A Study of Online Forum Liabilities for Defamation: Hong Kong Court in Internet Fever

Abstract

Defamation has been a fertile ground of litigation and has never failed to present new challenges to the courts in different jurisdictions in the Internet age. In 2013, the Court of Final Appeal (CFA) of the Hong Kong Special Administration Region (Hong Kong) finally had a chance to decide on the liability of online service providers in the case of Oriental Press Group Ltd. v. Fevaworks Solutions Ltd. The highest court in Hong Kong confirmed the decisions of the lower courts and ruled that a provider of online discussion forum has to bear legal liabilities for defamatory remarks posted by third parties,and therefore, when it has received notification from the complainant it has a duty to remove the concerned remarks within reasonable time. Seemingly, this approach on liability is in line with the legal positions in other jurisdictions which are based largely on a notice and take down regime. However, a careful analysis of the Feva judgment reveals that the Hong Kong court reaches this conclusion through an extension of common law principles in holding online intermediaries of discussion forum as ‘secondary publishers’ with liabilities being imposed from the outset, but provided with the defence of innocent dissemination. This article explains why this interpretation of common law is unsatisfactory, and argues that a statutory solution will provide a better answer to solve the conundrum on online intermediaries’ liabilities in defamation disputes.