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50 Hong Kong L.J. 685 (2020)
The Iron Curtain: Controlling Unreasonable Defamation Immunity Clauses

handle is hein.journals/honkon50 and id is 689 raw text is: THE IRON CURTAIN: CONTROLLING UNREASONABLE DEFAMATION IMMUNITY CLAUSES Neerav Srivastava* Defamation immunity clauses (DICls) are a new phenomenon. If a guest using Airbnb posts a defamatory review of the host, in theory, the host can sue both the guest and Airbnb. But the guest may have returned to another country and be out of reach. Airbnb, like other commercial platforms, contractually immunise themselves against liability by using DICls. This article argues that there needs to be statutory control of unreasonable DICls. Historically actors involved in defamation would not have been in a contractual relationship. If unchecked, DICls may pose an existentialist threat to defamation law as a protector of reputations. 1. The New Paradigm This article examines a new phenomenon used by online commercial platforms1 (CPs): contractual defamation2 immunity clauses (DICls). It argues that unreasonable DICls should be regulated by legislation. CPs are apps that facilitate economic and social activities. They are digital matchmakers that bring providers and users together. Airbnb is one of the most successful CPs and will be used for illustrative purposes in this article. It facilitates short-term lodgings by bringing hosts and guests together. Like many CPs, Airbnb makes use of reputation systems. Reputation systems are peer reviews that are publicly available. In booking with a prospective host, a guest can see how former guests have reviewed the host. If an Airbnb guest publishes a defamatory review of a host, in theory, the host can sue both the guest and Airbnb. Under orthodox BComm (UWA), LLB (Hons) (London), PCLL (City University of Hong Kong), LLM (Hons) (Melbourne), PhD candidate (Monash). I am grateful to Mr Justice Ribeiro PJ of the Court of Final Appeal for reviewing an earlier draft of the article and posing questions for me to explore. He wrote the judgment to Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366. It is one of the most respected judgments on online defamation in the common law world and has been cited in a number of Australian and Hong Kong judgments. I am also grateful to the anonymous reviewer for his helpful and penetrating comments and to Mr Saurabh Mishra BE (Hons) and BComm for his advice on the economic analysis. Also known as digital platform or online platform economies. 2 This article does not consider injurious falsehood.

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