Is Google Subject to the Hong Kong Court's Defamation Jurisdiction?
In Dr Yeung Sau Shing Albert v Google Inc [2014] 5 HKC 375, the
Court of First Instance found that there is a good arguable case that Google is
a publisher of defamatory material by generating defamatory search suggestions
through its search engine to its users and that the Hong Kong courts have
jurisdiction over it.
When the
entertainment tycoon and the internet giant clash in court
In Dr Yeung Sau Shing Albert v Google Inc [2014] 5 HKC 375, the
Plaintiff (Yeung), a Hong Kong businessman most famous for his success in the
entertainment industry, discovered that typing his Chinese and English names in
the search box of the Defendant (Google)’s search engine automatically generated
below the search box a list of search suggestions that associated Yeung with
criminal activities and triad groups (the “Autocomplete”
function). Further, on hitting the search button with his Chinese and English
names in the search box, a list of related search results of similar nature was
displayed at the bottom of the page (the “Related
Search” function). His solicitors wrote to Google and its legal
representatives to demand removal of the defamatory words that the two
functions generated. As Google failed to comply with his request, he initiated
legal proceedings against Google in Hong Kong.
In order for Yeung to commence
proceedings in Hong Kong against the US-based Defendant, he must show, among
other things, that he has a good arguable case against Google that (1) there
was publication of defamatory words by Google to a third party reader; and (2)
Google can be regarded as a publisher of the defamatory words being predictions
or suggestions derived from the completely automated search process.
How Google lost
the battle (for the time being)
Are
the search suggestions publication?
In defamation cases, material is
considered “published” when and where it is comprehended by the reader. Since
Yeung’s IT staff and his solicitors were able to download and print out copies
of the Autocomplete and Related Search results from the Google website, the
court accepted that there may have been publication by Google to third party readers
in Hong Kong. Although the persons that downloaded and printed the material were
connected to Yeung, the court found it to be irrelevant and that they could still
be considered as third party readers. Overall, the court was satisfied that there
was arguably publication of the defamatory material by Google in Hong Kong, which
gave rise to its jurisdiction over the matter.
Is
Google a publisher?
Google argued that it was not a
publisher because no human input was required in generating the Autocomplete
and Related Search suggestions. It argued that it had no control over the automatically
generated results as what results to display is based heavily on the popularity
of the search queries among all Google users. It therefore followed that Google
only acted as a passive medium. However, the court rejected the argument and
applied the “strict publication rule”, meaning whoever takes part in making the
defamatory statement known to others is liable unless the publisher (Google) can
put forward a legitimate defence.
Google’s defence was that it was a
subordinate publisher (like a library or a newsstand) who did not know and
would not reasonably have known in the circumstances that the publication
contained defamatory content. It sounded like a strong argument because,
considering the high volume of information Google dealt with daily, it could
not possibly have known all contents in the publication. However, the argument
fell through after Google was notified by Yeung, through the letters his
solicitors had written to itself and its solicitors, of the existence of the
defamatory search suggestions. Since Google is capable of censoring its
material, and since it chose not to take action within a reasonable time after
being notified of the existence of such search suggestions, it could be argued
that Google should be treated as a main publisher (instead of a subordinate
publisher). As such, it is arguable that Google’s defence will not be accepted
by the court.
The court also found a good arguable
case that Google intends to be a publisher of the defamatory words. By how the
search engine works, it is arguable that Google intends to publish anything its
automated system produced. As the Autocomplete and Related Search suggestions
are results of multiple factors set by Google through the algorithms it
designed, revised and improved, the system functions the way Google intends it
to and may not be argued that it merely conveyed information neutrally or acted
as a passive facilitator.
The
court’s decision
Considering all circumstances of the
case, the court found that Yeung has a good arguable case against Google that (1)
Google was a publisher; and (2) there was publication by virtue of the search
engine’s Autocomplete and Related Search functions. Combined with the large
scale of defamatory publication from the search suggestions and the likely
substantial damage to Yeung’s reputation due to such publication, the court
confirmed that Yeung should be allowed to continue the proceedings against
Google in the Hong Kong court.
It should be noted that the court’s decision here is only a preliminary one on jurisdiction (not a substantive finding that Google was liable for defamation) and Google had already filed an appeal against the decision. The judge recognised the complexity and novelty of the issues and granted leave to Google to appeal her decision. Further elaboration of the law must await the ruling of the Court of Appeal and the eventual trial of the action.
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Important: The law and procedure on
this subject are very specialised and
complicated. This article is just a very general outline for reference and
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Published by ONC Lawyers © 2014 |