-40statements.82 It may be recalled that the 2008 statements were posted on 24
October 2008 and found by the Judge to have been brought to the respondents’
notice on 27 October 2008.83 The 2009 statements were posted at 11.25 pm
on 21 January 2009 and discovered by the respondents the next morning. 84 In
accordance with the approach discussed above, I shall first address the position
concerning publication of the defamatory statements before the respondents, as
subordinate publishers, became aware of them; and then turn to consider the
position after they acquired such awareness.
101.
Should the respondents, exercising the reasonable care demanded by
the circumstances, have known of the offending 2008 and 2009 statements
before they actually became aware of them?
The Courts below properly
stressed the very high volume of traffic rapidly generated on the forum, with as
many as 5,000 postings per hour and 30,000 users on line at any time. The
Judge noted that in the circumstances, only minimal editorial control was
exercised85 and Fok JA pointed to the impracticability of automated or manual
screening of postings before they appeared on the forum.86 Fok JA accordingly
supported the finding that “in the light of the sheer volume of postings on the
defendants’ forum, the defendants could not be said to be negligent in not
knowing of the existence of the defamatory statements complained of or the
likelihood of their being on the website forum prior to being informed of the
same”.87 That was the basis for concluding that the respondents had made good
the innocent dissemination defence in relation to the period prior to their
learning of the offending postings.
82
Judge at §56, Court of Appeal at §129.
83
Judge at §77.
84
Court of Appeal §50.
85
Judge at §§55 and 67.
86
Judge at §67, Court of Appeal at §105.
87
Court of Appeal at §138.
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