law reaches bulletin boards

03 April 2001

Rob Deans

Bulletin boards and chat rooms offer an easy and informal means of exchanging information online. They are popular with users and it is common for Web sites to include some form of discussion forum to attract users.
The range of topics covered by bulletin boards is as wide as the Internet itself, from scientific or religious discussions to gossip. Most boards allow users to post messages under a pseudonym, which gives rise to a belief on the part of many users that they can say what they like without any comeback.
However, a series of recent cases in Britain (which have some precedent value in Hong Kong) indicate not only a willingness on the part of offended parties to sue, but also a reasonable prospect of them being successful.
Take David Frankl for example. He sent a series of e-mails defaming his ex-boss, Brian Cone. These e-mails were sent through a Hotmail account under the pseudonym Christina Realtor and they falsely accused Mr Cone of having an affair, fathering an illegitimate child and of making death threats.
Mr Cone and his employers were able to obtain court orders against Microsoft and CompuServe that enabled them to identify Frankl as the sender. As a result, Frankl was ordered to pay damages of £26,000 (about HK292,000) and court costs estimated at £100,000.
The decision against Frankl was affirmed in February in an action against financial Web site Motley Fool. In this case, a user of the site, under the pseudonym Zeddust, had posted defamatory statements regarding an ISP named Totalise.
Motley Fool agreed to prevent Zeddust from posting further Comments. However, it refused to disclose Zeddust's identity, citing its privacy policy. This stated that identities would be disclosed only in limited circumstances, such as a court order. The court had little hesitation in granting such an order, enabling action to be taken against Zeddust.
However, as the operator of another British Web site recently found, defamation is not the only cause for concern for bulletin board operators.
Countess Joulebine operated a Web site which specialised in publishing gossip - the juicier the better. When a confidential legal opinion commissioned by Sir Elton John's lawyers somehow appeared on her bulletin board, she decided not to take it down but to set up a hypertext link so that it could be accessed directly from the site's home page.
The court in this case took little time to hold Countess Joulebine liable for breach of confidence and to grant an injunction against her together with orders for costs and damages. Support for her Web site was withdrawn and the site closed down.
Operators of bulletin boards should be aware that the users of their sites may be tempted to post defamatory messages or other infringing materials and that this has consequences for the operator of the site.
Notices disclaiming responsibility for messages posted on the site's bulletin board can be useful in avoiding primary liability, particularly if used in conjunction with terms and conditions which place appropriate restrictions on the type of material which users are permitted to post.
However, this is not enough to solve all the operator's problems and they should decide beforehand how they intend to react to any problem material on their sites.
They must decide, for example, if they are prepared to take down offending material and/or disclose information on the relevant user. Having made this decision, operators should ensure their sites' terms and conditions and privacy policies are appropriate for the stance they have decided on.

First published in South China Technology Post in April 2001.