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A microblogger visits Sina's Weibo website. Photo: Reuters

Lawyer warns of online libel risk

Social media users 'must be vigilant' about potentially defamatory comments posted on their profiles, despite a recent court ruling

Social media
Thomas Chan

Social media users who allow others to post on their profiles might be exposing themselves to the risk of libel, a veteran lawyer says.

Henry Wheare, a partner at law firm Hogan Lovells, issued the warning despite the Court of Final Appeal finding in July that the host of a local online forum was protected by "innocent dissemination", given the fact that the forum received a high volume of traffic, and that its host worked to remove potentially defamatory statements in a timely way.

The ability to delete inappropriate content is obviously important in limiting that risk
Lawyer Henry Wheare

The defence of innocent dissemination absolves people from liability if they have no knowledge of the defamatory nature of statements, and if they make a reasonable effort to detect any such defamatory content.

Wheare said that while there was still a risk, "the ability to delete inappropriate content is obviously important in limiting that risk".

He also said it was "certainly difficult" for defamed parties to legally pursue people who posted comments on others' profiles under fake identities, and that this could be an area for future consultation and legislation.

The lawyer's comments came after the top court's landmark judgment on online defamation. Lawyers Alfred Ip and Scherzade Westwood described the ruling in the latest issue of as having enormous implications for social media service providers such as Facebook and Weibo, as well as for the users of these platforms.

The court ruled that the defence of innocent dissemination was available to Fevaworks Solutions, which had been sued by Oriental Press Group for defamatory statements posted on its popular gossip website, and dismissed the group's appeal.

Mr Justice Roberto Ribeiro said in the judgment that there was a very high volume of traffic on Fevaworks' Hong Kong Golden Forum, with as many as 5,000 postings an hour and 30,000 users online at any time.

Ribeiro said Fevaworks did take down the offensive comments promptly enough to justify the finding that it took reasonable care.

In April, the British Parliament passed the Defamation Act 2013, which provides increased protection to operators of websites that host user-generated content, providing they enable complainants to resolve disputes directly with the author of the material concerned.

Locally, Wheare said the extent to which internet service providers could be held responsible for the publication of defamatory statements depended on the nature of the site.

He advised operators to look out for postings by certain forum members, and to pay attention to postings on discussion topics where previous experience indicated a propensity for defamatory materials.

The lawyer said that there were also other factors to be considered in an online defamation case, including the volume of posts and users, requirements imposed on users to have traceable e-mail addresses, and rules prohibiting the posting of objectionable content.

Another consideration was whether the site had administrators to check and delete objectionable content and field complaints, he said.

Asked if the defence of innocent dissemination could apply to operators of websites with a lower volume of traffic, Wheare said: "They may find it harder to claim innocent dissemination."

However, he added that these website operators should still have "clear protocols in place to forbid and delete offensive material".

This article appeared in the South China Morning Post print edition as: Lawyer warns of online libel risk
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