Online Defamation in Hong Kong: Fevaworks and Beyond

Among the fundamental concerns in Hong Kong is freedom of speech, one that is not absolute and requires balancing vis-a-vis other rights and interests. Although the internet has made the transmission of information faster and easier, such convenience may encourage potentially defamatory materials to go ‘viral’ within seconds. The relative anonymity of subscribers may persuade claimants to pursue an action against the online service providers. Even though liability rests with the originator of a defamatory statement, the law imposes liability on parties who publish the statement. An online service provider may potentially be liable as publisher of the defamatory material. At common law, it is well settled that a person who intentionally or negligently takes part in the publication of another person’s defamatory statement is responsible for the publication as the original author. However, a defense is available to a subordinate publisher if he can prove that he did not know that the publication in question contained a libel; he did not know that the publication was of a character that was likely to contain a libel; and that he was not negligent in the publication of the statement in question. The dominance of the internet has increased the potential risks of internet intermediaries (whether as hosts or search engines). Such intermediaries often become targets in defamation.

Internet intermediaries may take many forms. They can be forum providers which exercise editorial control; they can be search engines which simply retrieve materials relating to what the user types in; or they can be passive service providers which solely provide internet service with no control over the activities of their subscribers. The level of control or participation is thus an important determining factor. Should internet intermediaries be regarded as primary publishers because they manage a website or should they be regarded as a subordinate publisher, given that these intermediaries may not be substantially involved in the publication? If they are considered to be subordinate publishers, to what extent are they allowed to rely on the common law defense of innocent dissemination? These issues were dealt with by the Court of Final Appeal in the Hong Kong case of Oriental Press Group Ltd v Fevaworks Solutions Ltd. The case examined the existing common law position and considered cases from the United Kingdom and Australia. This article re-examines the principles derived from the case and their appropriateness when dealing with intermediary liabilities. It considers the application of the orthodox approach to search engines as well as common law developments in this area and argues that legislative reform is essential to ensure consistency and coherence in this area of law.