Oriental Press Group Ltd & Anor (plaintiff) V Fevaworks Solutions Ltd (defendant)

Case Brief

Oriental Press Group Ltd & Anor (Plaintiff) v Fevaworks Solutions Ltd (Defendant)

Case Name: Oriental Press Group Ltd & Anor v Fevaworks Solutions Ltd [2013] HKCU 1503

Court: Court of Final Appeal

Before: Chief Justice Ma, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Litton NPJ and Justice Gleeson NPJ

Date of Decision: 4 July 2013

Procedural History

• The plaintiff brought the case to sue for damages of the two sets of defamatory statements published on the forum owned by the defendant.
• The defendant is granted to pay HK$100,000 for the failure of the removal for the first defamatory statement being on the forum for over eight months.
• On a similar matter, the defendant removed similar statements within a day and escaped liability.
• The judge ruled in favour of the defendant under the defence of innocent dissemination, dealing with the instant statement removal.
• The defendant appealed to this Court.
  

Legal Issue

Whether the respondents, Fevaworks Solution Ltd, are eligible to rely on the innocent dissemination defense or whether they are first or main publishers to whom it does not apply

1. Whether and to what extent such platform providers are in law to be regarded as (first or main p.7) publishers of the defamatory postings.
2. Whether the common law defence of innocent dissemination (or other defence p.3) is applicable.

Fact of the Case

• Two sets of defamatory statements were published on the Hong Kong Golden Forum; the first statement posted in March 2007 and the second on October 2008.
• The statements contained defamatory imputations that the plaintiff has been involved in immoral and illegal activities
• The first and second action were tried together by Chung J.
• First Action: The first action was brought to court in regards to the first statement. The judge held that there was no defence to the action of the defendants, as the statements were not removed from the website for more than eight months. The appellants were awarded HK$100,000 for damages in respect of the action.
• Second Action: This was brought with the “2009 statement” where it again contains defamatory imputations to the defendant. But in respect of the statement, it has been removed within a day.
• In the court of appeal, the defendants relied on the fact that they have no knowledge of the defaming contents being published.
• The plaintiff bought to the appeal to the ground that the defendants were “the first or main publisher”^[1] and therefore they have no defence of innocent dissemination.

Statement of Rule

• A principal may be liable to the defamatory statements of the appellant posted by his agent, as “without its authority, the material would not” have been posted Thompson v Australian Capital TV Ltd 
• “The proprietor of a newspaper, who publishes the paper by his servants, is the publisher of it, and he is liable for the acts of his servants. The printer of the paper prints it by his servants, and therefore he is liable for a libel contained in it” Emmens v Pottle
• The defence of innocent dissemination could be relied upon if a person: (i)”is not the printer the printer or the first or main publisher of a work which contains a libel”,  (ii) was innocent in the knowledge that the work contained libel, that nothing in the work disseminated to him would “ought to have led him to suppose it to be libel”, and that it was not due to his lack of care that he was not aware
  Vizetelly v Mudie’s Selct Library Limited

Holding 

All five judges held to dismiss the appellant’s appeal.

Reasoning

• The judge does not agree on the “appellants’ authorization submission” ^[2]. This is based off the fact that such heavy load of messages interaction goes on as a function of a forum; and on contrary to the case Thompson v Australian Capital TV Ltd^[3], the forum in this case reacted quickly on the removal of the libel contents instead of choosing to ignore them^[4].

• The respondents “are not to be regarded as only possible first or main publishers” ^[5] that this is based on the fact that since the respondents had not themselves written or composed the libel and had only disseminated the libel^[6], they were only considered as subordinate publishers^[7]. Not sure??
• In cases Bunt v Tilley^[8] and Emmens v Pottle^[9] show supports on no legal responsibility should be taken upon to the first or main publisher not-knowingly it would to contain libel. The judge rejects the fact that “a discussion forum provider should be treated as having knowledge of the context of every message posted on the forum” ^[10], where no one would have the ability to know everything that goes on in a many-to-many context^[11].

• The judge points out that the respondent’s “lack of awareness was not due to any negligence on his part” ^[12] and therefore, they accept the defence of the innocent dissemination to the offending postings.