7. If defamatory words about a person were placed on an internet website by users/viewers of the website, will that website (or the person/company in charge of it) be liable for defamation?

At common law, some protection is given to persons who are not the author, printer or the first or main publisher of defamatory materials. There is also a statutory defence under section 25(5) of the Defamation Ordinance for unintentional defamation if the defendant (i.e. the publisher) can prove that:

  1. he did not intend to publish the words of and concerning the person, and did not know of the circumstances that they might be understood to refer to that person; OR
  2. the words were not defamatory on the surface and the publisher did not know of the circumstances under which they might be understood to be defaming that person; AND
  3. all reasonable care has been taken by the publisher to avoid any defamatory material in the publication; AND
  4. in order to avoid or reduce the liability for unintentional defamation, the publisher has to make an "offer of amends" under section 25 of the Defamation Ordinance.

(Note: "Offer of amends" generally means that the defendant offers to give a formal apology to the plaintiff, and the plaintiff can decide whether or not to accept this offer. A common example of executing an offer of amends is to publish a notice of correction regarding the words complained of, together with a statement of apology, in a newspaper.)

Generally speaking, when defamatory materials have been left on a website by internet users, that website (or the person/company/internet service provider in charge of it) may be liable as the publisher of said defamatory materials if they take no action to remove the defamatory materials from the website .

In a British case, an internet service provider received and kept on its website an article which contained defamatory materials concerning the plaintiff (who is a lecturer in physics, mathematics and computer science). The article was posted by an unknown person using another service provider. The lecturer had approached the defendant (the internet service provider) requesting it to remove the article from its website. The defendant did not do so and the article remained available on the website until its automatic expiry, some 10 days afterwards. The court held that an internet service provider was a publisher of the material which it "hosts" where it was aware that the material was defamatory. The judge even suggested that, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, the provider publish that posting to any subscribers to their internet service provider who accesses the newsgroup containing that posting. Every time one of the provider's customers accesses the website and sees the posting defaming the lecturer, it constitutes a publication to that customer.