Comparison between Different Countries

HK
At common law, a defence of innocent dissemination is provided in section 25 of the DO. Like the other jurisdictions, a defence is available for a person who is not the author, printer or publisher of the defamatory statement. This defence has been made available to parties, such as postmen, posters who deliver the statement as part of their jobs, or booksellers, librarians and news stand owners who disribute materials without negligence and without knowing their contents.

Unlike the UK's Defamation Act 1996, the DO does not have a specific defence for a party, such as an ISP, who is involved in electronic publications. In Hong Kong, the only protection for ISPs for "unintentional defamation" is provided by section 25 of the DO. Secton 25(1) of the DO provides that a person who has published words that are alleged to be defamatory may make an offer of amends if the ISP claims that the words were innocently published.

In dealing with the issue of innocent dissemination, there is a question - whether the publisher has exercised all reasonable care, to be asked. It should not be reasonable to expect an ISP to review all the content of all the websites to which it provides access, so that issue is more open for the Hong Kong court to decide what constitutes "reasonable care" in any particular circumstances. And the decisions in other jurisdictions will be one relevant source to provide some guidance.

China
In China, the liability of online defamation is not specifically defined. Though the Article 15 in the "Administrative Measures on Internet Information Services" (PRC, 2000) adopted in 2000 states that ISP shall not "produce, duplicate, release or disseminate information that contains content that insults or defames others or infringes upon the lawful rights and interests of others" (PRC, 2000), it has not been clarified that whether the ISP is liable to the allegedly defamatory contents created by its clients. The awareness concerning this issue is not high enough in China and there are not many online defamation cases that can be served as examples. Many plaintiffs did not sue the ISP neither did they require the ISP to take remedial actions. For instance, in the case of MAX Computer Station, Inc. (MAX) vs. Wang, MAX only charged Wang but did not take any legal actions to the ISP that hosted Wang's website. In the case of owner representatives of Beautiful Garden vs. www.sinoi.com, it was demonstrated that the liability of the ISP was not clarified by any specific law but by the definition and explanation of the court. In the midst of speedy Internet growth in China, a more detailed guideline and regulation is needed.