The rise of social media has brought with it not only greater expectations of freedom of speech, but also implications relating to the law of defamation.
The recent decision in the Court of Final Appeal (“CFA”) case of Oriental Press Group v Fevaworks Solutions Ltd  HKEC 1025 (parties will be referred to individually as “Oriental” and “Fevaworks”) has implications not only for corporations concerned with protecting their reputation and that of their employees but also for the individuals using internet service providers (“ISPs”) for leisure, work or otherwise.
There were three actions brought by Oriental against Fevaworks but the ones we are concerned with relates only to the first two.
Oriental sued Fevaworks after they discovered defamatory statements posted on a popular “leisure” (but more accurately in English, “gossip”) website owned by Fevaworks. Defamation encompasses both libel and slander and is defined as the intentional false communication whether written (libel) or spoken (slander) that harms a person’s reputation, decreases the respect, regard or confidence in which a person is held.
The first action brought on 28 October 2008 (HCA 2140/2008) related to two batches of defamatory statements, the first batch 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. These statements were brought to the appellants’ attention on the day they were posted.
At trial, the judge found those statement to be defamatory since they insinuated that the appellants were involved in drug trafficking and money laundering, that they were involved in illegal and immoral activities, and that they were corrupt, illegal, immoral and unethical. The offending words were removed from the website by Fevaworks three and a half hours after being so informed.
The 2007 statements related to the murder of a newspaper vendor in 1999. The insinuation was 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. Fevaworks then did not immediately remove these statements, instead doing so eight months later. Due to this delay, the judge found that there was no defence available to Fevaworks and accordingly awarded Oriental HK$100,000 in damages.
The second action (HCA 597/2009) concerned defamatory postings made on the website on 21 January 2009 (“the 2009 statements”). They contained insinuations that Oriental was founded on drug money, were involved in drug trafficking, money laundering and immoral activities and were corrupt, illegal, immoral and unethical. They also named a specific person related to Oriental and claimed he was a member of a family involved in drug trafficking and a member of or associated with the 14K triad society. The defamatory words were discovered by the respondents on 22 January 2009, about 12 hours after they had been posted. They were immediately removed.
The two actions against Fevaworks were tried together without a jury. The award regarding the 2007 statements was not challenged by Fevaworks either in the Court of Appeal (“CA”) or in the CFA. Oriental’s actions in respect of the 2008 and 2009 statements were dismissed and the decision upheld by the CA both as to liability and damages.
The CA granted leave to appeal to Oriental on the basis that a question of great general or public importance had arisen:
“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?”
At the appeal, Oriental argued that Fevaworks was a primary publisher of the defamatory statements and therefore the defence of innocent dissemination was not available to them. Accordingly, they should be found liable for damages.
(The common law defence of innocent dissemination evolved in the late nineteenth century, and before this defence, publishing a libel was a strict liability offence 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. More on this later.)
This argument was rejected unanimously by the CFA.
There were a number of reasons Oriental used to try to justify why Fevaworks should be found to be a primary publisher. Fevaworks had rules for using the website, such as anyone wishing to post messages had to become a member; they had to provide their name and a traceable email address registered with a recognised ISP. Members were obliged to confirm they had read and would adhere to the rules of the forum, which included a warning against posting anything obscene or offensive and any member that breached the rules would be suspended, and eventually banned altogether if they repeatedly broke the rules.
Further, Oriental argued that Fevaworks employed two staff members to monitor the content of the gossip channel - further evidence that Fevaworks was a primary publisher.
Having considered a number of cases that defined “publication”, the CFA judges reached the conclusion that the Fevaworks were certainly publishers, but not primary ones. They were found to be subordinate publishers since they were providing a platform from which people could post material, but they could not have been aware of what was going to be posted by members and had no realistic way of vetting content until it had already been posted by a member.
The next question was whether as a subordinate publisher, Fevaworks could rely on the defence of innocent dissemination or not.
The case of Emmens v Pottle (1885) 16 QBD 354 established the common law defence of innocent dissemination. Prior to this case, it was a well-established rule that the sale of a newspaper which contained defamatory material constituted publication of that libel. However, this case established the defence after the jury found that they vendor of the newspaper did not know and had no reason to suppose that the paper contained or was likely to contain defamatory material.
In that case, 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.”
The case was a real landmark in the law of defamation since before that the offence was one of strict liability which meant, as Lord Esher put it:
“If [the newspaper vendors] 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 defendant is right.”
In rationalising the finding on whether the defence of innocent dissemination was available to Fevaworks, Mr Justice Ribeiro PJ said in the CFA judgment that there was a very high volume of traffic on the gossip forum Fevaworks was running, with as many as 5,000 postings per hour and 30,000 users online at any time. It had been said in the Court of First Instance that it would not have been practicable for Fevaworks to automate or manually screen postings before they appeared on the forum and therefore in light of this, Fevaworks could not have been said to have been negligent in not knowing about the defamatory material before it was posted on the forum.
Justice Ribeiro then went on to say that Fevaworks did take down the offensive material promptly enough to justify the finding that they did take reasonable care, and he concluded that the defence of innocent dissemination was available to them.
That said, the CFA unanimously dismissed the appeal.
Implications of this landmark case
There are 925,000 new users on Google+ every day.
300 million photos are uploaded to Facebook every day via Instagram.
It probably goes without saying that social media is the number one activity on the web, as various statistics show.
The implications of this case are therefore huge for ISPs of social media such as Facebook, Weibo, Twitter, LinkedIn, and so on, as well as for those who are members or users of such forums.
The floodgates of defamation claims have not been opened as a result of this case and it will remain difficult for publishing groups or press houses such as Oriental to bring defamation claims against ISPs.
It may well be that victims feel they have little recourse to exoneration.
You may well question what a victim of a libel may do if they find themselves in circumstances where they have been defamed on a Facebook wall for example.
Similarly to all civil claims, the victim should take steps to mitigate their loss. The victim therefore should immediately write to the webhost demanding the defamatory material be removed as soon as the webhost locates the content. The victim should also let the webhost have as much information as possible, such as the url and the wording or photo in question, to make it easier for the webhost to remove the defamation swiftly.
However whilst victims may feel the decision is unfair, the decision that the CFA took was logical.
It is impractical for certain ISPs, ie those for social media, to vet every single post, tweet or photo that is posted on a website due to the sheer volume of users. People expect to be able to express themselves freely and even across the border in the PRC, where media is generally tightly regulated, this expectation is increasing daily. The extent to which they should be allowed to express themselves of course needs to be controlled, and virtually all of these types of social media sites will have rules governing acceptable usage and what constituted offensive or obscene material.
These rules exist to balance the right of freedom of speech with the right of people not to have their reputation tarnished.
It is also logical that if an ISP puts acceptable usage rules and guidance in place for users and to the best of their ability, monitors postings and deals with complaints of defamatory material being posted with swiftly within a reasonable time frame, that users should be able to express themselves via postings and for the ISP not to be punished simply for presenting people with a platform.
It should also be noted that whilst ISPs for social media cannot be considered primary publishers, the same may not apply to other sites that provide platforms for people to comment, sites such as travel or food blogs (like Open Rice, for example), where people can critique hotels, restaurants and so on. The volume of comments on those sites may not be as high, hence it may not be entirely unreasonable for webhost of those sites to implement appropriate measures to monitor the comments posted on those sites.
Moreover, if the defamed party cannot go after an ISP such as Facebook, then it does leave open the question of who can be held liable for publishing defamatory material on a user of Facebook’s wall for example. Any user of social media that allows others to post on their walls or comment on a comment may expose themselves to the risk of being held liable for libel.
In the end
The law is a constantly evolving entity and it needs to reflect the culture and standards of society in the present day.
Alfred Ip, Partner Oldham, Li & Nie
Scherzade Westwood, Registered Foreign Lawyer Oldham, Li & Nie
This is why the common law defence of innocent dissemination arose since it was simply not appropriate for the offence of publication of defamatory material to be one of strict liability. This is also why the CFA reached the conclusion as it did in this case – any other conclusion would have been simply unconscionable.