Academic journal article Nottingham Law Journal

Innocent Dissemination: The Type of Knowledge Concerned

Academic journal article Nottingham Law Journal

Innocent Dissemination: The Type of Knowledge Concerned

Article excerpt

Chau Hoi Shuen, Solina Holly v SEEC Media Group Limited

18 December 2015 (HKCFA)

(Ma CJ, Ribeiro, Tang and Fok PJJ and Mapesbury NPJ)


In an action for defamation, a subordinate publisher with no knowledge of the libel in the work can rely on the defence of innocent dissemination. At present, Vizetelly v Mudie's Select Library Ltd (1) remains the century-old authority. Romer LJ's seminal judgment clarified that the relevant knowledge can arise in three means, i.e. actual knowledge, something in the work or surrounding circumstances that raise a suspicion of libel, or the subordinate publisher's negligence that caused his lack of knowledge. But what about the content of the relevant knowledge, i.e. what is meant by the word libel? Does it mean the statement itself, its defamatory character, or an actionable libel to which there is no valid defence (e.g. justification, honest comment, privilege or Reynolds defence)? As far as the UK position is concerned, it remains unsettled as to whether a subordinate publisher, who has knowledge of the defamatory material but believes that a valid defence exists, can plead innocent dissemination. (2) This view is supported by Lord Denning in Goldsmith v Sperrings, who stated that "no subordinate distributor ... should be held liable for a libel contained in it unless he knew or ought to have known that the newspaper or periodical ... contained a libel on the plaintiff which could not be justified or excused". (3) Yet Bridge LJ in the same case did not support this view and held that a subordinate publisher relying on the defence of innocent dissemination must "show that he did not in fact know that the publication contained defamatory matter" (4). While neither of their Lordships gave reason for this distinction, Eady J in Metropolitan International Schools Ltd v Designtechnica Corp (5) considered why Bridge LJ's view should prevail. In Eady J's view, Lord Denning's proposal is problematic: how could the defendant knew that a defence was bound to fail, save in the simplest of cases? How much legal knowledge is to be attributed to the defendant? (6) All of the above views, however, are merely obiter, and the proposal is still arguably open to a defendant in an action for defamation. In contrast, the Hong Kong Court of Final Appeal has now firmly rejected this view and narrowed down the scope of the common law defence of innocent dissemination.


In Chau Hoi Shuen, Solina Holly v SEEC Media Group Limited (7), two articles in a magazine contained statements defamatory of the claimant. The magazine's cover page contained words which resembled the defamatory content. The defendant company's business was to deliver printed copies of the magazine to subscribers, but it did not deliver by itself. Instead, it gave address labels and labelled envelopes to a courier company who would take the copies to be dispatched from the printer directly. The defendant only received the left-over copies two to three days after the bulk has been dispatched. The main issue was "the nature of the knowledge possessed [or would have been acquired upon taking reasonable care] which suffices to exclude such secondary publisher from relying on the defence of innocent dissemination" (8).

Fok PJ delivered the only reasoned judgment. His Lordship distinguished between three types of knowledge: (a) Type A knowledge is the knowledge of the gist of content; (b) Type B knowledge is Type A knowledge plus the knowledge that the content is defamatory; and (c) Type C knowledge is Type B knowledge plus the knowledge that there is no valid defence against an action for defamation thereupon. These categories represent subtle yet crucial differences. The Court decided that Type C knowledge is not required. In other words, for the purpose of the defence of innocent dissemination, the defendant's belief that there is a valid defence to an actionable libel does not matter. …

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