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[民事案件] 東方報業集團有限公司 告「獨立媒體」誹謗
http://legalref.judiciary.gov.hk/doc/judg/word/vetted/other/en/2010/HCA001253_2010.doc
BETWEEN
ORIENTAL PRESS GROUP LIMITED Plaintiff
(東方報業集團有限公司)
and
INMEDIAHK.NET LIMITED Defendant
1. These proceedings concern[#ff0011] two allegedly defamatory articles in Chinese[/#ff0011] which appeared on the website http://www.inmediahk.net (the “Website”) in January 2009 and October 2007 respectively. [#ff0011]The articles were posted on the Website by persons unknown to the Plaintiff under the pseudonyms “小狼” and “hevangel”.[/#ff0011] In addition to the usual[#ff0011] remedies of damages and injunction, the Plaintiff in this action also seeks disclosure of information[/#ff0011] relating to the personal particulars of “小狼” and “hevangel”.
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21. For the avoidance of doubt, [#ff0011]I am also satisfied that the 1st Offending Words bore the meaning in para 16(1) above, but I am not satisfied that it was defamatory to allege that the Plaintiff was founded decades ago with drugs money. The allegation could well be defamatory of its founder Mr Ma, but that would not assist the Plaintiff.[/#ff0011]
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24. I am satisfied that the 2nd Offending Words which bore the following meanings were defamatory of the Plaintiff:
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E. Was the Defendant responsible for the publication of the Offending Words
E1. General Principles
27. [#ff0011]At common law, the person who first composes the defamatory material is liable[/#ff0011], provided he intends to publish it or [#ff0011]fails to take reasonable care to prevent its publication.[/#ff0011] [#ff0011] Liability extends to any person who participates in, secures or authorizes the publication of the defamatory material. [/#ff0011]
28. [#ff0011]Special rules apply[/#ff0011] to mere distributors who have only taken a subordinate part in disseminating defamatory material eg news vendors and proprietors of libraries. Such persons can escape liability by showing
[#ff0011](1) They do not know that the publication eg a book or paper contains the libel complained of or that it is of a character likely to contain a libel;
(2) Such want of knowledge is not due to any negligence on their part.[/#ff0011]
29. These persons may be referred to as subordinate distributors.[#ff0011] To escape liability, they bear the onus of proving facts necessary to establish the above, commonly known as the defence of innocent dissemination.[/#ff0011]
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38. It is true that in the present case, there is no evidence before this court on the number of users of or daily/hourly postings on the Website. But equally, there is no evidence as to the Defendant’s ability to vet the contents of every third party posting and screen out potentially defamatory material.
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42. In the present case, the Plaintiff has not adduced evidence of that something more. Quite on the contrary, the evidence is that at the bottom of each page of the Website, there appeared an icon entitled “免責條款” ie “Exemption Clauses” and if one clicked the icon, one would find a “Disclaimer” in the following terms:
“香港獨立媒體網是一個多媒體平台，內容和資訊的真確性由訊息提供者承擔，香港獨立媒體網，有權但無此義務，改善或更正網站內容內任何部分之錯誤或疏失。故此，讀者於此接受並承認信賴任何「資料」所生之風險應自行承擔。
網站文章中的超連結或會導引讀者至有些人認為是具攻擊性或不適當的網站，香港獨立媒體網對這些超連結內容所涉及之正確性、著作權歸屬，或是其合法性或正當性如何，並不負任何責任。”
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44. As I have not heard arguments on it,[#ff0011] I do not for one moment suggest that this Disclaimer had the legal effect of excluding the Defendant’s liability towards the Plaintiff. [/#ff0011] The relevance of the Disclaimer is that it militates against any scope for inference that the Defendant, in hosting the Website, was content to accept or should be taken to have accepted responsibility for the defamatory contents posted by all and sundry.
45. In the end,[#ff0011] I am not persuaded that the Defendant should be held liable as a primary publisher of the Offending Words.[/#ff0011]
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G. Final Injunction
73. The Defendant’s liability having been established, in the absence of an undertaking by the Defendant that it will not repeat the publication of the Offending Words or any other circumstances which satisfy this court that there will not be any further publication, an injunction would be appropriate: Gatley on Libel and Slander 11th Ed para 9.28; John v MGN Ltd [1997] QB 586, 607.
74. [#ff0011]I therefore grant an injunction[/#ff0011] in terms of paragraph 2 of the prayer for relief in the amended Statement of Claim.
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79. In the present case, I am satisfied that (1) [#ff0011]a wrong has been committed by the persons[/#ff0011] who posted the two Articles on the Website and identified themselves as “小狼” and “hevangel”; (2) [#ff0011]the Plaintiff needs to identify these persons in order to consider whether to bring action against them; [/#ff0011]and (3)[#ff0011] the Defendant (a) has been mixed up in their wrongdoing so as to have facilitated it [/#ff0011]
and (b) is likely to be able to provide at least some information relating to their identities.
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83. In relation to personal particulars of the Internet users under the pseudonyms “小狼” and “hevangel”, the purpose is obviously to enable the Plaintiff to identify the originators of the two Articles with a view to taking legal action against them. However, [#ff0011]I am not satisfied that their Hong Kong Identity Card numbers or mobile phone numbers are even remotely likely to be in the possession of the Defendant[/#ff0011], as it seems to me rather [#ff0011]unusual for internet discussion forums to require such information from their registered users.[/#ff0011] No evidence has been placed before this court to establish otherwise. Whether all or only some of the other information sought is in the possession of the Defendant remains to be seen.
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85. To conclude, there will be an Order that the Defendant do disclose to the Plaintiff information and documentation, in so far as the same is in its possession, custody or power, relating to the number of hits
(1) from 23 January 2009 to 17 August 2010 in respect of the 1st Article;
(2) from 12 October 2007 to 17 August 2010 in respect of the 2nd Article.
86. There will also be an Order that the Defendant do disclose to the Plaintiff information and documentation, in so far as the same is in its possession, custody or power, relating to the (i) full name (ii) email address and (iii) residential address of:
(1) the internet user who posted the 1st Offending Words on the Website on 23 January 2009 at about 4.36 a.m. under the username “小狼”; and
(2) the internet user who posted the 2nd Offending Words on the Website on 12 October 2007 at about 3.39 a.m. under the username “hevangel”.
87. I order that such disclosure is to be made by a director of the Defendant and verified on affidavit within 21 days of the date of the sealed Order. I also give liberty to apply.
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BETWEEN
ORIENTAL PRESS GROUP LIMITED Plaintiff
(東方報業集團有限公司)
and
INMEDIAHK.NET LIMITED Defendant
1. These proceedings concern[#ff0011] two allegedly defamatory articles in Chinese[/#ff0011] which appeared on the website http://www.inmediahk.net (the “Website”) in January 2009 and October 2007 respectively. [#ff0011]The articles were posted on the Website by persons unknown to the Plaintiff under the pseudonyms “小狼” and “hevangel”.[/#ff0011] In addition to the usual[#ff0011] remedies of damages and injunction, the Plaintiff in this action also seeks disclosure of information[/#ff0011] relating to the personal particulars of “小狼” and “hevangel”.
.
.
.
21. For the avoidance of doubt, [#ff0011]I am also satisfied that the 1st Offending Words bore the meaning in para 16(1) above, but I am not satisfied that it was defamatory to allege that the Plaintiff was founded decades ago with drugs money. The allegation could well be defamatory of its founder Mr Ma, but that would not assist the Plaintiff.[/#ff0011]
.
.
.
24. I am satisfied that the 2nd Offending Words which bore the following meanings were defamatory of the Plaintiff:
.
.
.
E. Was the Defendant responsible for the publication of the Offending Words
E1. General Principles
27. [#ff0011]At common law, the person who first composes the defamatory material is liable[/#ff0011], provided he intends to publish it or [#ff0011]fails to take reasonable care to prevent its publication.[/#ff0011] [#ff0011] Liability extends to any person who participates in, secures or authorizes the publication of the defamatory material. [/#ff0011]
28. [#ff0011]Special rules apply[/#ff0011]
to mere distributors who have only taken a subordinate part in disseminating defamatory material eg news vendors and proprietors of libraries. Such persons can escape liability by showing [#ff0011](1) They do not know that the publication eg a book or paper contains the libel complained of or that it is of a character likely to contain a libel;
(2) Such want of knowledge is not due to any negligence on their part.[/#ff0011]
29. These persons may be referred to as subordinate distributors.[#ff0011] To escape liability, they bear the onus of proving facts necessary to establish the above, commonly known as the defence of innocent dissemination.[/#ff0011]
.
.
.
38. It is true that in the present case, there is no evidence before this court on the number of users of or daily/hourly postings on the Website. But equally, there is no evidence as to the Defendant’s ability to vet the contents of every third party posting and screen out potentially defamatory material.
.
.
.
42. In the present case, the Plaintiff has not adduced evidence of that something more. Quite on the contrary, the evidence is that at the bottom of each page of the Website, there appeared an icon entitled “免責條款” ie “Exemption Clauses” and if one clicked the icon, one would find a “Disclaimer” in the following terms:
“香港獨立媒體網是一個多媒體平台，內容和資訊的真確性由訊息提供者承擔，香港獨立媒體網，有權但無此義務，改善或更正網站內容內任何部分之錯誤或疏失。故此，讀者於此接受並承認信賴任何「資料」所生之風險應自行承擔。
網站文章中的超連結或會導引讀者至有些人認為是具攻擊性或不適當的網站，香港獨立媒體網對這些超連結內容所涉及之正確性、著作權歸屬，或是其合法性或正當性如何，並不負任何責任。”
.
.
.
44. As I have not heard arguments on it,[#ff0011] I do not for one moment suggest that this Disclaimer had the legal effect of excluding the Defendant’s liability towards the Plaintiff. [/#ff0011]
The relevance of the Disclaimer is that it militates against any scope for inference that the Defendant, in hosting the Website, was content to accept or should be taken to have accepted responsibility for the defamatory contents posted by all and sundry. 45. In the end,[#ff0011] I am not persuaded that the Defendant should be held liable as a primary publisher of the Offending Words.[/#ff0011]
.
.
.
G. Final Injunction
73. The Defendant’s liability having been established, in the absence of an undertaking by the Defendant that it will not repeat the publication of the Offending Words or any other circumstances which satisfy this court that there will not be any further publication, an injunction would be appropriate: Gatley on Libel and Slander 11th Ed para 9.28; John v MGN Ltd [1997] QB 586, 607.
74. [#ff0011]I therefore grant an injunction[/#ff0011] in terms of paragraph 2 of the prayer for relief in the amended Statement of Claim.
.
.
.
79. In the present case, I am satisfied that (1) [#ff0011]a wrong has been committed by the persons[/#ff0011] who posted the two Articles on the Website and identified themselves as “小狼” and “hevangel”; (2) [#ff0011]the Plaintiff needs to identify these persons in order to consider whether to bring action against them; [/#ff0011]and (3)[#ff0011] the Defendant (a) has been mixed up in their wrongdoing so as to have facilitated it [/#ff0011]
and (b) is likely to be able to provide at least some information relating to their identities. .
.
.
83. In relation to personal particulars of the Internet users under the pseudonyms “小狼” and “hevangel”, the purpose is obviously to enable the Plaintiff to identify the originators of the two Articles with a view to taking legal action against them. However, [#ff0011]I am not satisfied that their Hong Kong Identity Card numbers or mobile phone numbers are even remotely likely to be in the possession of the Defendant[/#ff0011], as it seems to me rather [#ff0011]unusual for internet discussion forums to require such information from their registered users.[/#ff0011]
No evidence has been placed before this court to establish otherwise. Whether all or only some of the other information sought is in the possession of the Defendant remains to be seen..
.
.
85. To conclude, there will be an Order that the Defendant do disclose to the Plaintiff information and documentation, in so far as the same is in its possession, custody or power, relating to the number of hits
(1) from 23 January 2009 to 17 August 2010 in respect of the 1st Article;
(2) from 12 October 2007 to 17 August 2010 in respect of the 2nd Article.
86. There will also be an Order that the Defendant do disclose to the Plaintiff information and documentation, in so far as the same is in its possession, custody or power, relating to the (i) full name (ii) email address and (iii) residential address of:
(1) the internet user who posted the 1st Offending Words on the Website on 23 January 2009 at about 4.36 a.m. under the username “小狼”; and
(2) the internet user who posted the 2nd Offending Words on the Website on 12 October 2007 at about 3.39 a.m. under the username “hevangel”.
87. I order that such disclosure is to be made by a director of the Defendant and verified on affidavit within 21 days of the date of the sealed Order. I also give liberty to apply.
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