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Defamation 2.0 - Defamation Liabilities for Internet Operators in Hong Kong

By David Ma

Unlike in the U.S. (with the Communications Decency Act, §230, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider") and the U.K. (with the Defamation Act 2013, § 5(2), "It is a defence for the [website] operator to show that it was not the operator who posted the statement on the website"), internet operators in Hong Kong do not receive statutory protection from defamation. This blog reviews the findings in recent Hong Kong cases.

(1) Internet Forum Operator

An internet forum operator that actively encourages user postings is different from a notice board owner ambushed with a defamatory message in trespass. (For example, Byrne v Deane [1937] 1 KB 818) The operator, unlike a post office or a telephone company, is not a mere conduit or passive facilitator. However, the operator would not be deemed to have authorized defamatory posts if it lays down rules prohibiting offending contents, despite inefficient enforcement.

A forum operator is a publisher, as it provides the platform for the postings. However, as long as it does not know of the gist or substance of the postings and cannot prevent their publication, it would be considered a subordinate, rather than a primary publisher. As a subordinate publisher, the operator would qualify for the innocent dissemination defense if (a) it exercises reasonable care and is not aware of the defamatory content, and (b) upon notice promptly takes "all reasonable steps to remove the offending content from circulation as soon as reasonably practicable". (Oriental Press v Fevaworks [2013] HKCFA 47)

(2) Content Aggregator

Posting hyperlinks onto a website is not equivalent to publishing the defamatory content contained in the hyperlinks. The former act does not fall within the strict publication rule. Mere linking is content neutral and analogous to having a footnote bringing attention to readers that a source existed, without repeating the content.

However, the situation is different if there is a deliberate act to make defamatory information readily available to a third party in comprehensible form, i.e. by deep linking, with actual receipt by a third party. (Crookes v Newton [2011] 3 SCR 269 (Supreme Court of Canada), as cited in Fevaworks) Content aggregators reproducing excerpts from and hyperlinking to external sources may attract publisher liabilities if the excerpts contain defamatory wording.

(3) Search Engine Operator

(a) Basic search engine (Edmond Yeung v Google (Hong Kong) Limited DCCJ 4322 of 2013)

A search engine operator that displays snippets of information with hyperlinks generated from automatic algorithmic web-crawling is a facilitator and not a publisher, on the basis of authorship or acquiescence. This is so because there is no human input from the operator, no control over search terms typed in by future users, and no mental element for publishing on the part of the operator.

As long as the search engine has a notice and takedown procedure and makes reasonable efforts in complying with legitimate requests, "it is hardly possible to fix [the search engine operator] with liability on the basis of authorisation, approval or acquiescence". (Metropolitan International Schools v Designtechnica [2009] EWHC 1765 (QB), as cited in Edmond Yeung, at paragraph 58)

(b) Autocomplete and related searches

Although there is no human input, "autocomplete" and "related searches" functions go beyond mere crawling and automatic reproduction of snippets and hyperlinks. By aggregating prior user searches and generating predictive keywords, the search engine operator may have ventured from the territory of a mere conduit or a passive facilitator into that of a publisher. The matter will likely receive further judicial attention in the near future.

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This page contains a single entry from the blog posted on September 30, 2015 12:22 PM.

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