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Can A Web Developer/Hosting Company Be Liable For Defamatory Remarks On His Client’s Website?

September 16th, 2009 · 2 Comments

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(Image source: 123rf.com)

As mentioned in my previous post – Can A Webmaster Disclose The Perosnal Information Of His Member to 3rd Party?, a webmaster may be sued as co-defendent in a defamation suit for publishing the defamatory statement online.

It is interesting to look at the fact and decision of a recent Malaysian case – Stemlife Bhd v. Bristol-Myers Squibb (M) Sdn Bhd [2008] 6 CLJ 200 (Stemlife’s case):

Background Facts

Arachnid Sdn Bhd (‘Arachnid’) a company that provides web development and related services was sued by Stemlife Bhd as the 2nd Defendent in this case (the 1st defendant was Bristol-Myers Squibb (M) Sdn Bhd.)

In 2003, Arachnid was hired by the 1st Defendant to set up the Website -www.meadjohnsonasia.com. Arachnid thereafter
provided maintenance services for the Website.

The Website hosts a forum known as the Asian Mom’s Network (‘the Forum’).

ln 2007, the words complained of by the Plaintiff were posted by Forum users (witht he username of “kakalily” and “stemlie”) on the Forum.

The Plaintiff via his lawyer demanded the 1st Defendant who is the owner of the Forum to remove certain topics and a hyperlink from the Forum on the basis that they were defamatory of the Plaintiff.

The 1st Defendant proceed to remove the defamatory statement as requested and also instructed the 2nd Defendant to deactivate the user account of “kakalily” and “stemlie”.

The 2nd Defendant hired a lawyer to strike out the Plaintiffs suit under Order 18 r 19 (1)(a) and/or (b) and/or (d) on the basis that it discloses no reasonable cause of action or is frivolous, vexatious and an abuse of process of this Court.

Court’s Finding:

I find that the Suit is Frivolous, Vexatious, Abuse of Process. Reasons are as follows

a) Arachnid was hired by the 1st Defendant to set up the “Website;

b) Arachnid provided maintenance services including providing updates and upgrades upon instructions from the 1st Defendant.
This is not sufficient to attach liability on the part of Arachnid.

c) There is no participation by Arachnid in the promotion of the Forum.

d) The contents of the Website would not be within the knowledge of Arachnid, unless informed by the 1st Defendant.

e) Arachnid does not control content posted on the Forum and that it does not moderate or monitor the Forum. Any postings
on the Website will only be removed upon instructions by the 1st Defendant.

f) The Plaintiff had not shown as to how Arachnid contributed or “knowingly” involved in the publication of the words complained
of.

In relation to the words complained of, Arachnid only became aware of the postings when it was informed by the 1st Defendant of the same.”

In this case, the court found that Arachnid had no control on the contents of the Website, and had never played an active role in
respect of the publications and neither would Arachnid have knowledge of the contents of the words posted on the website.

On another hand, the Plaintiff alleges that Arachnid is responsible for the alleged defamation and claimed that since libel over the internet is a developing area of the law, the role and extent of 2nd Defendant’s involvement in the publication cannot be ascertained unless a trial is conducted.

However, the judge in this case said “I cannot agree with this proposition as this would amount to “fishing” for evidence. It goes to show that the Plaintiff does not know of the liability of Arachnid in this case. The Plaintiff seems to state that, at trial hopefully this issue can be made clear. That is not a legitimate use of court proceedings and clearly an abuse of courts
process.

It is not appropriate in law to prosecute an action without any basis with the hope that something may turn out. I find support
for this proposition in the English Court of Appeal in of Re Soul D Harrison & Sons Plc [1995] 1 BCLC 14.
Until the Plaintiff can show to this court that there is a reasonable cause of action against Arachnid, the claim by the Plaintiff against Arachnid is clearly frivolous and vexatious.”

Based on the above finding, it is obvious that the court had struck out the suit agianst the 2nd Defendant in this case.

I am not sure if the Plaintiff made appeal on this decision.

Personal Observation

I personally agree with the decision of the court as the 2nd Defendant is merely a web developer providing technical assistace to the 1st Defendant and who did not involve in monitoring the content of the website. So they cannot be deemed as the “publisher” of the defamatory statement. As it would be rather impossible for the hosting companies to monitor the content of every single blogs / websites of their clients. It is also impossible for the web developer to monitor the web content of all their clients after they have created the website for them, though the web developer does sometime continue to provide web maintenance services to their clients after the websites have been built.

Lets draw an analogy, when an newspaper publishes a defamatory statement written by its contributor, you may hold the newspaper publisher and the contributor liable for defamation but not the paper supplier of the newspaper as you can’t hold the later liable simply because the defematory remark appear on the paper that supplied by the later.

However, if the web developer is engaged to monitor a forum then the finding may be different. The level of involvement and control is a crucial factor for the court to decide one’s liability.

Again, please bear in mind that the fact and circumstances of every case is different and this decision may be overruled / upheld by a higher court in future.

Thank you Cheng Leong for sharing this case with me.

Tags: -==Legal Tips==- · Internet Law · Malaysian Cyber Law

2 responses so far ↓

  • 1 beingMRS // Sep 21, 2009 at 10:50 am

    hi eddie, sometimes it’s pretty scary reading the cases…. am a blogger myself too and at times at forums. thanks for sharing too :)

  • 2 Customer Support Geek // Jun 24, 2010 at 2:30 pm

    As for me, I don’t think the web developer has any fault with the client receiving defamatory remarks because the person was just hired to develop and host. Why not hire another person to maintain and check out those forums, like an admin/moderator, right?

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