-41102.
Although it would have been helpful if the Judge had made fuller
and more explicit findings in relation to innocent dissemination, Fok JA’s
conclusions were fully justified on the undisputed and incontrovertible
evidence. The respondents were originally unaware of the defamatory content
posted by the originators. Given the very large volume of traffic on the forum
and the speed with which it was generated, they had no realistic means of
acquiring such knowledge or of exercising editorial control over the content
before it was posted. There was nothing to alert them of any likelihood that the
originators of the relevant postings would be posting or had posted the
offending 2008 statements, until they were informed of those statements by the
appellants. Although it is unclear what precisely had led the respondents to
discover for themselves the 2009 statements, the fact that they did in fact
independently make that discovery less than 12 hours after those statements
were posted, is consistent with the respondents having taken a more proactive
approach regarding potentially defamatory postings affecting the appellants,
given their experience of the 2008 statements. It is therefore my view that the
Judge and the Court of Appeal were entitled to conclude that the respondents
had made good the defence in respect of the period before the offending
material came to their notice.
103.
Turning to what occurred after the respondents came to know of the
postings, it is not in dispute that the 2008 statements were taken down some
three and a half hours after notification was received. And the 2009 statements
which had been posted at 11.25 pm on 21 January 2009, were removed by the
respondents at 11.40 am on 22 January 2009 as soon as they were discovered.88
While the Courts below89 assessed the adequacy of the respondents’ reactions
on the basis of the notice board line of cases which I consider inapplicable, their
conclusion that the respondents took down the offending postings within a
88
Affirmation of Lam Cho Shun, 23 September 2009, §7(b).
89
Judge at §§77 and 80; Court of Appeal at §140.
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