Cyber Bullying – Doxxing and Defamation
Author: Mr. Jacky Suen
Author: Mr. Jacky Suen
Introduction
Cyber bullying takes place on digital platforms such as online forums and social media on websites or mobile applications, typically involving certain actions to threaten, intimidate, harass or humiliate another person with a view to causing him or her distress or other harm. One form of cyber bullying which has been of particular concern recently is so-called “doxxing” – namely obtaining and then publicly broadcasting an individual’s private or personal information such as his or her name, address, family background, work history, , photographs, , etc. without his or her knowledge or approval, usually with malicious intent. The methods employed to acquire such information may include searching publicly available databases and social media websites, hacking, and manipulation or deception. Another related form of abuse on cyberspace is defamation, where words or statements are made about a person to damage his or her reputation and expose him or her to hatred, contempt or ridicule.
Amidst heightened social tensions in Hong Kong over the past year, many people have been subjected to these types of cyber bullying, especially on online discussion forums, as personal information becomes “weaponised” and digital spaces become arenas of contest. The first such doxxing and cyber bullying case was received by the Privacy Commissioner for Personal Data (PCPD) on 14 June 2019, and by the end of October 2019 over 3,000 related cases had been received or found by the PCPD, with almost 1,300 cases transferred to the Police for criminal investigation.
However, in most of the cyber bullying cases, the victims may be bullied by their friends, classmates or co-workers. In these cases, it may be very difficult for the victims to resolve the matter by making criminal reports as the police may conclude the matter as a “private civil dispute”.
This article will discuss the civil liability of the posters, online forum providers and the civil protection offered to the victims.
Liability of online forum providers and primary posters
Before the Oriental Press Group Ltd. v. Fevaworks Solutions Ltd case in 2013, the liability of online forums are unclear. Most online forums did not provide any means of complaint against unauthorized disclosure of private information or defamatory statements.
The 2013 case of Oriental Press Group Ltd. v. Fevaworks Solutions Ltd[1] came however as a turning point. The defendants in that case were the forum providers, administrators and managers of HK Golden, one of the most popular membership-based online discussion forums in Hong Kong boasting 30,000 active users online at any given time and over 5,000 postings per hour during peak times. The forum rules contained a prohibition against posting of objectionable content, including defamatory statements, and the administrators has the rights to monitor the discussions and remove objectionable content. The plaintiffs, on the other hand, were the publishers of the Oriental Press Groups running the Oriental Daily, a major newspaper in Hong Kong. The action arose out of defamatory statements posted on the forum on three occasions between 2007 and 2009 alleging that the plaintiffs’ founder was involved in drug trafficking, money laundering and/or other illegal, immoral and corrupt activities. The defendants removed the 2008 statement within three and a half hours after being alerted to its existence, and the 2009 statement was removed immediately upon the defendants’ own discovery. The 2007 statement, however, was not removed from the website until more than eight months after the defendants had been made aware of it.
The case was brought to the Court of Final Appeal. The Court of Final Appeal held that the provider and administrator of an internet forum which encourages and facilitates postings by its members or the public is a “publisher” regardless of whether the provider knew about the defamatory content of the post. In deciding whether the provider is a “main publisher” with strict liability or merely a “subordinate publisher”, the appropriate test is whether the publisher (i) knows or can easily acquire knowledge of the content of the publication and (ii) has a realistic ability to control publication of the content before it is published.
Given that the provider of a busy internet forum in the above case cannot be treated to have knowledge of and control over every post before it is posted, it was decided that the defendants were “subordinate publishers” and could therefore rely on the common law defence of innocent dissemination, available where the publisher can show that he did not know and could not with the exercise of reasonable care in the circumstances have known that the publication contained defamatory content, and that he took all reasonable steps to remove the offending content from circulation as soon as reasonably practicable upon becoming aware of the defamatory content. In the result, the plaintiffs were awarded HKD$10,000 in damages in tort in relation to the first incident as the defendants failed to remove the 2007 statement within a reasonable time upon learning of its existence, whereas the claims in respect of the other two incidents were dismissed since the defendant removed the posts promptly.
The significance of the Oriental Press v. Fevaworks case is to clarify that the provider of an online discussion forum maybe liable for defamatory remarks posted by third parties, so that it has a duty to take all reasonable steps to monitor the contents being posted and to remove any defamatory remarks within a reasonable time upon gaining knowledge of them.
To guard against the risk of liability, most of the online discussion forums have set certain terms and conditions and put in place mechanisms which allow them to better monitor the contents posted and deal with breaches, such as providing users with means to report offending posts to the administrators. When a person is subject of a defamatory post, he or she should notify the provider of the forum immediately and request removal of the content.
Engaging a lawyer
However, where complaints are made personally by laypersons, the providers and administrators of a forum may not take active actions. It may therefore be advisable to engage a lawyer in order to get a more effective response. For instance, our firm has handled a number of cases relating to online defamation and unauthorized disclosure of personal data by writing letters to the relevant forums to set out our client’s case and demand prompt action on the part of the administrators, such as removing the offending posts or terminating the accounts of the registered users who made such posts. Nonetheless, some forums may have highly complicated structures, where the server is located outside Hong Kong and the company is shielded by multiple layers of corporate forms based in “offshore” jurisdictions like the British Virgin Islands. In such cases, it may be costly for the victims to identify and effectively deal with the founders or shareholders of the company hosting the forum or digital platform should the victims intend to commence legal proceedings against the forum
Civil proceedings – interim injunctions for disclosure
A further difficulty is that, even if the relevant post is deleted after the law firm successfully addresses the complaint and made demands to the online forum, that by itself will not necessarily prevent the offender from posting the same or similar content again. To prevent that from happening, the victim may have to obtain an injunction from the Court ordering the forum to hand over information of the offending user, including his or her IP address, as well as a disclosure order requesting the internet service provider to disclose the identity of the user of that IP address. It could be achieved by means of a Norwich Pharmacal order, namely a court order for the disclosure of documents or information granted against a third party which has been innocently mixed up in wrongdoing, usually in order to identify the proper defendant to an action or to obtain information to plead a claim.
However, as Norwich Pharmacal order will only be granted where “necessary” in the interests of justice, and the Court retains discretion as to whether the order should be granted. The discretion to grant a Norwich Pharamcal Order will only exercised where: (i) there are cogent and compelling evidence to demonstrate serious wrongful activities have taken place; the order will or will very likely reap substantial and worthwhile benefits for the plaintiff; and (iii) the discovery sought is not unduly wide. Further, the applicant has an onerous duty to give full and frank disclosure of all material facts (particularly if the application is made ex-parte without notice to the respondent), and will also be required to give certain undertakings to the Court, including an undertaking in damages. For more information on the test for interim injunctions, please refer to the previous article, “Nuisance in Hong Kong and its Protection under Existing Civil Law”, published on our website.
Summary
To sum up, if you are cyber bullied, you may consider first filing a complaint to the respective forum demanding the removal of the offensive posts.
You may also consider seeking legal advice for options available, ranging from a drafting demand letters, commencing a civil action, seeking disclosure order, applying for injunction and filing criminal reports
For queries, our firm’s partner Mrs. Cecilia Wong and our trainee solicitor Ms. Queenie Tong.
[1] [2013] HKCFA 47.
Cyber bullying takes place on digital platforms such as online forums and social media on websites or mobile applications, typically involving certain actions to threaten, intimidate, harass or humiliate another person with a view to causing him or her distress or other harm. One form of cyber bullying which has been of particular concern recently is so-called “doxxing” – namely obtaining and then publicly broadcasting an individual’s private or personal information such as his or her name, address, family background, work history, , photographs, , etc. without his or her knowledge or approval, usually with malicious intent. The methods employed to acquire such information may include searching publicly available databases and social media websites, hacking, and manipulation or deception. Another related form of abuse on cyberspace is defamation, where words or statements are made about a person to damage his or her reputation and expose him or her to hatred, contempt or ridicule.
Amidst heightened social tensions in Hong Kong over the past year, many people have been subjected to these types of cyber bullying, especially on online discussion forums, as personal information becomes “weaponised” and digital spaces become arenas of contest. The first such doxxing and cyber bullying case was received by the Privacy Commissioner for Personal Data (PCPD) on 14 June 2019, and by the end of October 2019 over 3,000 related cases had been received or found by the PCPD, with almost 1,300 cases transferred to the Police for criminal investigation.
However, in most of the cyber bullying cases, the victims may be bullied by their friends, classmates or co-workers. In these cases, it may be very difficult for the victims to resolve the matter by making criminal reports as the police may conclude the matter as a “private civil dispute”.
This article will discuss the civil liability of the posters, online forum providers and the civil protection offered to the victims.
Liability of online forum providers and primary posters
Before the Oriental Press Group Ltd. v. Fevaworks Solutions Ltd case in 2013, the liability of online forums are unclear. Most online forums did not provide any means of complaint against unauthorized disclosure of private information or defamatory statements.
The 2013 case of Oriental Press Group Ltd. v. Fevaworks Solutions Ltd[1] came however as a turning point. The defendants in that case were the forum providers, administrators and managers of HK Golden, one of the most popular membership-based online discussion forums in Hong Kong boasting 30,000 active users online at any given time and over 5,000 postings per hour during peak times. The forum rules contained a prohibition against posting of objectionable content, including defamatory statements, and the administrators has the rights to monitor the discussions and remove objectionable content. The plaintiffs, on the other hand, were the publishers of the Oriental Press Groups running the Oriental Daily, a major newspaper in Hong Kong. The action arose out of defamatory statements posted on the forum on three occasions between 2007 and 2009 alleging that the plaintiffs’ founder was involved in drug trafficking, money laundering and/or other illegal, immoral and corrupt activities. The defendants removed the 2008 statement within three and a half hours after being alerted to its existence, and the 2009 statement was removed immediately upon the defendants’ own discovery. The 2007 statement, however, was not removed from the website until more than eight months after the defendants had been made aware of it.
The case was brought to the Court of Final Appeal. The Court of Final Appeal held that the provider and administrator of an internet forum which encourages and facilitates postings by its members or the public is a “publisher” regardless of whether the provider knew about the defamatory content of the post. In deciding whether the provider is a “main publisher” with strict liability or merely a “subordinate publisher”, the appropriate test is whether the publisher (i) knows or can easily acquire knowledge of the content of the publication and (ii) has a realistic ability to control publication of the content before it is published.
Given that the provider of a busy internet forum in the above case cannot be treated to have knowledge of and control over every post before it is posted, it was decided that the defendants were “subordinate publishers” and could therefore rely on the common law defence of innocent dissemination, available where the publisher can show that he did not know and could not with the exercise of reasonable care in the circumstances have known that the publication contained defamatory content, and that he took all reasonable steps to remove the offending content from circulation as soon as reasonably practicable upon becoming aware of the defamatory content. In the result, the plaintiffs were awarded HKD$10,000 in damages in tort in relation to the first incident as the defendants failed to remove the 2007 statement within a reasonable time upon learning of its existence, whereas the claims in respect of the other two incidents were dismissed since the defendant removed the posts promptly.
The significance of the Oriental Press v. Fevaworks case is to clarify that the provider of an online discussion forum maybe liable for defamatory remarks posted by third parties, so that it has a duty to take all reasonable steps to monitor the contents being posted and to remove any defamatory remarks within a reasonable time upon gaining knowledge of them.
To guard against the risk of liability, most of the online discussion forums have set certain terms and conditions and put in place mechanisms which allow them to better monitor the contents posted and deal with breaches, such as providing users with means to report offending posts to the administrators. When a person is subject of a defamatory post, he or she should notify the provider of the forum immediately and request removal of the content.
Engaging a lawyer
However, where complaints are made personally by laypersons, the providers and administrators of a forum may not take active actions. It may therefore be advisable to engage a lawyer in order to get a more effective response. For instance, our firm has handled a number of cases relating to online defamation and unauthorized disclosure of personal data by writing letters to the relevant forums to set out our client’s case and demand prompt action on the part of the administrators, such as removing the offending posts or terminating the accounts of the registered users who made such posts. Nonetheless, some forums may have highly complicated structures, where the server is located outside Hong Kong and the company is shielded by multiple layers of corporate forms based in “offshore” jurisdictions like the British Virgin Islands. In such cases, it may be costly for the victims to identify and effectively deal with the founders or shareholders of the company hosting the forum or digital platform should the victims intend to commence legal proceedings against the forum
Civil proceedings – interim injunctions for disclosure
A further difficulty is that, even if the relevant post is deleted after the law firm successfully addresses the complaint and made demands to the online forum, that by itself will not necessarily prevent the offender from posting the same or similar content again. To prevent that from happening, the victim may have to obtain an injunction from the Court ordering the forum to hand over information of the offending user, including his or her IP address, as well as a disclosure order requesting the internet service provider to disclose the identity of the user of that IP address. It could be achieved by means of a Norwich Pharmacal order, namely a court order for the disclosure of documents or information granted against a third party which has been innocently mixed up in wrongdoing, usually in order to identify the proper defendant to an action or to obtain information to plead a claim.
However, as Norwich Pharmacal order will only be granted where “necessary” in the interests of justice, and the Court retains discretion as to whether the order should be granted. The discretion to grant a Norwich Pharamcal Order will only exercised where: (i) there are cogent and compelling evidence to demonstrate serious wrongful activities have taken place; the order will or will very likely reap substantial and worthwhile benefits for the plaintiff; and (iii) the discovery sought is not unduly wide. Further, the applicant has an onerous duty to give full and frank disclosure of all material facts (particularly if the application is made ex-parte without notice to the respondent), and will also be required to give certain undertakings to the Court, including an undertaking in damages. For more information on the test for interim injunctions, please refer to the previous article, “Nuisance in Hong Kong and its Protection under Existing Civil Law”, published on our website.
Summary
To sum up, if you are cyber bullied, you may consider first filing a complaint to the respective forum demanding the removal of the offensive posts.
You may also consider seeking legal advice for options available, ranging from a drafting demand letters, commencing a civil action, seeking disclosure order, applying for injunction and filing criminal reports
For queries, our firm’s partner Mrs. Cecilia Wong and our trainee solicitor Ms. Queenie Tong.
[1] [2013] HKCFA 47.
Mrs. Cecilia Wong
Mrs. Cecilia Wong holds a Bachelor of Laws degree of Peking University, Postgraduate Certificate in Laws of the University of Hong Kong, Graduate Diploma in Law of Manchester Metropolitan University, Graduate Diploma in Management of McGill University, Bachelor of Arts (English Literature) of Concordia University, and etc. She is a China-Appointed Attesting Officer. Mrs Wong has over 20 years experience as a solicitor in private practice and is competent in matrimonial law, criminal and civil litigation, probate, commercial and corporate law. She actively participates in promoting the use of mediation in Hong Kong and has enormous experience in mediation and arbitration for various matters. She was appointed as a member of the Chief Justice’s Working Party on Mediation, Vice Chairman of Regulatory Framework Sub-committee of Secretary for Justice’s Steering Committee on Mediation and was recently appointed as a mediator in the Shenzhen Qianhai Cooperation Zone People's Court. She took part in drafting of the Mediation Ordinance. Mrs Wong is currently the member of the Duty Lawyer Service Council, and the committee of the Hong Kong Mediation Accreditation Association Limited (HKMAAL). She is also the chairlady of the Appeal Tribunal Panel, Planning and Lands Branch of Development Bureau. She is a past Council member of the Law Society of Hong Kong
Mrs. Cecilia Wong holds a Bachelor of Laws degree of Peking University, Postgraduate Certificate in Laws of the University of Hong Kong, Graduate Diploma in Law of Manchester Metropolitan University, Graduate Diploma in Management of McGill University, Bachelor of Arts (English Literature) of Concordia University, and etc. She is a China-Appointed Attesting Officer. Mrs Wong has over 20 years experience as a solicitor in private practice and is competent in matrimonial law, criminal and civil litigation, probate, commercial and corporate law. She actively participates in promoting the use of mediation in Hong Kong and has enormous experience in mediation and arbitration for various matters. She was appointed as a member of the Chief Justice’s Working Party on Mediation, Vice Chairman of Regulatory Framework Sub-committee of Secretary for Justice’s Steering Committee on Mediation and was recently appointed as a mediator in the Shenzhen Qianhai Cooperation Zone People's Court. She took part in drafting of the Mediation Ordinance. Mrs Wong is currently the member of the Duty Lawyer Service Council, and the committee of the Hong Kong Mediation Accreditation Association Limited (HKMAAL). She is also the chairlady of the Appeal Tribunal Panel, Planning and Lands Branch of Development Bureau. She is a past Council member of the Law Society of Hong Kong