and Metropolitan International Schools Ltd (trading as SkillsTrain and/or
Train2Game) v Designtechnica Corp (trading as Digital Trends) (Metropolitan
International Schools).
[143] In Oriental Press Group Limited v Fevaworks Solutions Ltd, (Oriental)
Ribeiro PJ explained the reasons for treating providers, administrators and
managers of what was effectively an internet forum (I will refer to them as
forum hosts) as publishers and distinguishing them from the proprietors of the
golf club in Byrne as follows:
[50] Once the nature of the Byrne v Deane principles is grasped, it
becomes clear that they do not apply to internet platform providers like
the respondents. The provider of a discussion forum is in a wholly
different position from that of the occupier of premises who is not in the
business of publishing or facilitating publication at all, but who has had
imposed on him the defamatory act of a trespasser.
[51] The respondents plainly played an active role in encouraging
and facilitating the multitude of internet postings by members of their
forum. As described in Section B of this judgment, they designed the
forum with its various channels catering for their users’ different
interests; they laid down conditions for becoming a member and being
permitted to make postings; they provided users browsing their website
access to the discussion threads developed on their forum; they
employed administrators whose job was to monitor discussions and to
delete postings which broke the rules; and they derived income from
advertisements placed on their website, a business model which
obviously benefits from attracting as many users as possible to the
forum.
[52] The respondents were therefore, in my view, plainly participants
in the publication of postings by the forum’s users and in that sense
they were publishers from the outset, it being in issue whether they
were first or main publishers or merely subordinate publishers…
[53] In this context, I respectfully part company with the reasoning
(adopted on an interlocutory basis) of the English Court of Appeal in
Tamiz v Google Inc. It is reasoning which proceeds on the basis that
successful invocation of the defence of innocent dissemination results
in the defendant being deemed not to have published at all. For the
reasons previously given, I do not accept that premise. Nor am I able
to accept the distinction drawn between the notice board and graffiti
analogies, nor the suggestion that ‘the provision of a platform for blogs
is equivalent to the provision of a notice board’. As indicated above, my
view is that the provider of an internet discussion platform similar to
that provided by the respondents falls from the outset within the broad
traditional concept of ‘a publisher’, a characteristic not shared by a golf
club or other occupier who puts up a notice board on which a
trespassing message is posted.
…
[146] A forum host is the principal of an enterprise, whether large or small,
which encourages and elicits contributions from others whether for
commercial, personal or ideological reasons. On the criteria identified by
Ribeiro PJ, which broadly approximate the criteria identified at [141] above, if
there were a capacity to block postings until they were vetted, there would be
a strong case for holding that forum hosts are primary publishers. However, it