In our February 2012 Newsletter, we reported on the case of Oriental Press Group Limited & Anor v Fevaworks Solutions Limited, in which the Court of Appeal upheld the Court of First Instance’s decision that providers of an internet discussion forum were not the first (or main) publishers of defamatory postings by its users, but were instead, subordinate publishers, to whom the common law defence of innocent dissemination was available. On 4 July 2013, the Court of Final Appeal upheld that decision, holding as follows:
- Providers of internet discussion platforms, like the Respondents, are in law, to be regarded as publishers of defamatory statements made by its users.
- Contrary to the Court of Appeal’s findings, providers of internet discussion forums are not in the same position as owners or occupiers of premises on which unauthorised third parties had affixed defamatory statements to notice boards or scrawled graffiti and who may be treated as the publisher of such defamatory statements, once they become aware of their presence and do nothing to remove it. Occupiers in the notice board and graffiti cases have not in any sense assisted or participated in the originator’s publication of the libel and a person who defaces an occupier’s wall with graffiti does not do so with the occupier’s approval or encouragement. The principles laid down in the line of cases relating to these notice board and graffiti cases, which say that an occupier only becomes a publisher of the libel if he becomes aware of it and allows it to remain, do not therefore apply to internet discussion forum providers, who are in a wholly different position from occupiers of premises who are not in the business of publishing or facilitating publication at all, but who have had the defamatory act of a trespasser imposed on them.
- The Respondents plainly played an active role in encouraging and facilitating the multitude of internet postings by members of their forum. They had designed the forum, laid down conditions for becoming a member and making postings and provided users access to discussion threads developed on the forum. They also employed administrators to monitor discussions and delete postings which broke the rules. The Respondents were therefore plainly participants in the publication of the postings by forum users and in that sense were publishers from the outset. The question was whether they were first or main publishers or merely subordinate publishers. If the latter, the defence of innocent dissemination would be available to them.
- The Respondents were not the originators of the defamatory statements. Those statements were the result of their having facilitated the speech of others in a forum hosting a large volume of many-to-many communications. Plainly, if a defendant knew the content of a defamatory article and authorized or participated in its publication, the defendant would be liable as a main publisher, but in the present case, the Respondents were not aware of the offending words until some time after they had been published on the forum. The fact that the Respondents laid down rules prohibiting postings with objectionable content, including defamation, and employed administrators to delete such and terminate accounts of repeat offenders, was sufficient to show that the Respondents were not authorizing the publication of whatever forum users might choose to post.
- Internet material is “published”, for the purpose of libel law, when and where it is accessed or downloaded in comprehensible form. The question was whether the Respondents were the first or main publishers or were merely subordinate publishers. The following were the criteria for identifying a person as a first or main publisher:-
- he knows or can easily acquire knowledge of the content of the article being published (“the Knowledge Criterion”); and
- he has a realistic ability to control publication of such content i.e. editorial control, involving the ability to prevent publication (“the Control Criterion”).
- In respect of the Knowledge Criterion, a discussion forum provider should not be treated as having knowledge of the content of every message posted on the forum and be deemed to be the first or main publisher of it.
- When the Knowledge and Control Criterion were applied to the Respondents, it was clear that they were subordinate publishers and not first or main publishers of the defamatory postings. They were certainly publishers of the postings since they provided a platform for their dissemination, but they were not aware of their content and realistically, in a many-to-many context, did not have the ability or opportunity to prevent their dissemination, having learned of them only after they had already been published by the originators. The Respondents could therefore invoke the innocent dissemination defence as subordinate publishers.
- The innocent dissemination defence requires the defendant to prove that he did not know and would not, with the exercise of reasonable care in the relevant circumstances, have known that the article contained defamatory content. A subordinate publisher should be afforded continued protection of the defence if he proves that upon becoming aware of such content, he promptly took all reasonable steps to remove the offending content from circulation as soon as reasonably practicable.
- The Respondents were originally unaware of the defamatory content posted by the originators and, given the very large volume of traffic on the forum and speed with which it was generated, they had no realistic means of acquiring knowledge or of exercising editorial control over the content before it was posted. There was nothing to alert them of the likelihood that the originators would be posting or had posted the offending statements, until they were informed of such by the Appellants. The Court of First Instance and Court of Appeal had been entitled to conclude that the Respondents had made good the defence in respect of the period before the offending material came to their notice.
- The Respondents had taken down the offending material three and a half hours after they had been notified of it. The promptness with which the Respondents took down the offending postings justified the finding that they acted properly. The Respondents had made good the innocent dissemination defence in respect of the defamatory postings both before and after they came to know of their existence and the Appellants appeal therefore had to be dismissed.
The Court of Final Appeal recognized in its judgment the balancing act between freedom of expression on the one hand and the right to have one’s reputation protected on the other hand. It referred to the value of free and open many-to-many communications on discussion platforms and the fact that the ability of internet intermediaries to host them in good faith must not be unduly impaired by the imposition of unrealistic or overly strict standards, which would make commercial operation impossible or introduce a chilling effect, discouraging free and open exchanges. At the same time, the Court of Final Appeal recognized that a platform provider must genuinely take all reasonable steps to protect the rights and reputations of persons from being unlawfully damaged by postings published on the forum.