WILMap: Hong Kong


LEGISLATION

[There is currently no specific legislation on the issue of intermediary liability, however bills and proposals are pending before the Legislative Council of Hong Kong (see below).]

BILLS AND PENDING PROPOSALS

 
[(1) Establishing a statutory ‘safe harbour’ for OSPs so that their liabilities for copyright infringement occurring on their service platforms could be limited, provided that OSPs meet certain prescribed conditions, including the taking of reasonable steps to limit or stop copyright infringement when being notified.
 
(2) The proposal aims at facilitating OSPs’ handling of alleged infringement balancing the interests between copyright owners and users. Under the proposed ‘safe harbour’ provisions, OSPs’ liabilities for copyright infringement occurring on their service platforms could be limited provided that they meet certain prescribed conditions, including the taking of reasonable steps to limit or stop copyright infringement when being notified.
 
(3) The ‘safe harbour’ will be underpinned by a Code of Practice which sets out practical guidelines and procedures for OSPs to follow upon notification of infringement such as "notice-and-notice" and "notice-and-takedown". The proposal aims at facilitating OSPs’ handling of alleged infringements balancing the interests between copyright owners and users.] [See Stanford CIS blog post]
 
Consultation on Draft Code of Practice for the reference of Online Service Providers (8 August 2011 to 9 September 2011)
 
[When HK government introduced the 2011 Copyright (Amendment) Bill into the Legislative Council, it also brought into sight the statutory ‘safe harbour’ for OSPs so as to protect their potential liability for copyright infringement on their platforms with a non-statutory Code of Practice that sets out the procedures for copyright owners to serve notices of alleged infringement and for subscribers to serve counter notices, the draft was finalized in 2012:
 
(a) Instead of setting a specific time frame within which OSPs must take action to limit and stop a particular infringement, the revised draft Code requires OSPs to act as soon as practicable;
 
(b) In view of the privacy concerns raised by some respondents, HK has made changes under which a subscriber may choose to request the OSP not to disclose his personal data when sending a copy of the subscriber's counter notice to the complainant;
 
(c) OSPs will be required to keep records of the notices of alleged infringement and counter notices received for a period of 18 months. Such records are required for law enforcement purposes; and
 
(d) Both the complainants and subscribers will be required to provide more information to substantiate their infringement claims and counter claims respectively. This is to facilitate the resolution of disputes in a quicker and more cost-effective manner.]

DECISIONS

Superior Courts

Court of Final Appeals, Oriental Press Group Ltd. v. Fevaworks Solutions Ltd, HKCFA 47, 2013
[OSPs, defamation]
 
[Holding online intermediaries of discussion forums as secondary publishers with liabilities imposed from outset, who also have the duties to monitor and take active actions when noticed of defamatory activities on their platform. Defendants were administrators, providers and managers of a website that hosted one of most popular Internet discussion forums in Hong Kong, known as the Golden Forum. Plaintiffs were publishers of the Oriental Press Groups, one of the most popular local newspapers. Three entries were posted in the defendants’ forum accusing plaintiffs dealing with money laundering, drug trafficking and bribery, etc. Defendants removed two entries with due notice but the last one was removed eight months after being informed. Lower court held the forum for not having duly removed this entry without reasonable delay. Defamation Ordinance of Hong Kong does not cover ISPs liabilities issues, so the Court relied on common law secondary liabilities and found the forum liable for the alleged delay. The Court limited the OSPs’ liability as secondary or subordinate publisher in the way of its limited manpower to monitor and control the discussion, but it also argued that the defendants should promptly take all reasonable steps to remove the offending content from their platform as soon as it becomes reasonably practicable after notice.]

OTHER RESOURCES

Intellectual Property Department of Hong Kong Special Administrative Region http://www.ipd.gov.hk/eng/pub_press/publications/hk.htm

CONTRIBUTORS

Bolin Zhang
University of Arizona
Email address: bolin at email.arizona.edu

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