-58.
The second action 4 concerns defamatory postings made on the
website on 21 January 2009 (“the 2009 statements”).
They contained the
imputations that the appellants were founded on drug money, were involved in
drug trafficking, money laundering and immoral activities and were corrupt,
illegal, immoral and unethical. They also alleged that Mr Ma was a member of
a family involved in drug trafficking and a member of or associated with the
14K triad society. Those words were discovered by the respondents on 22
January 2009, about 12 hours after they had been posted and thereupon
immediately removed.
9.
It is not disputed that the respondents were unaware of the existence
of the offending postings until informed of them by the appellants in the case of
the 2007 and 2008 statements, and until the respondents themselves discovered
the 2009 statements.
10.
The two actions against the respondents were tried together by
Chung J without a jury. His Lordship’s award5 regarding the 2007 statements
was not challenged by the respondents either in the Court of Appeal or in this
Court. However, he dismissed the appellants’ claims in both actions in respect
of the 2008 and 2009 statements and his decision was upheld by the Court of
Appeal both as to liability and damages.6
11.
Leave to appeal was granted by the Court of Appeal on the basis that
the following question of great general or public importance arises:
“In respect of statements defamatory of a third party posted on a commercial website
which may be and were accessed by another party, whether the defence of innocent
dissemination or any other defence is available to a commercial website host, and if
so, under what circumstances may such defence be established or defeated?”
4
HCA 597/2009.
5
Chung J, HCA 2140/2008 and HCA 597/2009, 25 February 2011.
6
[2012] 1 HKLRD 848, Fok JA delivering the judgment on liability and Hartmann JA
dealing with damages; Tang VP agreeing.