ORIENTAL PRESS GROUP LTD AND OTHERS v. FEVAWORKS SOLUTIONS LTD t/a ALIVE! MEDIA AND COMMUNICATIONS AND ANOTHER

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

(Consolidated pursuant to the Order of the
Honourable Mr Justice Yam dated 23 November 2009)

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DECISION ON COSTS

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Introduction

1.  In a judgment handed down on 25 February 2011, I found in the plaintiffs’ favour in the manner set out below.  This is the decision on the costs of the actions.  The terms defined in the said judgment will also be used in this decision on costs.

2.  The actions are the Oct 2008 action (commenced in October 2008) and the Mar 2009 action (commenced in March 2009) and they were ordered to be tried together.

3.  In the Oct 2008 action, the plaintiffs complained that they were defamed by the Mar 2007 words and the Oct 2008 words while in the Mar 2009 action, a similar complaint arose out of the Jan 2009 words.

4.  Having found the words to have defamatory meanings, judgment was entered in the plaintiffs’ favour in relation to the Mar 2007 words, but the actions were otherwise dismissed (the defendants having established the defence of innocent dissemination in relation to the Oct 2008 words and the Jan 2009 words).

Issues

5.  Both parties’ primary submissions were put forth on the basis that the actions should be treated as one action.

6.  The plaintiffs argue that:-

(a)   being the successful party in the actions, they are prima facie entitled to costs by virtue of RHC Ord. 62 r. 3(2);

(b)   there were no circumstances which would justify the usual costs order laid down by the said statutory rule to be displaced by some other orders.

Alternatively, if the actions are treated as two separate actions, the plaintiffs should be awarded the costs of the Oct 2008 action and three-quarters of the costs of the Mar 2009 action.

7.  On the other hand, the defendants rely on Ord. 62 r. 5 and contend that there were special matters which justify the following costs order:-

(1)   costs should not be awarded to the plaintiffs;

(2)   three-quarters of the costs should be awarded to the defendants.

Alternatively, should the court treat the actions as two separate actions, and the defendants being the party who was partially successful in the Oct 2008 action and wholly successful in the Mar 2009 action:-

(a)   there should be no order as to costs in relation to the Oct 2008 action;

(b)   the costs of the Mar 2009 action (with additional costs since the deadline date for accepting their sanctioned payments (see para.13 below)) should be awarded to them.

Treating the Actions as One Action

8.  The special matters relied upon by the defendants under Ord. 62 r. 5 were:-

(1)   any payment of money into court (Ord. 62 r. 5(1)(b));

(2)   the parties’ conduct (Ord. 62 r. 5(1)(e) and (2)(d));

(3)   whether a party has succeeded on part of its case, even if it has not been wholly successful (Ord. 62 r. 5(1)(f)).

9.  In relation to para. 8(3) above, the defendants submit that they were successful in establishing two main issues; namely, (i) their status as the subordinate distributors (and not the publishers) of the libel, and (ii) no negligence in relation to the majority of the libel.

10.  I agree with the plaintiffs the issues in the actions were not such as should justify treating any of them as “separate events” (using the language used in Active Base Ltd. v. Roderick John Sutton & Others, HCCW 470/2005 (17 Oct 2008), para. 10(4)).  Further, merely because arguments pertaining to certain issues have been rejected does not mean they ought never be raised.

11.  In relation to para. 8(2) above, the defendants have not specified what the parties’ conduct was.  But because only the plaintiffs’ refusal to take part in mediation was mentioned in their skeleton submissions, it is reasonable to assume that to be the conduct in question.

12.  Again, the plaintiffs’ arguments in reply to this seem to have substance.  First, the legal position of the host of an internet discussion forum in relation to a libel is a point of law which can have implications beyond the actions.  Secondly, the amount awarded does not appear to be one which could have been acceptable to the defendants (resulting in a successful mediation) in view of the sanctioned payments they paid into court (see para. 13 below).  Thus, the plaintiffs’ refusal to mediate should not be given much weight.

13.  In relation to para. 8(1) above, the defendants made a sanction payment of $101 in each of the actions.  In view of the judgment sum awarded to the plaintiffs, the sanctioned payments should not substantially affect the decision on costs.

14.  However, despite my earlier conclusion in para. 10 above, for the reasons set out in para. 15 below, I regard this to be a case where both sides can claim, with some justification, to be the winner in substance.

15.  It is true the plaintiffs have succeeded in obtaining monetary judgment the amount of which is far from being nominal.  But that does not reflect the whole picture; indeed, it can legitimately be argued that the plaintiffs’ success was limited to only one of the 3 occasions complained of.

16.  Consequently, in relation to costs, justice is best served by ordering the defendants to pay one-third of the costs of the actions since the order of 23 November 2009 (directing the actions to be tried together).  The costs before 23 November 2009 will be discussed below.

17.  To assist those involved in the taxation of costs (should the parties fail to agree on costs), the above costs order will entail two bills of costs (one for each of the actions) to be prepared for the costs incurred on and after 23 November 2009, and for taxation to proceed on that basis.

Treating the Actions as Two Actions

18.  Because of the conclusion reached above, it is inappropriate to treat the actions as two separate actions after the order directing a joint trial has been made (see para. 1 and 16 above).

19.  However, before 23 November 2009, they were two actions, albeit the issues involved were almost the same (save as to damages perhaps).

20.  The defendants have been successful in defending the Mar 2009 action but have failed to do so in relation to the Oct 2008 action.

21.  In these circumstances, and bearing in mind the objectives set out in Ord. 1A, the proper order would be that the parties are to bear their own costs of the actions incurred before 23 November 2009.

Messrs Iu, Lai & Li, for the Plaintiffs in both cases

Messrs Oldham, Li & Nie, for the Defendants in both cases

HCA 2140/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2140 OF 2008

____________

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 [email protected] 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.

Mr Gerard McCoy, SC leading Mr Lawrence K F Ng, instructed by Messrs Iu, Lai & Li, for the Plaintiffs in both cases

Mr John Reading, SC leading Ms Elizabeth Herbert, instructed by Messrs Oldham, Li & Nie, for the Defendants in both cases

HCA 2140/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2140 OF 2008

____________

___________________________

DECISION ON COSTS

___________________________

1.  This decision on costs concerns the parties’ earlier disagreement over whether these two actions, now to be tried together, should be tried by a judge with a jury, or by a judge alone.

2.  The plaintiffs in both actions (parties which in essence are associated) sue the defendants for libel.  Upon the defendants’ application, it was ordered in November 2009 that the actions be tried by a judge with a jury (“jury trial”).

3.  S. 15(1) and (2), Jury Ordinance (Cap. 3) stipulates in effect that the party applying for a cause to be heard before a jury shall pay what is sometimes called “jury deposit” within 7 days after the cause is set down for trial; failure to do so will result in the cause being heard without a jury.

4.  The actions were set down for trial in January 2010.  But the defendants did not comply with s. 15(1), Cap. 3.

5.  In a letter dated 29 October 2010, the plaintiffs indicated they consider the actions to be unsuitable for jury trial.

6.  The main reason put forth was that the dispute involves complex issues of law (some of which may be unsettled), such as whether the manager/operator of a discussion forum website can be regarded as the publisher of the libel, whether the liability of such individuals is “strict” in that knowledge of the libel is not required, and whether they can rely on the defence of innocent dissemination.

7.  The defendants do not dispute the complexity of the issues.  But in a letter dated 12 November 2010, they maintained the actions are suitable for jury trial.  That stance was however abandoned in their letter dated 8 December 2010, where they indicated no objection to the actions being tried by a judge alone.

8.  I readily accept defence counsel’s intimation that the defendants had not delayed in informing all concerned the matter was no longer contested.  However, the fact remains costs have been incurred by the plaintiffs by 8 December 2010 (including costs for instructing counsel).  Further, by that date, plaintiffs’ counsel has already lodged with court the skeleton submissions.

9.  By reason of the matters set out in para. 4 and 6 to 7 above, had the matter been contested, it is by no means clear if the defendants would have succeeded in seeking a jury trial despite their non-compliance with s. 15(1), Cap. 3.

10.  For that reason, there is insufficient reason to depart from the usual rule that costs should follow the event (see comments to the similar effect in relation to costs upon the withdrawal or discontinuance of an action: Hong Kong Civil Procedure 2011, Vol. 1, para. 21/5/11).

11.  Accordingly, there will be an order that the defendants are to pay the plaintiffs’ costs from 29 October 2010 to 10 December 2010 in relation to the disagreement regarding jury trial.

12.  Such costs appear to be suitable for summary assessment.  For that purpose:-

(a) the plaintiffs be at liberty to lodge with court and serve a statement of costs within 3 days;

(b) the defendants be at liberty to lodge with court and serve a statement of objections within 3 days thereafter.

HCA2140/2008 & HCA597/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2140 OF 2008

----------------------------

----------------------------

AND

ACTION NO. 597 OF 2009

-----------------------------

BETWEEN

(HEARD TOGETHER)

--------------------------

J U D G M E N T

--------------------------

1.  This application has been argued so well by Mr John Griffiths, SC for the plaintiffs.  But I come to the conclusion that leave should not be granted. 

2.  This case is, as submitted by Ms Janine Cheung for the defendants, at the interlocutory stage only and the case was at the verge of going to trial.  It is not appropriate at this stage to ask the Court of Appeal to decide on an interlocutory matter.  Any complex questions of law should only be decided after full investigation of relevant facts at the trial.  It has been decided in a case of X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 740-741 by Lord Browne-Wilkinson :

“Where the law is not settled but is in a state of development (as in the present cases) it is normally inappropriate to decide novel questions on hypothetical facts.”

3.  Similar decision could be found as in the case cited by Miss Cheung by Ward LJ in Fashion Gossip Ltd v Esprit Telecoms & others decided by the Court of Appeal in England on 27 July 2000 in which His Lordship said :

“The summary procedures are, however, meant to deal with plain and obvious cases and this I fear was never one of them.  Whilst, therefore, I applaud his boldness, I fear he [the judge] was wrong to engage in this process when, in summary : – (i) the case ‘raises issues concerning the law of restitution and conspiracy which are not straightforward’, to quote from the judge’s reason for granting permission to appeal; (ii)  before the law can be applied and especially where (a) new areas of law are being developed… there must be a firm foundation of fact and all the facts, every nuance, needs exploration and needs to be firmly established.”

4.  If there be any question of great and general public importance as submitted by the plaintiffs’ side, the same should be submitted to the Court of Appeal only after due investigation of the relevant facts.

5.  On the other hand, I also find that there is no reasonable prospect of success.  The interlocutory judgment only applied a general principle and the general principle is that the defendant is not liable for unintentional publication of defamatory matter to a third person if was not due to any want of care on his part : Gatley on Libel and Slander, para. 6.11 and also Clerk &Lindsell on Torts, 19^th ed., paras. 23-74 at p. 1346 in which the learned author said :

“Ignorance of contents of documents

If the defendant does not know, and has no reasonable means of knowing, and is under no legal obligation to know the nature of the document, though the matter published is libellous, he has not published the libel…”

6.  The same was decided by Eady J in a recent decision Buntv Tilley & Ors [2007] 1 WLR 1243 at paras. 21-23. 

7.  The plaintiffs rely heavily on Godfrey v Demon Internet Ltd [2001] QB 201 but this case, as submitted by Miss Cheung, is a case involving clear knowledge on the part of the defendant who knew of the defamatory contents of the postings and yet made a conscious decision not to remove it.

8.  The same contention was made by the learned authors of Gatley at para. 6.6 :

“An internet service provider upon whose site defamatory material is placed by another may incur liability for failure to remove it.”

9.  Thus, Godfrey v Demon is not a case involving a defendant who was ignorant of the defamatory contents and has not voluntarily assumed responsibility thereof.  Therefore this case is not applicable.  

10.  I do not want to go too much into detail.  Suffice it for me to say that the defendant herein may also succeed under the category of innocent dissemination depending on the finding of fact at trial.

11.  Finally, as I have decided in my interlocutory judgment, the balance of convenience is also in favour of the defendants. 

12.  For the aforesaid reasons, I refuse to grant leave to the plaintiffs to appeal with costs to the defendants in any event.  There shall also be a certificate for two counsel for the defendants.

HCA2140/2008 & HCA597/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2140 OF 2008

----------------------------

________________________

(HEARD TOGETHER)

-----------------------

J U D G M E N T

-----------------------

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 rolein 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 “[email protected]” 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.