Defamation Recent Developments – When is publication innocent and other matters?

In a recent decision of the Court of Appeal in Hong Kong, perceived to be the first of its kind in Hong Kong (and it appears in other similar common law jurisdictions) the Court of Appeal upheld a decision of Mr Justice Chung in finding that the host of a website forum can be regarded as being in a position similar to that of someone who makes a notice board available to third parties to post notices (Oriental Press Group Limited and Another v Fevaworks Solutions Limited CACV No. 53 of 2011).

In this decision, Mr Justice Fok JA considered, in particular, three English cases and one Australian case, and determined that he would follow the approach of Mr Justice Eady in a recent English case (Metropolitan International Schools v Designtechnica Group and Others) in holding:

“A more logical approach, in my opinion, would be to impose legal responsibility for publication on the basis of acquiescence. On this basis, liability for defamatory material would attach to the host of a website forum once it had been notified of the existence of the material and requested to remove it but had failed to do so within a reasonable time.”

This finding, itself, was based upon an earlier decision of Mr Justice Eady in which he had found that for a person to be held responsible for publishing defamatory matter, there must be knowing involvement in the process of publication of the relevant words. Consequently a website host which did not have any knowing involvement in the content of the words prior to their being posted upon a forum would not be held to be a primary publisher of the defamatory material, but rather a subordinate distributor.

Mr Justice Fok JA was, however, cautious to express his decision in terms that it was on the facts of the particular case that he found that the particular forum host not to be liable, and that in other factual situations a host might still be liable.

He also pointed out that his finding did not mean that a person defamed by a third party posting on a “notice board” on a website would not have a remedy. Firstly, the person could, through the website host, seek to obtain the identity of the original poster of the material and take action against that person. Secondly, once the website host became aware of the defamatory content, if it did not remove the defamatory content within a reasonable time, it would no longer be entitled to a defence of innocent dissemination and would become liable.

Two other interesting cases (one of which was referred to by Mr Justice Fok JA) recently decided on defamation include Metropolitan International Schools, in which a claim was brought against not only the operator of a website which provided bulletin boards, but also against Google Inc., the well-known ISP, and its UK subsidiary, on the basis that defamatory comments appeared as “snippets of” information when an internet search was carried out under the Plaintiff's name using Google's search engine.

On an interlocutory determination Mr Justice Eady found that it was unreasonable to attribute responsibility for publication to Google, whether on the basis of authorship or acquiescence.

Further, in the Supreme Court of Canada (Crookes v. Newton, 2011 SCC 47) (on an appeal from the British Columbia Court of Appeal) the Supreme Court held that a hyperlink (being a device routinely used in articles on the internet, whereby a word or phrase is identified, often with underlining, as being a portal to additional, related information) which connected the reader to allegedly defamatory material could not be said to “publish” that material for the purposes of defamation.

The Supreme Court held that hyperlinks are, in essence, references, saying:

“Hyperlinks may be inserted with or without the knowledge of the operator of the site containing the secondary article. Because the content of the secondary article is often produced by someone other than the person who inserted the hyperlink in the primary article, the content on the other end of the link can be changed at any time by whoever controls the secondary page. Although the primary author controls whether there is a hyperlink and what article that word or phrase is linked to, inserting the hyperlink gives the primary author no control of the content in the secondary article to which he or she has linked.”

In determining that it is the actual creator or poster of the defamatory words in the secondary article who is the publisher when a third person follows a hyperlink to that content, the Court found that when a person follows a link they are leaving one source and moving to another.

However, the Court also found that where a defendant used a reference in a manner that in itself conveyed a defamatory meaning about the plaintiff, then this could give rise to liability. So:

“Individuals may attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actually spread something defamatory.”

This was the view of the majority, but the Chief Justice and another Judge from the Supreme Court, whilst agreeing with the result, found a different formulation of the test for when a hyperlinked reference constitutes publication of defamatory material. The Chief Justice, giving the judgment, said:

“The combined text and hyperlink may amount to publication of defamatory material in the hyperlink in some circumstances. Publication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text. If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content. The defendant must adopt or endorse the defamatory words or material; a mere general reference to a website is not enough. … In sum, in our view, a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement to the specific content it links to.”

A final dissenting judgment of Deschamps J was given, which we will not address in this article.