Liability of Internet Service Providers and Website Hosts for Defamation
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Whilst the author of a defamatory message published on the internet can be held liable for defamation, so can internet service providers (ISPs) and other intermediaries such as the provider, administrator and manager of a website on the internet.
Given that user anonymity is often the norm in internet forums, ISPs or other intermediaries make attractive defendants as they are more readily identifiable and would generally be perceived as having deeper pockets.
In the recent case of Oriental Press Group Limited & Others v Fevaworks Solutions Limited (HCA 2140 of 2008), the Hong Kong High Court found the host of a popular online forum liable on one occasion for failing to remove defamatory statements posted by its subscribers. This landmark case in Hong Kong extends the legal principles and rules that regulate information communicated in oral and printed forms to digital communication in the realm of cybersphere.
The case raises interesting issues as to whether a website host (and a fortiori an ISP) is a publisher or subordinate distributor, and if the latter, whether a defence of innocent dissemination applies.
ISPs and website hosts are not publishers
The plaintiff in the Hong Kong case relied on the English case of Godfrey v Demon Internet Ltd [2001] QB 201, which held that the defendant ISP was liable for anonymous postings of defamatory statements on a newsgroup accessed through the ISP. The ISP did not remove the postings until about 10 days after the request made by the Plaintiff to do so. The Court in Godfrey was of the view that the transmission of a defamatory posting from the storage of a news server constituted “publication” of that posting to any subscriber who accessed the newsgroup containing that posting. The ISP was held to be a publisher in that in did not play a passive role as it chose to receive and store the newsgroup postings and make them available to users. It could not claim it was an innocent disseminator because it knew of the defamatory posting and chose not to remove it.
The defendants on the other hand relied on the more recent English case of Bunt v Tilley [2007] 1 WLR 1243 in which the defendants (who were ISPs and website hosts) succeeded in striking out a claim against them. The Court in Bunt was of the view that ISPs do not participate in the process of publication but merely act as facilitators in a similar way to postal services. They provide a means of transmitting communications without in any way participating in that process. It was held in Bunt that publication is a question of fact that depends on the circumstances, in particular, the knowledge on the part of the defendant of the defamatory words.
The Hong Kong court found that a sweeping legal principle that all ISPs and website hosts are “publishers” of a statement, irrespective of whether the statement originated from them, to be too rigid and unnecessary. It adopted the approach in Bunt which would likely achieve a just and fair result. Although a website host is not found to be a publisher but merely a subordinate distributor, the website host still has the burden of establishing the defense of innocent dissemination.
Defense of Innocent Dissemination
This defense may be relied upon by subordinate distributors of libelous material such as news vendors and proprietors of libraries (and now ISPs and other internet intermediaries) to escape liability if the following can be established:
1. no knowledge that a document contains the libel complained of;
2. no knowledge that the document was of a character likely to contain a libel; and
3. the want of knowledge was not due to any negligence.
The Court found that there is no duty on the part of website hosts to monitor forum messages and there was insufficient evidence that the defendants knew their discussion forum was of a character likely to contain libel.
However, the Court found that in one instance the defendants were negligent for undue delay in removing defamatory statements from the discussion forum. The offending words were only removed 8 months after the defendants knew of the same. They were not negligent in other instances when the offending words were removed shortly after the defendant became aware of the same.
ABOUT THE AUTHOR: Angela Wang & Co
Angela Wang & Co has a team of dedicated and experienced litigators who advise on a wide range of dispute resolution matters including defamation. We have succeeded in tracing the identity of anonymous posters of defamatory statements on the internet by obtaining a court order requiring ISPs to identify their subscribers. We possess solid experience as well as strong business and commercial sense and are able to advise clients on the optimum strategy to resolve complicated disputes.
Copyright Angela Wang & Co.
More information about Angela Wang & Co.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
In the recent case of Oriental Press Group Limited & Others v Fevaworks Solutions Limited (HCA 2140 of 2008), the Hong Kong High Court found the host of a popular online forum liable on one occasion for failing to remove defamatory statements posted by its subscribers. This landmark case in Hong Kong extends the legal principles and rules that regulate information communicated in oral and printed forms to digital communication in the realm of cybersphere.
The case raises interesting issues as to whether a website host (and a fortiori an ISP) is a publisher or subordinate distributor, and if the latter, whether a defence of innocent dissemination applies.
ISPs and website hosts are not publishers
The plaintiff in the Hong Kong case relied on the English case of Godfrey v Demon Internet Ltd [2001] QB 201, which held that the defendant ISP was liable for anonymous postings of defamatory statements on a newsgroup accessed through the ISP. The ISP did not remove the postings until about 10 days after the request made by the Plaintiff to do so. The Court in Godfrey was of the view that the transmission of a defamatory posting from the storage of a news server constituted “publication” of that posting to any subscriber who accessed the newsgroup containing that posting. The ISP was held to be a publisher in that in did not play a passive role as it chose to receive and store the newsgroup postings and make them available to users. It could not claim it was an innocent disseminator because it knew of the defamatory posting and chose not to remove it.
The defendants on the other hand relied on the more recent English case of Bunt v Tilley [2007] 1 WLR 1243 in which the defendants (who were ISPs and website hosts) succeeded in striking out a claim against them. The Court in Bunt was of the view that ISPs do not participate in the process of publication but merely act as facilitators in a similar way to postal services. They provide a means of transmitting communications without in any way participating in that process. It was held in Bunt that publication is a question of fact that depends on the circumstances, in particular, the knowledge on the part of the defendant of the defamatory words.
The Hong Kong court found that a sweeping legal principle that all ISPs and website hosts are “publishers” of a statement, irrespective of whether the statement originated from them, to be too rigid and unnecessary. It adopted the approach in Bunt which would likely achieve a just and fair result. Although a website host is not found to be a publisher but merely a subordinate distributor, the website host still has the burden of establishing the defense of innocent dissemination.
Defense of Innocent Dissemination
This defense may be relied upon by subordinate distributors of libelous material such as news vendors and proprietors of libraries (and now ISPs and other internet intermediaries) to escape liability if the following can be established:
1. no knowledge that a document contains the libel complained of;
2. no knowledge that the document was of a character likely to contain a libel; and
3. the want of knowledge was not due to any negligence.
The Court found that there is no duty on the part of website hosts to monitor forum messages and there was insufficient evidence that the defendants knew their discussion forum was of a character likely to contain libel.
However, the Court found that in one instance the defendants were negligent for undue delay in removing defamatory statements from the discussion forum. The offending words were only removed 8 months after the defendants knew of the same. They were not negligent in other instances when the offending words were removed shortly after the defendant became aware of the same.
ABOUT THE AUTHOR: Angela Wang & Co
Angela Wang & Co has a team of dedicated and experienced litigators who advise on a wide range of dispute resolution matters including defamation. We have succeeded in tracing the identity of anonymous posters of defamatory statements on the internet by obtaining a court order requiring ISPs to identify their subscribers. We possess solid experience as well as strong business and commercial sense and are able to advise clients on the optimum strategy to resolve complicated disputes.
Copyright Angela Wang & Co.
More information about Angela Wang & Co.
View all articles published by Angela Wang & Co.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
