earlier, by the time of the trial of the actions this is not relied upon as part of their defence.  For convenience, they will be called “the defendants” below.

6.  The defendants deny liability in the actions.

THE PARTIES

7.  The corporate plaintiffs have been operating the business of publishing the Oriental Daily News and The Sun, two daily Chinese newspapers widely circulated in Hong Kong.  The personal plaintiff occupies the post of the honorary chairman; he is the son of a Mr Ma Sik Chun (“Ma”).

8.  The defendants have been the provider, administrator and manager of a website on the internet with the address http://www.hkgolden.com and known as “香港高登”.  Among other things, the website hosts an internet discussion forum with the addresses http://forum4.hkgolden.com and http://forum7.hkgolden.com.  The channel of the discussion forum relevant to the action is known as “吹水台”.

9.  As the phrase “discussion forum” implies, an internet discussion forum is an on-line platform where subscribers to the forum can raise, and join in, various discussion topics.  Apart from being hosted on the internet instead of the real world, an internet discussion forum operates very much along the working principles of bulletin boards or notice boards which are commonly found in schools, universities, clubs, hospitals, supermarkets and other similar establishments.

10.  Messages posted onto an internet discussion forum usually originate from the subscribers rather than the forum provider, administrator and manager.  Discussions on an internet discussion forum, like messages posted on bulletin boards, can be read by the public.  But because of the popularity of the internet, the readership of an internet discussion forum can be a lot greater than conventional bulletin boards.

11.  In relation to the defendants’ discussion forum, subscribers who start or join in the discussion retain a high degree of anonymity, although their real identity can still be traced by tracking down their IP address and/or e-mail address.  The degree of the defendants’ moderation, which will be set out in more details below, can be said to be minimal.

THE ISSUES

12.  Three main issues have been raised as regards the defendants’ liability:-

(a) whether the words complained of are defamatory and/or defamatory of the plaintiffs;

(b) whether the defendants were the publishers of those words;

(c) whether the defence of innocent dissemination is available to the defendants.

ARE THE WORDS DEFAMATORY OF THE PLAINTIFFS?

13.  As stated above, the words complained of appeared on the defendants’ discussion forum on 3 occasions, namely, March 2007, October 2008 and January 2009.  They will be dealt with under separate sub-headings below.

14.  The legal principles for determining the meaning of the words are trite and have been succinctly set out in numerous authorities and practitioners’ textbooks such as Gatley on Libel and Slander (2008) 11^th Ed.

15.  For ease of reference, those principles, summarized in Oriental Daily Publisher Ltd. and Another v. Ming Pao Holdings Ltd. and Others, HCA 607/2008 (28 May 2010), are quoted below:-

“23. Gatley on Libel and Slander (2008) 11^th Ed. recognised that there may be difficulty in producing a comprehensive definition of the meaning of “defamatory”; the following has been offered as (at least) a working definition of its meaning: a defamatory imputation is one to the claimant’s discredit, or which tends to lower him in the estimation of others or causes him to be shunned or avoided; or exposes him to hatred or ridicule: Gatley, para. 2.1, text to nn. 4 to 7.

24. The court puts itself in the position of an ordinary reader when construing the article in question; that is, the interpretation of allegedly defamatory words is determined by how an ‘ordinary reader’ reasonably understands those words: Gatley, para. 3.13 and 3.24.

25. The fictitious ‘ordinary reader’ is described as one with the following temperament:-

‘He is a sort of half way house between the unusually suspicious and the unusually naive. He is essentially fair-minded and reasonable and does not jump to hostile conclusions on flimsy evidence; but he may be guilty of a certain amount of loose thinking and does not read a sensational article with cautious and critical care ... and his capacity for implication or drawing inferences is greater than the lawyer’s ... The layman reads in an implication much more freely, and ... is especially prone to do so when it is derogatory’ (Gatley, para. 3.25).

See also Charleston and Another v. News Group Newspapers Ltd. and Another [1995] 2 AC 65, 71F-72F (see also para. 52 below).

26. The words have to be understood in context and taken as a whole, provided it all relates to the same defamatory meaning: Gatley, para. 3.28 to 3.30 and 3.32; 25(1) Hong Kong Halsbury (2007 Reissue), para. 380.536. Words are to be taken in their most natural and obvious sense. The Plaintiff is not permitted to select any isolated passage(s) in an article and complain of that alone if other part(s) of the article throw a different light on the passage(s) in question.

27. There are two stages to the process of determining whether words are defamatory: first to decide what they mean, and then to decide whether that meaning is defamatory: Gatley, para. 2.1. The purpose of the exercise is to ascertain the ‘sting’ of the defamation (if any).

28. A cause of action still lies even if the words were not believed by the audience (unless they were totally beyond belief): Gatley, para. 2.1, text to nn. 15 and 16. Thus:-

‘For the purposes of the law of defamation, the fact that the same words can mean different things to different people is ignored; the court seeks to determine and act upon the one and only meaning that the readers as reasonable persons should have collectively understood the words to bear; this is the natural and ordinary meaning’: 25(1) Hong Kong Halsbury (2007 Reissue), para. 380.535.”

(a) The Mar 2007 Words

16.  The statement of claim sets out the relevant words:-

“On 28^th March 2007, in response to a discussion topic entitled 「點解今日客觀公正既東方同太陽報無霞姐果段新聞既?」 … posted on the Website … , the [defendants] published and/or caused to be published the following words defamatory of and concerning the [plaintiffs] …

A comment posted/published by one ‘徐晃’ on the Website at 11:20am on 28^th March 2007:

‘身有屎’ …

A comment posted/published by one ‘0909009’ on the Website at 11:27am on 28^th March 2007:

‘一睇就知係一單好普通既謀殺案啦’

A comment posted/published by one ‘一時俊傑’ on the Website at 12:26pm on 28^th March 2007:

‘身有屎’ … ” (para. 4 thereof).

(“the Mar 2007 words”)

17.  The plaintiffs contend that the words were defamatory of them in that they were alleged to be guilty of, or were involved in, the murder of Sister Ha, that they deliberately avoided reporting the trial and conviction of the offenders and that the two newspapers were biased and unjust.

18.  In their closing submission, the defendants argued that, taken together, the words:-

“… could amount to an observation that the two named newspapers omitted to report an important news item … because they had something to hide. Those comments do not accuse any of the plaintiffs of being involved in the murder of Sister Ha and merely query whether the two newspapers mentioned had something to hide … ” (para. 18 thereof).

19.  I disagree with the above argument.  To say that the plaintiffs have something to hide in relation to a serious crime of murder is in effect to insinuate a derogatory imputation that they were (at least) in some way connected with the crime (even though the precise connection was not stated; and hence was left to the reader’s imagination).  In other words, the imputation was the plaintiffs were in some way accomplices to that crime. Alleging someone to have committed a crime is defamatory: Gatley, para. 4.3 to 4.12.

20.  I also find the words to impute that the plaintiffs deliberately avoided to report the case of Sister Ha.

(b) The Oct 2008 Words

21.  The statement of claim avers:-

“On 24^th October 2008, in response to the discussion topic entitled 「[白粉報真係好仆街] 報販霞姐被殺案 報紙用作洗黑錢」… appearing on the Website, and under the section/heading “報紙用作洗白粉錢” …, the [defendants] published and/or caused to be published the following words defamatory of and concerning the [plaintiffs], which was posted/published by one 去支 on the Website …

‘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。’” (para. 7 thereof).

(“the Oct 2008 words”)

22.  The words were said to impute the defamatory meaning that the plaintiffs and the Oriental Daily News were founded with drug-money, that they were involved in drug trafficking and/or money-laundering activities, that they were involved in illegal and/or immoral activities and that they were corrupt, illegal, immoral and unethical.

23.  In their closing submission, the defendants merely refuse to admit the words were defamatory of the plaintiffs without giving any reasons in support.

24.  The corporate plaintiffs were expressly named. In context, the reference to “白粉報” must be a reference to the Oriental Daily News.  As stated above, alleging someone to have committed a crime is defamatory: Gatley, para. 4.3 to 4.12.  Both money laundering and passing information concerning drug trafficking are criminal offences.

25.  I therefore agree with the plaintiffs the words were defamatory of them in the manner set out in para. 22 above.

(c) The Jan 2009 Words

26.  The statement of claim complains that:-

“On 21^st January 2009, under the discussion topic “東方日報創辦人是通緝中大毒梟” posted/published by 「湯川學」dated 21^st January 2009 on the Website … the [defendants] published and/or caused to be published the following words defamatory of and concerning the [plaintiffs] …

‘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，是仍在通該中的大毒梟’ …

‘東方日報創辦人是通緝中大毒梟’

‘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,在數十年來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”。’” (para. 6 thereof).

(“the Jan 2009 words”)

27.  The plaintiffs contend those words were defamatory in imputing the two newspapers were founded with drug-money, that they were involved in drug trafficking and/or money laundering activities, that they were involved in illegal and/or immoral activities and that they were corrupt, illegal, immoral and unethical.  Those words also imputed that the personal plaintiff was a member of a family involved in drug trafficking and/or was a member of or associated with the 14K triad society.

28.  Again, the defendants do not admit the words were defamatory of the plaintiffs but no reasons are given in support.

29.  For reasons similar to those set out in para. 24 above, I find that the imputation of the words was as stated in para. 27 above.

WERE THE DEFENDANTS THE PUBLISHERS OF THE WORDS?

30.  The dispute about this aspect between the parties is whether the defendants, as the provider, administrator and manager of the internet discussion forums, were in law the publishers (as the plaintiffs contend) or mere subordinate distributors (sometimes called “subordinate publishers” or “subordinate disseminators”) (as the defendants contend).

31.  In arguing for the defendants being the publishers of the libel, the plaintiffs rely especially on the following authorities:-

(1) Godfrey v. Demon Internet Ltd. [2001] QB 201;

(2) Thompson v. Australian Capital Television Pty. Ltd. (1996) 186 CLR 574.

32.  The decision in Godfrey must have been based on the legal principle that:-

“At common law liability for the publication of defamatory material was strict. There was still publication even if the publisher was ignorant of the defamatory material within the document. Once publication was established the publisher was guilty of publishing the libel … ” (at p. 207).

That case involved an internet service provider which provided subscribers (sometimes described as “customers” in the judgment) with, among other things, access to USENET bulletin boards. An unknown person posted a message defamatory of the plaintiff. This was accessible from the defendant’s internet news server and could be downloaded by subscribers.

33.  The court held the internet service provider to be liable.  As a fact, the defendants were informed of the posting about 4 days afterwards but they did not remove it until about 10 days after being informed. The court said in the judgment:-

“In my judgment the defendants, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber to their ISP who accesses the newsgroup containing that posting. …

The situation is analogous to that of the bookseller who sells a book defamatory of the plaintiff … to that of the circulating library who provided books to subscribers … I do not accept [the defendants’] argument that [they] were merely owners of an electronic device through which postings were transmitted. The defendants chose to store … postings within their computers. Such postings could be accessed on that newsgroup. The defendants could obliterate and indeed did so about a fortnight after receipt” (at pp. 208-9).

34.  Thompson was a decision of the High Court of Australia.  It was concerned with the live re-transmission of a live current affairs programme by a television station, and not an internet discussion forum.  Defamatory remarks were made by an interviewee in the course of the live broadcast (and live re-transmission).

35.  The court held the defendants to be liable; but the court members’ reasons for the holding seem to be different.  Some members of the court thought that because the defendants:-

“… had the ability to control and supervise the material [they] televised … [and] the nature of a live to air current affairs program carries a high risk of defamatory statements being made. In those circumstances it would be curious if [the defendants] could claim to be a subordinate disseminator because it adopted the immediacy of the program … ” (at pp. 589-90).

Other members of the court held the defendants liable on the basis of principal and agent:-

“… A person who makes a defamatory statement to another and authorizes or intends its repetition to some third person is liable for its repetition or, more accurately, publishes the statement to that third person …

It is well settled that a person is liable for acts done by a servant in the course of his or her employment or by an agent acting within authority or with ostensible authority, notwithstanding that he or she lacks knowledge of the acts in question …

In my view, it ought now be accepted that one who publishes by authorizing a communication is not a subordinate distributor. Conversely, in my view, it ought also to be accepted that one who does not authorize the communication but participates in it in some other way is a subordinate distributor and entitled to rely on the defence of innocent dissemination …” (at pp. 595-6).

On the last-mentioned basis, the court held the defendant television station authorized the live re-transmission of the programme produced by another television station because:-

“[they] authorized the retransmission to [the] viewers of whatever was transmitted by Channel 9 without regard to its contents. Having authorized its retransmission, [the defendants] published the material in question. It cannot rely on the defence of innocent dissemination” (at p. 596).

36.  The comments in Godfrey quote above do not sit comfortably with those in Bunt v. Tilley [2007] 1 WLR 1243, a decision which naturally the defendants rely on in support of their stance.

37.  In Bunt, some defendants were the host of a website while the others were the internet service providers.  The plaintiff sued them for defamatory messages posted on the website.  The internet service provider defendants applied for, and were granted an order, striking out the claim against them.  In the striking out application, the applicants contended they were at common law not the publishers of the messages.

38.  In holding for the applicants, the court in Bunt observed that knowledge of the defamatory words can be important to whether one should be held liable:-

“When considering the Internet, it is so often necessary to resort to analogies which, in the nature of things, are unlikely to be complete. That is because the Internet is a new phenomenon. Nevertheless, an analogy has been drawn in this case with the postal services. That is to say, ISPs do not participate in the process of publication as such, but merely act as facilitators in a similar way to the postal services. They provide a means of transmitting communications without in any way participating in that process. …

It is now necessary to consider the decision of Morland J in [Godfrey], upon which the claimant relies. In that case, the defendant was an ISP, which had received and stored a defamatory article on its news server which had been posted by an unknown person via another ISP. Mr Godfrey informed Demon of the defamatory nature of the article and requested its removal … It remained available, however, until its automatic expiry. In his statement of claim Mr Godfrey made it clear that he was confining his claim for damages to the period after January 1997, when the defendant had knowledge that the posting was defamatory. …

Morland J granted the application … [The ISP] had actively chosen to receive and store the newsgroup exchanges containing the posting, and it could be accessed by its subscribers. It was within its power to obliterate the posting, as indeed later happened. Once the defendant knew of the defamatory content and took the decision not to remove it from its news server, it was no longer able to satisfy the requirements of section 1(1)(b) that reasonable care had been taken, or of section 1(1)(c) that it did not know, and it had no reason to believe, that what it did caused or contributed to the publication. …

Publication is a question of fact, and it must depend on the circumstances of each case whether or not publication has taken place … As Dr Collins observes in The Law of Defamation and the Internet, para. 15.43:

‘Mere conduit intermediaries who carry particular Internet communications from one computer to another … are analogous to postal services and telephone carriers in the sense that they facilitate communications, without playing any part in the creation or preparation of their content, and almost always without actual knowledge of the content.’ …

In determining responsibility for publication …, 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. …

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 …editorial responsibility. …

Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, … Editors and publishers are often fixed with responsibility … 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. … ” (emphasis (bold type and italics) supplied) (para. 9, 11, 12, 15 and 21 to 23 thereof).

39.  While it can be said that liability for the publication of defamatory material is strict at common law, there are limits to such a statement.  As shown below, the limits are not always logically consistent.

40.  “[At] common law liability extends to any person who participated in, secured or authorised the publication (even the printer of a defamatory work) though this was qualified by special rules for mere distributors, who could escape liability by showing lack of knowledge of the defamatory nature of the publication and the exercise of reasonable care”: Gatley, para. 6.4 (and 6.19) (emphasis supplied).

41.  “[There] may be publication if the defendant draws the attention of others to an existing libel or even leaves it in a place where they are likely to see it, provided someone does so.  It has been held that where defamatory matter is placed in a visible manner on the defendant’s property by some third party for whom he is not responsible, he may be treated as publishing the matter if he elects to leave it there. Where, however, the removal of the defamatory matter would involve great trouble and expense the occupier will not be liable, for one cannot then draw the inference that he is voluntarily allowing it to remain.  An internet service provider upon whose site defamatory material is placed by another may incur liability for failure to remove it”: Gatley, para. 6.6 (emphasis supplied).

42.  Thus, people such as news vendors (perhaps also booksellers) and proprietors of libraries are publishers; but the common law defence of innocent dissemination provides them with an escape from liability (as will be set out in more detail under the next heading below): Gatley, para. 6.19, text to nn. 151 and 152.   Persons who have control over properties (such as owners, occupiers or managers) are in a similar position.

43.  Gatley commented that a logical extension of the common law strict liability will mean the post office, telephone and telegraph companies may be liable as publishers (unless liability is exempt by statute): para. 6.18 thereof (esp. text to nn. 136 to 138).  However, Gatley also observed that a telephone company is similar to an internet service provider which “performs no more than a passive role in facilitating postings on the Internet” and is not a publisher: para. 6.18, text to nn. 139 and 140 (citing the Bunt case).

44.  The conclusion that the post office, telephone and telegraph companies can be publishers is surprising, bearing in mind it is highly unlikely these establishments have knowledge of the libel.  Gatley has not referred to any UK judicial decisions concerning litigations brought against them.  But it observed that telegraph companies have been involved in quite some litigations in the US (where they were held to be publishers): Gatley, para. 6.18, text to n. 142.

45.  The above must have prompted Gatley to propose:-

“… it seems right that the law should not even in theory go so far in casting the publication net around those providing public services for the transmission of transient messages to individuals and that from a policy point of view the complete immunity given to the postal service (even if that is a relic of the former Crown immunity from suit) is preferable … ” (para. 6.18, p. 182).

Strangely enough, having made the proposal, Gatley then says:-

“The same considerations do not apply to information posted on web sites or internet news groups and bulletin boards and retained there as that is aimed at the public as a whole and may be widely accessed and it seems sensible to say that the service provider publishes … ” (para. 6.18, pp. 182-3).

46.  Internet service providers may or may not be the hosts of websites, internet news groups and bulletin boards and the like.  If they are not, it is difficult to see why Gatley’s above proposal should not apply to them, since they can also be said to have provided public services by enabling easy access to information via the internet, which nowadays many would consider an important icon of free flow of information.  Even if they are the hosts, the provision of such public services may warrant the law to consider whether they should be treated as publishers or subordinate distributors (websites can take many forms and shapes, from the permanent storage of data which were compiled by the hosts themselves, to short-term and instantaneous data (in the form of web “telephone calls” and messages for example) sent or posted by paying or non-paying third parties (usually the subscribers)).

47.  As stated above, the present dispute is about whether the host of an internet discussion forum (sometimes called an internet bulletin board) can be considered the publisher of libellous statements posted by, and accessible on the internet to, third parties.  According to Gatley, it is unclear whether internet service providers should be held liable if they have no knowledge of the libel: para. 6.18 thereof (esp. text to nn. 133 and 139 to 141).

48.  The plaintiffs argue that they should be because:-

(a) the nature of their operations is very similar to those of the post office, telephone and telegraph companies;

(b) similar to the defendants in Godfrey and in Thompson, their operations are commercial ventures; to earn profits therefrom would be at least one of the aims of these ventures.

For the reasons set out below, I disagree with the above argument.

49.  Freedom of speech is widely accepted in civilized societies as a right.  In Hong Kong, the right to freedom of speech is entrenched in the Hong Kong Basic Law (art. 27) and the Hong Kong Bill of Rights Ordinance (Cap. 383) (s.8 and art. 16(2)). In particular, article 16(2) reads:-

“…this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.

50.  There is indication that recent developments in the common law relating to defamation have jealously guarded the right to freedom of speech:-

(1) malice in the defence of fair comment has been held not to mean personal motives (including a motive to make monetary gain) but only the lack of an honest belief in the comment: Gatley, para. 12.25 citing Albert Cheng and Another v. Tse Wai Chun Paul (2000) 3 HKCFAR 339 (correcting a former widely held misunderstanding of “malice” in earlier authorities);

(2) (further to the “conventional” defence of qualified privilege) the introduction of what can be called a defence of “responsible journalism” for the media since Reynolds v. Times Newspapers Ltd. [2001] 2 AC 127, as explained in Jameel (Mohammed) v. Wall Street Journal Europe SPRL. [2007] 1 AC 359: see Gatley, para. 15.6. The “responsible journalism” defence laid down in Reynolds has been introduced to Hong Kong in 匠心髮型 v. The Sun News Ltd. and Another [2005] 3 HKLRD 133; CACV 243/2005 (24 April 2006).

51.  In view of the matters set out above, a sweeping legal principle that all internet service providers are “publishers” of a statement, irrespective of whether the statement originated from them, is clearly too rigid and unnecessary.  The same can be said of any legal principle that all website hosts are “publishers” of such a statement.  As stated above, websites can take various forms and shapes.

52.  On the other hand, to adopt the approach in Bunt (that is, whether there has been publication is a factual issue, depending on circumstances in particular the defendant’s knowledge) is more likely to enable a just and fair result to be achieved.  This is because the fact that a website host is found not to be a publisher, but merely a subordinate distributor (or subordinate publisher or disseminator) does not mean it is immediately absolved from liability for the libel; the host still has the burden of establishing the defence of innocent dissemination.

53.  Further, to do so would bring in line the approach applicable to news vendors, library proprietors and persons having control of properties (para. 41 and 42 above) in line with that for website hosts (a fortiori internet service providers).

54.  The plaintiffs’ emphasis that the defendants’ operation is profit-making is neither here nor there.  After all, most of the privately-run mass media enterprises are commercial ventures which aim similarly at making profits.

55.  The undisputed evidence in the actions is that the defendants have exercised minimal editorial control over the web discussion forums.  The responsibility to moderate the defendants’ discussion forum falls on two employed staff.  But there are two limitations: one, their main duties were not discussion forum moderators, and two, they only act on receipt of complaints.

56.  There is no dispute the defendants were unaware of the posting of the defamatory statements until they were brought to the defendants’ attention by the plaintiffs.

57.  In view of the above matters, I find that the defendants were mere subordinate distributors of the defamatory statements in the actions.

THE DEFENCE OF INNOCENT DISSEMINATION

58.  The defence has been summarized in Gatley:-

“… the common law gives some degree of protection to the person who publishes but who is not the author, printer, or the ‘first or main publisher of a work which contains a libel’, but has only taken ‘a subordinate part in disseminating it’, e.g. by selling, distributing or handing to another a copy of the newspaper or book in which it appears. Such a person will not be liable if he succeeds in showing:

(1) that he did not know that the book or paper contained the libel complained of; and

(2) that he did not know that the book or paper was of a character likely to contain a libel; and

(3) that such want of knowledge was not due to any negligence on his part.

On this basis news vendors and proprietors of libraries have escaped liability.

The onus of proving such facts lies on the defendant and the question of liability is one for the jury. In the case of a newspaper, this question depends to a great extent on the character and reputation of the paper. The jury may rightly infer negligence from the fact that the defendant sold or distributed the newspaper after being warned of libellous matters in a former issue … ” (Gatley, para. 6.19).

59.  I accept the above to be an accurate summary of the relevant legal principles and make the findings based on these principles.

60.  Further, by reason that the defendants have been found to be the subordinate distributors of the libel, it is open to them to rely on this defence.

61.  General criticisms have been levied against the defendants’ operation:-

(a) although there is a need for registration, this has not been strictly enforced. As a result, the discussion forum subscribers retain a high degree of anonymity;

(b) although the discussion forum rules prohibit (among other things) defamatory messages to be posted, there has been minimal and passive monitoring of those messages;

(c) the defendants’ discussion forums were of a character likely to contain libel.

62.  Apparent anonymity on the internet has its pros and cons.  It promotes freedom of speech because people would feel less inhibited in expressing themselves over various matters.  On the other hand, it can encourage the use of excessive or improper (or even unlawful) words.

63.  If the law were to impose a duty on the part of an internet discussion forum host to require the disclosure of the personal particulars of its subscribers, in effect this will mean the host is also fixed with a duty to verify those particulars.  This is because a disclosure without verification almost always ends up the same as no disclosure in the long run. To impose a duty of verification will be too onerous from a practical point of view.  In any event, the ingredients of this defence do not encompass such a duty.

64.  Although this is strictly irrelevant for the actions, I pause to observe that anonymity on the internet is more apparent than real.  As HKSAR v. Chan Johnny Sek Ming [2006] 4 HKC 264 shows, the defendant, who used a pseudo-name to post internet discussion forum messages constituting criminal conduct, was tracked down by the police and duly convicted of the offence.

65.  As regards para. 61(b) above, to impose a duty on the part of internet discussion forum hosts to monitor the forum messages would render this defence either effectively otiose or (at least) render it difficult to establish.  Because of the last of the 3 ingredients summarized by Gatley (see para. 58 above), any such duty would have to be a duty to act reasonably and it would be breached if the hosts:-

(1) monitor but overlook the defamatory message(s); or

(2) monitor and overlook not the defamatory message(s), but its defamatory meaning.

66.  In both instances, such a duty would entail a need for extensive resources on the part of the hosts.  Further, because such a duty is editorial in nature, it would involve potentially difficult value judgement (even for people with legal training).  Further, for these reasons, imposing such a duty is also not consistent with the view stated in para. 41, 42 and 52 to 53 above.

67.  As regards para. 61(c) above, I do not consider there to be sufficient evidence that the defendants knew their discussion forum was of a character likely to contain libel.  The evidence shows the discussion forums to be one of the most popular in Hong Kong, with numerous messages posted.  The messages relevant to the actions were but only some of the total number of messages.  The originators of the various defamatory statements have different pseudo-names.

68.  For the above reasons, I consider the above criticisms to be irrelevant.

(a) The Mar 2007 Words

69.  The relevant facts are again largely undisputed.  The Mar 2007 words were posted on 27 and 28 March 2007.  The plaintiffs informed the defendants in December 2008 (it is accepted by the defendants at trial they were brought to their attention by 10 December 2008).

70.  The Mar 2007 words were only removed from the discussion forum in about late August 2009 (about 8 months after the defendants knew of the same).  The reason given in the amended defence for the time taken to remove the Mar 2007 words is:-

“The [defendants] deleted [the Mar 2007 words] in or about late August 2009 and soon after it received the Witness Statement of [the plaintiffs’ witness] filed herein, wherein the Universal Resource Locator (‘URL’) of [the Mar 2007 words] [was] identified for the first time by the Plaintiffs” (para. 5(4) thereof).

In their written closing submissions, the defendants claim:-

“[they] only realized the thread had not been removed when they received … [the] witness statement dated 12 August 2009 … which was filed … on 21 August 2009 … There is no evidence that the defendants had the URL for this thread prior to the service of that witness statement and its annexures” (para. 5(d) thereof).

71.  As the defence fairly accepts, there is no evidence to support the above-quoted averment and submission.

72.  It took the defendants effectively 8 months or so to remove the Mar 2007 words.  In view of the complete lack of evidence showing good reasons for not doing so earlier, I find that there has been undue delay on the defendants’ part.  I also infer that such a delay was caused by the defendants’ negligence.

73.  I therefore conclude that the defendants have failed to establish this defence in relation to the Mar 2007 words.

(b) The Oct 2008 Words

74.  The Oct 2008 words were posted on 24 October 2008.  They were removed before the commencement of the Oct 2008 action.

75.  The defence witness explained the said removal in his testimony.  He said that the plaintiffs sent a letter dated 24 October 2008 via e-mail to the defendants at about 11:53 am on 27 October 2008 and the defendants’ staff replied at about 3:20 pm that the Oct 2008 words would be removed.  They were removed before the commencement of the Oct 2008 action on 28 October 2008 (about 5 days after the publication of the Oct 2008 words (25 October was a Saturday and 26 October was a Sunday)).

76.  The defendants pointed out in their written closing submission the testimony of the defence witness has not been challenged in this respect.  Further, the testimony summarized above was supported by three contemporaneous e-mails:-

(a) an e-mail sent by the plaintiffs’ solicitors to an e-mail address at info@hkgolden.com on 24 October 2008 at 7:02 pm;

(b) an e-mail sent by the plaintiffs’ solicitors to Fevaworks on 27 October 2008 at 11:53 am;

(c) an e-mail sent by Fevaworks to the plaintiffs’ solicitors on 27 October 2008 at 3:20 pm.

Irrespective of whether the said testimony is disputed by the plaintiffs, having considered it together with the said e-mails, I consider the testimony to be truthful and reliable.

77.  Hence, I accept the defendants’ claim that they only became aware of the Oct 2008 words on 27 October 2008.  The time taken for them to remove the Oct 2008 words was reasonable.

78.  I find the defendants were not negligent in relation to the Oct 2008 words and thus have been able to establish this defence.

(c) The Jan 2009 Words

79.  The Jan 2009 words were posted on 21 January 2009 at 11:25 pm and they were removed on 22 January 2009 at 11:40 am.

80.  I also find the defendants not negligent in relation to the Jan 2009 words and have been able to establish this defence.

CONCLUSION ON LIABILITY

81.  By reason of the matters set out above, I find the plaintiffs have been able to establish liability against the defendants in relation to the Mar 2007 words but not in relation to the Oct 2008 words.

82.  I find the plaintiffs to have failed to establish liability in relation to the Mar 2009 action.  It is therefore dismissed.

QUANTUM OF DAMAGES

83.  Despite the industry of counsel for the plaintiffs, no direct assistance can be provided by earlier local decisions in this regard; most awards were made in the context of the conventional media, such as magazines, newspapers or radio broadcast.

84.  The plaintiffs seek:-

(1) general damages in the sum of $700,000;

(2) aggravated damages in the sum of $150,000,

for the personal plaintiff, and general damages in the sum of $150,000 for each corporate plaintiff in respect of each of the defamatory statements.

85.  I concluded that liability has only been established in relation to the Mar 2007 words.  It is the plaintiffs’ case those words were only defamatory of the 1^st and 2^nd plaintiffs of the Oct 2008 action: para. 8, plaintiffs’ written closing.

86.  It is clear from the messages posted onto the defendants’ discussion forum (including the Mar 2007 words) the plaintiffs have been perceived as one and the same group of companies.  In view of the plaintiffs’ background, there is good basis for such perception.

87.  The defendants did not become involved in the defamation as its originator.  As stated above, they were found liable because of their negligence.  I also disagree with the plaintiffs the defendants’ conduct at trial warrants enhancing the amount of damages and/or awarding aggravated damages.

88.  In these circumstances, I consider a single award of $100,000 for both of the 1^st and 2^nd plaintiffs of the Oct 2008 action to be appropriate.  No aggravated damages has been sought, and none will be awarded.

89.  Accordingly, judgment in the Oct 2008 action is so entered.

OTHER MATTERS

90.  The trial of the actions commenced on 4 January 2011.  Defence counsel indicated shortly afterwards the defendants wish to re-amend their amended defence.  That application was made on 5 January 2011 and was opposed by the plaintiffs.  I granted leave to do so and indicated the reasons for doing so would be given together with the judgment in the actions.

91.  Para. 6(2) of the amended defence averred:-

“By reason of the matters aforesaid, the [defendants aver] that … [they] did not have any opportunity to prevent the continued presence of [the Mar 2007 words] before the same was discovered for the first time by [the defendants’] staff in the morning of 22^nd January 2009”.

The original defence was filed in March 2009 whereas the amendment (which included the above averment) was made in November 2009.

92.  Defence counsel submitted that the above averment was wrong.  They sought leave to re-amend it to read:-

“By reason of the matters aforesaid, the [defendants aver] that … [they] did not have any opportunity to prevent the continued presence of [the Mar 2007 words] before the same was … brought to the attention of [the defendants’] solicitors on or about 9^th December 2008, when the writ of summons was amended” (emphasis supplied).

93.  Defence counsel explained that the amended plea was caused by a misunderstanding.  In this connection, they referred to, and relied on, the e-mails set out in para. 76(a) to (c) above.  Further, insofar as the plaintiffs argued that the proposed re-amendment amount to resiling from an admission, the defendants asked the court to note that the proposed re-amendment could only benefit the plaintiffs rather than prejudice them: with the re-amendment, it would mean that the defendants removed the Mar 2007 words only in August 2009 when they became aware of them in December 2008 (instead of January 2009).

94.  In short, I agreed with the defendants and exercised my discretion to give leave to re-amend.

COSTS

95.  In view of the liability for the conclusions reached above, it is likely both parties will want to argue on the liability for the costs of the actions.  For this purpose, I propose to proceed by way of written submissions without the need for yet another hearing.

96.  The following directions are given:-

(a)    the plaintiffs be at liberty to lodge with court and serve written submissions regarding costs within 7 days from today;

(b)    the defendants be at liberty to lodge with court and serve written submissions regarding costs within 7 days thereafter;

(c)    the plaintiffs be at liberty to lodge with court and serve written reply submissions (if any) within 7 days thereafter.

Any party wishing to proceed by way of a hearing (despite the proposal given above to the contrary) should include submissions on that aspect in the above written submissions.