Professional Documents
Culture Documents
HCA 1383/2012
B
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BETWEEN
Plaintiff
and
H
GOOGLE INC
Defendant
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J
K
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-----------------------DECISION
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Index
Page
I.
Introduction
II.
Summons
III. Issues
10
V.
15
15
22
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- 2 A
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69
(d) Summary
77
77
77
85
89
96
99
(f)
99
Summary
IX. Conclusion
59
(b) Facts
24
(a) Law
100
our lives more comfortable and easier. The worldwide web (internet) is a
remarkable example of this development, and googling has become a
popular mode of informing gathering. But such usage can result in both
comfort and danger.
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I. INTRODUCTION
1.
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- 3 A
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2.
The
plaintiff
(Yeung)
is
businessman
and
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F
3.
Such services include internet search facilities through the use of their
internet search engine known as Google Search (Google Search).
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domains owned by Google Inc into a web browser. Google Inc is the
owner, provider, administrator and manager of the domains/websites at
www.google.com.hk,
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www.google.com.tw
and
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www.google.com
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top level domain Google Inc uses for their services in the United States,
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and the .com.hk and .com.tw Websites that are the country code top level
domains for services provided by them in Hong Kong and Taiwan
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respectively.
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4.
(a)
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- 4 A
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generated
albert yeung
triad
and
albert
(b)
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, , 14k,
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2
translated as Yeung Sau Shing Triad, Yeung Sau Shing Perverted and
Yeung Sau Shing Sun Yee On
translated as Yeung Sau Shing Triad, Yeung Sau Shing 10 Sins,
Yeung Sau Shing Sun Yee On, Yeung Sau Shing 14k, Yeung Sau Shing
covered story and Joey Yung Yeung Sau Shing covered story
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- 5 A
B
5.
nd
rd
th
and concerning him during the period from 23 to 28 May 2012. For
convenience, in this Decision I shall refer to the three search queries/terms
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Keywords.
6.
G
H
st
Letter), Yeungs
solicitors (ILL) (a) notified Google Inc of the presence of the Words
published on the Websites, (b) claimed that although Google Incs
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demanded
Inc
to
remove/prevent
the
Words
from
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st
the Keywords. Yeung claims that by reason of the 1 Letter Google Inc
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knew or ought to have known of the presence of the Words on the Websites
at least from 28 May 2012.
7.
(former solicitors for Google Inc in previous litigation between Yeung and
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the autocompletions upon typing the Keywords in the Search Box of the
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3
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- 6 A
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Websites, and to enquire whether they had instructions to act in the matter
nd
nd
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8.
nd
2 Letters Google Inc has failed to take down the Words and has continued
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H
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9.
Google Inc (WoS) for inter alia damages for libel in respect of the
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publication of the Words that are defamatory of and concerning him in the
manner set out in paragraph 4 above during the Period and continuing, and
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(a)
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S
(b)
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- 7 A
otherwise serious;
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(c)
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11.
leave to serve the WoS on Google Inc out of jurisdiction in the United
States pursuant to Order 11 rule 1(1)(f) of the Rules of the High Court
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12.
On
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13.
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On
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- 8 A
B
14.
Order 12 rule 8 of the RHC and/or the inherent jurisdiction of the court for
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(b)
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an order that (i) the CWoS and Leave Order be set aside or
discharged, (ii) service of the CWoS on Google Inc be set
aside, and (iii) all subsequent proceedings in the present
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action be stayed.
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15.
As set out in the Summons, the grounds that Google Inc relies
are (a) the High Court of Hong Kong does not have personal jurisdiction
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over them, (b) there is no good arguable case that Yeungs claim falls
within Order 11 rule 1(1)(f) of the RHC, and (c) there is no serious issue to
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be tried on the merits of Yeungs case. Google Inc also relies on matters
N
O
further set out in the affidavit of their solicitor Robert George Clark
(Clark) filed on 24 December 2012 (Clark 1st Aff).
There is an
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1st Aff, but Clark makes an express complaint in his affidavit in reply filed
on 17 April 2013 (Clark 2nd Aff).
16.
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nd
- 9 A
B
17.
For the purpose of the Summons, Google Inc does not take
III. ISSUES
18.
is based on Order 11 rule 1(1)(f) of the RHC. The Hom 1 Aff contends
that Yeungs claim is founded on the tort of defamation, and either the
damage has been sustained within this jurisdiction or the damage has
resulted from an act committed within the jurisdiction.
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19.
The Hom 1st Aff states that as a matter of law the material part
of the cause of action in libel is the publication of the libel, and in order to
constitute publication the matter must be published to a third party. It goes
on to say the tort is committed at the place where the publication is
received by the reader or viewer, and in relation to electronic publication, it
takes place where a person downloads the material and not where the
material was uploaded.6
20.
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principles are prima facie uncontroversial, but suggests that Yeung has
He submits there is no evidence of
the Hom 1st Aff draws attention to Gatley on Libel and Slander 11th ed para 6.1 at
pp 187-189 and Emperor (China Concept) Investments Ltd v SBI E-2 Capital
Securities Limited & anor HCA2686/2004 (unreported, 10 January 2006) para 16
(see also Oriental Press Group Ltd & anor v Fevaworks Solutions Lted [2013] 5
HKC 253, 277 at para 68)
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- 10 A
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Yeungs claim falling within Order 11 rule 1(1)(f) of the RHC, and no
serious question to be tried on the merits to enable the court to exercise its
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Order.
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21.
Google Inc as a search engine is liable for failing to take down the
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such Words on the Websites. Mr Ng disagrees there has been any material
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question to be tried.
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- 11 A
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23.
can visit it without using a search engine. But to find information that is
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task.
24.
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construction systems that crawl the web and index the webpages. Its web
crawling bot or spider is called Googlebot. As Googlebot crawls the
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that of a large book) of all the words it sees and their locations on each
webpage. New sites, changes to existing sites and dead links are noted,
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and the new and updated data is added to the index. Googlebot uses
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content can take steps to do so, including using robots.txt to block access
to files and directories on their servers.
25.
following information flow occurs: (a) the user inputs a search query by
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typing the desired search term(s)/keyword(s) into the web browser, (b)
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Google Search displays or serves the results to the query, and (c) the user
receives the content.
26.
Box and clicks the search button, then Google Search begins the search
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- 12 A
B
index and find matching webpages to return results that contain or are
relevant to the term(s)/keyword(s) entered by the user. This is akin to a
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librarian looking through the index cards of the library trying to identify
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relevant books for a library user who wishes to read books on a particular
topic, but a google search does so electronically on a gargantuan scale.
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F
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search query.
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27.
signals to determine which of the webpages out of the many are most
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factors include how often the search terms occur on the page, if they
appear in the title or whether synonyms of the search term(s) occur on the
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page. Google Inc touts the outcome of its crawl and search relevancy
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algorithms as presenting the most relevant search results towards the top
of the page, and the less relevant search lower down the page.
28.
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information quickly. As the user types his search query in the Search Box,
Google Search begins to offer predictive suggestions or keyword
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- 13 A
B
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suggestions for the user to choose, and the predictive suggestions change
on each additional keystroke as the user types in the Search Box.
29.
tool that helps the user to quickly look for results similar to his search
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E
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for. When a user types search term(s)/keyword(s) in the Search Box, the
Related Searches feature displays popular refinements that are commonly
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associated with the original search query and/or are slightly more detailed
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so the user can narrow down his search. The search options generated by
the Related Searches feature are displayed at the bottom of the search
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outcome/results page, and the user can click/select any of the variations so
K
30.
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reflect past search activity of all google search web users (which in turn
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reflect the popularity and volume of the search queries they have
previously typed) and the content of the webpages indexed by Google
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Search. It is the previous search activity and web content that drive the
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suggestions.
31.
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- 14 A
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over time, and internet content changes with new webpages being
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introduced and old webpages being edited or taken down. A user typing
McDonalds in the Search Box may throw up McDonalds hamburger
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internet protocol (IP) addresses to type the desired search query into
G
32.
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For the purpose of the Summons, Yeung does not dispute the
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to (a) compare search queries with Googlebots index, (b) decide the
relative importance of webpage ranking, and (c) reconstitute web content
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and aggregate previous search activity, Google Inc intended and in this
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sense has control over the Autocomplete and Relates Searches results that
appear on the Websites, and is therefore a publisher of such results.
34.
Q
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- 15 A
B
C
B
C
(a)
D
E
of the RHC;
F
(b)
G
(c)
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36.
N
O
published the Words to a third party publishee. I shall deal with the latter
P
question first.
37.
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- 16 A
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uploaded onto the internet) provided that the claimant has a reputation
his action.8 Thus, an internet publisher who places material on the internet
will be responsible for the effects of his action whenever the damage
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occurs.
E
38.
Here, the Hom 1st Aff confirms that when the 1st Letter was
was able to download and print the Words from the Websites, and further
contends that such users are plainly different from Yeung. Further, when
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H
st
there was no response to the 1 Letter and Google Inc still did not remove
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the Words from the Websites, ILL downloaded the Words from the
Websites on 6 August 2012 before issuing the WoS on the same day.
39.
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third party user conducting a search using the Keywords and giving
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published. Since the users from the IT Dept and/or ILL are persons
employed by or tasked by [Yeung] to deliberately search, find and
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8
see Dow Jones & Co Inc v Gutnick (2002) 194 ALR 433 cited in Emperor (China
Concept) Investments Ltd para 16 and Godfrey v Demon Internet Ltd [2001]
QB 201, 208-209
- 17 A
B
40.
Mr McCoy SC submits that for well over 150 years since The
Duke of Brunswick v Harmer, the common law has turned its face away
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F
st
disclosure.
41.
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held that:
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- 18 A
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42.
10
Pullman v Walter Hill & Co Ltd cited with approval in Godfrey v Demon
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Internet Ltd:11
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F
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43.
K
Co Inc13 held that where the plaintiff procures publication to his agent or
servant for the purpose of defamation proceedings, as in the present case, it
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observations:
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11
13
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10
12
see also Collins on Defamation (2014) para 4.04 at p 70 and Gatley on Libel and
Slander 12th ed (2013) para 6.15 at pp 207-208
[2005] QB 946
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- 19 A
B
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B
C
D
G
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E
F
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44.
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N
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As
J
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- 20 A
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the issue of Jameel abuse of process, but suffice to state here that this case
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E
C
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E
F
Publishing Ltd & ors,15 Oriental Press Group Ltd v Next Magazine
Publishing Ltd & ors (No 2)16 and Oriental Press Group Ltd v Next
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17
Magazine Publishing Ltd & ors that the particular person chosen by the
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plaintiff as the reader of the impugned article and as the person with
specific knowledge of additional facts that would give rise to an inneuendo
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meaning could not be regarded as a member of the public in the true sense
K
46.
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N
in the above paragraph concern a wholly different context. In that case, the
plaintiff pleaded its defamation claim in the alternative by relying on the
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natural and ordinary meaning of the impugned article within the general
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plea of true or legal innuendo, has two principal consequences: (a) the
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plaintiff must not only identify in its particulars of claim the defamatory
meaning which it contends the words convey but also identify the relevant
14
15
16
17
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- 21 A
B
extrinsic facts and prove those facts were known to at least one of the
persons to whom the words were published, and (b) the meaning resulting
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D
from those facts gives rise to a cause of action separate from that (if any)
arising from the words in their ordinary and natural meaning because it is
an extended meaning not present in the words themselves.
18
knowledge that are within the knowledge of the persons to whom the
E
F
19
G
H
Hence, the
extended innuendo meaning must arise from facts passing beyond general
words were published.
47.
Oriental Daily News, who was an employee of the plaintiff for many years
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an ordinary member of the public, still less within any class of ordinary
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readers of Next Magazine to whom the article was published. But I cannot
see how the magazines readership relevant for ascertaining the meaning
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and innuendo of the alleged defamatory material has any bearing on the
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question of whether or not there is any act of publication that does not
depend on any targeted readership but simply on any person other than the
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48.
downloading and printing the Words from the Websites by users at the IT
Q
Dept and ILL constitute publication of the Words to third party publishees.
18
19
- 22 A
B
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D
E
unarguable.
G
H
I
50.
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google search is made, which is what such systems are designed to do.
Mr Ng says that when the Words on the Websites are viewed or
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K
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(ie the Websites) without their approval or encouragement such that they
N
O
P
Q
the courts in common law jurisdictions have consistently held that liability
will be established against an internet service provider (ISP) or search
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P
Q
engine if, after having been notified of the presence of defamatory material
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S
nd
20
- 23 A
B
has brought home to Google Inc the presence of the Words on the Websites
as well as Yeungs complaint about them, and the google search by ILL
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E
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F
G
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seek the Leave Order on a novel point by stretching existing case law on
the general liability for libel in respect of search engines. He urges the
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Yeungs contentions.
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54.
new challenge to the orthodox legal framework for libel actions, but it is
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equally true that the success of the common law derives from the fact that
it is responsive to change. As Sir James Munby P said in Re J (A Child)
(albeit not in a libel context):
21
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21
[2013] EWHC 2694 (5 September 2013) para 43 cited in Gatley para 6.29
(footnote 250) at p 227
- 24 A
B
C
D
E
55.
not there is a good arguable case that Google Inc is a publisher of the
Words on the Websites. This is a matter of mixed fact and law,22 and I
shall start by turning first to the law.
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E
F
G
56.
H
that for the purpose of the Summons they will not rely on authorities from
the civil law jurisdictions and from Japan cited in their written
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submissions.
J
(a) Law
57.
the creation of the libel but in its publication. Ribeiro PJ in Oriental Press
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N
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22
23
see Trkulja v Google Inc LLC & anor [2012] VSC 533 (12 November 2012)
para 18
[2013] 5 HKC 253, 262-263 at paras 18-19
- 25 A
B
C
D
(who is originator of
(who
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D
accepts/prepares it for publication), the printer (who sets the type and
E
prints it), the wholesale distributor (who disseminates it), the newsagents
(who sell it to the readers), and the newspapers proprietor (who published
it through its employees or agents) are all liable.
24
G
H
58.
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the defamatory content and cannot, with reasonable care, have discovered
M
it.25
59.
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26
that mitigates the harshness of the strict publication rule must be contrasted
with the common law principles derived from Bryne v Deane27 concerning
24
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25
p 264 at para 23
Fevaworks Solutions Ltd pp 266 and 283 at paras 29 and 90
26
p 273 at para 56
27
[1937] 1 KB 818
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- 26 A
B
C
D
participated in the publication of the libel and are not publishers of the
E
libel. But failure to remove defamatory material from the property within
the control of such owner(s) or occupier(s) can in some circumstances
E
F
make them responsible for publication of the statement. Thus, the Bryne
G
H
60.
28
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Someone
reported to the police and afterwards a poem was posted in the club
implying that the plaintiff was the informant. On appeal, it was held that
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the two defendants are lessees of the club and they are the
occupiers of the club premises, and the walls are their walls, and
in my judgment they allowed a defamatory statement to be put
up on their walls and to remain on their walls in a position in
which it could be read by anybody who came to the club.
In my judgment the two proprietors of this establishment by
allowing the defamatory statement, if it be defamatory, to rest
upon their wall and not to remove it, with the knowledge that
they must have had that by not removing it it would be read by
people to whom it would convey such meaning as it had, were
taking part in the publication of it.
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Q
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830 said:
Greene LJ agreed and posited that the defendants should be liable if having
N
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S
regard to all the facts of the case the proper inference was that by not
T
28
- 27 A
B
C
D
29
C
D
thought only the secretary had published the defamation by adopting the
E
61.
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H
G
H
control of the Urban Transport Authority. The face of one of the persons
was identified as the plaintiff, and the accompanying text allegedly
contained defamatory imputations.
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attention to the posters and asked for their removal, but they remained in
place for another month. Relying on Bryne, Hunt J held the Authority was
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29
at pp 837-838
30
at pp 834-835
31
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- 28 A
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the defendant had a reasonable period after the notification to take down
C
D
C
D
G
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62.
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(c) Where the occupier becomes aware of the libel but the
circumstances show that removal or obliteration is very difficult
or very expensive, the fact that the defamatory statement is not
expunged may well not justify the inference that it remains in
place with his approval.
M
N
M
N
63.
P
Q
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T
G
H
33
33
This
32
R
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- 29 A
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Since internet
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F
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adopted in Tamiz v Google Inc35 and Wishart v Murray & ors,36 which
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as the defendants before him) that encourage and facilitate publication falls
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within the concept of a publisher under the strict publication rule, and it
is for them to raise the defence of innocent dissemination (ie they have no
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actual knowledge of the alleged libel, are not aware of circumstances that
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give cause to suspect a libel, and are not negligent in failing to discover the
libel) if they can.37
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T
34
35
36
37
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- 30 A
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65.
C
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publisher.
(b)
E
F
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H
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distributor.39
S
38
39
- 31 A
C
D
G
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66.
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G
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respond to topics on the forum, but all posts could be read by the public on
the website. Certain forum members posted anonymous messages which
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suggested the plaintiffs were involved in crimes and triad activities. The
K
L
M
N
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neither knew nor was it reasonable to expect them to know of the libellous
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were notified, they took all reasonable steps to remove the offending
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40
41
42
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- 32 A
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67.
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E
F
44
not knowledge of the content of the article being published, but rather an
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G
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68.
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because the case law from other common law jurisdictions must now be
viewed through the prism of such distinction drawn in Fevaworks
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69.
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43
44
45
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- 33 A
B
transmitted, but it chose to receive and store the newsgroup containing the
requests. In other words, the defendant was not a mere conduit for it
hosted and transmitted offending material, which it could delete if it
chose.
C
D
46
70.
law was strict and therefore the ISPs could be treated as publishers of
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H
defamatory material stored on their servers even though they were ignorant
of their existence.
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H
establish (and the onus was on them) the defence of, say, innocent
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71.
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forum. He alleged that Mr Tilley (a) posted a thread on the website that
Q
disparaged his products and (b) with two others made defamatory
46
47
48
[2002] QB 783
49
50
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- 34 A
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73.
E
F
anyone under the common law for the publication of words it is essential
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53
O
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strict publication rule is a main publisher. The plaintiffs in that case argued
that so long as the defendants knew they were hosting and making
51
at p 1249
52
at p 1252
53
see Oriental Press Group Ltd v Fevaworks Solutions Ltd [2012] 1 HKLRD 850,
870
Q
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T
- 35 A
B
C
D
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F
whether the provider realised that such content was in law defamatory.55
75.
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56
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defence.57 This does not address the antecedent question of whether or not
the provider qualifies as a publisher, and Bunt must be read in such context
in this jurisdiction.
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as subordinate publishers. It has been said to be the law that the mere
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55
56
57
58
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- 36 A
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76.
59
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60
G
H
77.
E
F
G
H
I
J
It was held that providing hyperlinks did not amount to publication of the
K
L
linked article, and the majority emphasised that the author who created the
hyperlink did not control the secondary articles content or publication. N
K
L
therefore had not published any defamatory material, and Cs action could
M
not succeed.
78.
O
P
O
P
strict publication rule had been tempered by cases (eg Bunt and
Q
R
Q
R
59
60
61
S
T
- 37 A
B
reference and which gives the author no control over the content of the
C
D
linked secondary article) to defamatory material is not the type of act that
constitutes publication. It was said that hyperlinks only communicate that
C
D
especially when some further act by a third party is required before the
content can be accessed.
G
H
79.
E
F
G
H
I
J
hyperlinks was not appropriate and relied on the passivity rule (as
K
L
M
N
K
L
M
N
O
P
62
were such. In my view, any reliance on the passivity rule (as explained
Q
R
Q
R
S
T
- 38 A
B
is interesting to note that Gatley says the better view may be that internet
C
D
C
D
H
I
J
K
M
N
O
P
Q
R
S
T
64
81.
63
64
65
H
I
J
K
L
M
N
O
P
Q
R
S
T
- 39 A
B
where the link repeats the defamatory sting conveyed by the underlying
82.
E
F
notice board, and concluded that Google Inc had the ability to take the
G
H
I
J
notices down if they are pointed out to it (ie liability was dependent
K
L
K
L
68
O
P
69
M
N
O
P
and at some point after notification it would become liable for continued
Q
R
S
T
Q
66
67
at p 116
68
69
R
S
T
- 40 A
B
C
D
70
84.
E
F
the complaint fixed Google Inc with actual knowledge of unlawful activity
G
H
or information in that case since Google Inc was not in the position to
adjudicate on the conflicting claims from the claimant and the 2nd
71
defendant.
I
J
G
H
I
J
72
85.
Davison which conflated the Bryne principle and the defence of innocent
M
N
M
N
Inc was more than a mere facilitator playing a passive instrumental role
O
P
O
P
R
S
T
Q
R
70
at p 119
71
at p 125
72
at p 125
73
S
T
- 41 A
B
86.
C
D
about the comments and after some delay Google Inc contacted the author
E
of the blog who voluntarily removed it. The claim concerned comments
published after Google Inc was notified of the comments but prior to their
E
F
removal. Eady J set aside service of the claim form out of jurisdiction, and
G
H
in reaching that decision he found Google Inc was not the publisher of
three of the comments which were arguably defamatory, and the period
G
H
between notification and removal was so short and any potential liability
I
J
I
J
for Google Inc to exercise editorial control over the content of the blogs it
K
L
M
N
hosted which in the aggregate contained more than half a trillion words,
with 250,000 new words added every minute.75
87.
K
L
M
N
Eady J fell into any fundamental error of analysis or reached the wrong
O
P
O
P
S
T
74
75
at p 315
76
at p 317
S
T
- 42 A
B
complaint,77 but they fell within the scope of Bryne v Deane78 after
D
E
34. Those features bring the case in my view within the scope of
the reasoning in Bryne v Deane. Thus, if Google Inc allows
defamatory material to remain on a Blogger blog after it has been
notified of the presence of that material, it might be inferred to
have associated with, or to have made itself responsible for, the
continued presence of that material on the blog and thereby to
have become a publisher of that material.
H
I
J
36. The period during which Google Inc might fall to be treated
on that basis as a publisher of the defamatory comments would
be a very short one, but that means that the claim cannot in my
view be dismissed on the ground that Google Inc was clearly not
a publisher of the comments at all. (my emphasis)
K
L
M
88.
D
E
F
G
H
I
J
K
L
M
facilitated publication of the blog and its comments, hence the effect of
N
O
Tamiz is to sweep away the strict publication rule under common law
certainly so far as concerns internet publications in the English
N
O
jurisdiction, which view has been rejected by the Court of Final Appeal in
P
Q
P
Q
R
77
S
T
78
at p 318
which held that by not removing defamatory material from a notice board after
notification it might be inferred that an individual had associated himself with, or
made himself responsible for its continued presence, thereby becoming publisher of
that material
S
T
- 43 A
B
material, and such website operator/host was liable unless it could bring
show that it neither knew nor ought to have been aware of the content of
the material.79
89.
explained above) as developed in Bunt, and says that the facts of Tamiz
C
D
E
F
(which concerned a blog platform host who would more fairly be expected
G
H
G
H
users).
concerned with internet search engine operator, he submits Bunt must now
I
J
K
L
90.
and they made defamatory comments against one of the authors. One of
the defendants monitored and moderated postings on the Facebook page
O
P
see Gatley para 6.29 at p 226 in which the editors consider this view to be correct
and more consistent with authority
80
81
Q
R
S
T
- 44 A
B
which gave him the power to control the content published, and since the
C
D
C
D
anonymous users (a) if they knew of the defamatory postings and failed to
E
remove them within a reasonable amount of time or (b) if they were not
aware of the defamatory postings but based on the circumstances they
E
F
G
H
82
91.
Facebook page created by the host, which bears no rational analogy with a
search engine operator as it is possible and indeed practicable for the
K
L
M
N
Q
R
S
T
82
at paras 116-117
83
84
O
P
Q
R
S
T
- 45 A
B
C
D
92.
This was
B
C
D
E
F
internet search under the claimants name using Google Incs search
engine. Eady J found the internet search was performed automatically by
G
H
I
J
compiling the catalogue on the basis that liability attached for repeating a
K
libel. He also found Google Inc played no role in formulating the search
- 46 A
B
C
terms and could not prevent the snippets from appearing in response to the
users search request unless some positive steps had been taken in advance,
B
C
D
E
93.
The next question in that case was whether the legal position
became different once Google Inc was informed of the defamatory content
H
I
H
I
J
K
future users, and if a future search result throws up the impugned words, it
L
M
does not follow that Google Inc has authorised or acquiesced in that
process.86 Whilst Google Inc was able to (and eventually did) prevent
L
M
which had been identified to them by the claimant, it was not technically
able to put in place a more effective block on the impugned words without
at the same time disabling access to a huge amount of other material. So
even if Google Incs notice and take down procedure had not operated as
rapidly as it should, they did not become liable as a publisher of the
offending material, whether on the basis of authorisation, approval or
acquiescence, in the period between notification and removal.87
85
at p 1757
86
at p 1758
87
at 1758
N
O
P
Q
R
S
T
- 47 A
B
94.
In
Fevaworks
Solutions
Ltd,
Ribeiro PJ
discussed
C
D
content.
E
F
G
H
J
K
L
M
N
O
P
Q
R
- 48 A
B
95.
C
D
E
F
G
H
I
J
96.
taken a different approach. But before I turn to such cases, I should briefly
M
N
M
N
would be liable for the publication of a search engine snippet. In that case,
the claimant brought libel proceedings against the defendant for three
O
P
respect of a snippet extracted from the second article which appeared with
the hyperlink to it when a google search was done on the claimants
Q
R
name. It was held that the second article did not bear the meaning alleged
S
T
S
T
- 49 A
B
the service engine operator could not be held liable for the snippet), but
C
D
rejected the claimants argument that it must therefore follow that the
defendant would be liable. He concluded that liability for publication
could not accrue by default,
89
C
D
E
F
G
H
97.
91
jurisdictions. In Trkulja v Yahoo! Inc LLC & anor, the plaintiff claimed
K
L
that a yahoo search using his name returned results (article and images)
that associated him with organised crime and criminal figures, which he
K
L
subject to the plaintiff establishing at trial that any person had downloaded
and read the matter using the Yahoo! 7 internet search engine, they
M
N
admitted they published the matter to such person. The plaintiff called two
O
P
witnesses at trial to give evidence that they had downloaded and read the
article using the defendants internet search service.
The defendants
O
P
S
T
89
at para 73
90
at para 74
91
S
T
- 50 A
B
98.
In Trkulja v Google Inc LLC & anor (No 5),92 the same
plaintiff in Trkulja v Yahoo! Inc LLC & anor claimed that a google
C
D
search using his name returned similar results as the yahoo search. He
complained to Google Inc, but they declined to take down the results. The
C
D
jury found Google Inc was a publisher but an innocent disseminator until
E
E
F
Google Inc applied for judgment on the argument that as a matter of law 93
it was not a publisher since it had not consented to, or approved of, or
G
H
I
J
K
L
held responsible for the defamatory material was satisfied, and on such
M
N
M
N
99.
Q
R
92
93
94
at para 15
S
T
- 51 A
B
C
D
E
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
- 52 A
B
C
D
E
G
H
I
J
K
L
M
N
O
P
Q
R
S
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
- 53 A
C
D
E
30. Google Inc goes further and asserts that even with
notice, it is not capable of being liable as a publisher because no
proper inference about Google Inc adopting or accepting
responsibility complained of can ever be drawn from Google
Incs conduct in operating a search engine.
G
H
I
J
K
L
M
N
100.
B
C
D
E
F
G
H
I
J
K
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N
O
P
instructed jury. Mr McCoy SC submits that in any event Beach J has put
the proposition too broadly, and he urges me to uphold the passivity
Q
R
Google Inc LLC on the basis that it concerned images rather than
- 54 A
B
101.
95
E
F
hyperlink to the United States website with snippets extracted from such
G
H
G
H
The defendant applied for summary judgment and to strike out the claim
on various grounds, including the argument that a search engine provider
I
J
was not responsible under the law of defamation for the words appearing
K
L
in automated search results. The court reviewed the earlier authorities, and
concluded as follows:
[68] Whether or not search engines are publishers is a novel
issue in New Zealand. It will be apparent from the above that its
resolution requires determination of complex issues of law in a
proper factual context. There may be need to consider whether
there is a stamp of human intervention (as counsel for the
plaintiff puts it) in the way that the search engine programme is
written, and to address public policy concerns as occurred in
Crookes v Newton.
M
N
O
P
[71] In light of this being a novel point of law and the limited
foreign authorities available, it is reasonably arguable that a
search engine is a publisher in respect of specific URLs and
words and that, given the lack of clarity surrounding the subject
of the plaintiffs complaint, it is inappropriate to strike out that
claim.
Q
R
S
T
K
L
M
N
O
P
Q
R
S
95
- 55 A
B
102.
Trkulja v Google Inc LLC in the present case, but in light of the reasoning
C
D
of Trkulja v Google Inc LLC and A v Google New Zealand Ltd, which is in
line with that of Ribeiro PJ in Fevaworks Solutions Ltd, and further
C
D
bearing in mind that in the present case (a) Google Inc has conceded that
E
they provided the search services upon accessing the Websites and (b) the
Words were published on such Websites owned and operated by Google
E
F
Inc (and not on any third party platform), Mr Ng urges me to follow the
G
H
G
H
submits that at the very least there must be a good arguable case that
I
103.
K
L
K
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N
element for the act of publication, ie they provided the platform for
O
P
O
P
Q
R
forgotten that unlike the non-publisher in Bunt Google Inc here is in the
S
T
S
T
- 56 A
B
104.
C
D
and (b) the Court of Final Appeals departure from the approach in Tamiz
and other overseas authorities that conflated the two concepts. I also bear
E
F
Metropolitan International Schools Ltd did not have the benefit of the
argument made to him that internet search engines, while operating in an
G
H
and who provide their services. To this, I add that the English case law
must now be viewed through the prism of the reasoning in Fevaworks
I
J
105.
M
N
principle it cuts across the orthodox publication rule under which liability
is strict also has arguable merits. It is also plainly arguable that under the
O
P
publisher, and then one may (if one can) invoke the defence of innocent
dissemination.
106.
Q
R
S
T
- 57 A
B
law with limited foreign authorities and complex interplay between such
C
D
C
D
is a matter of mixed fact and law. Indeed, Beach J said this is fact
E
sensitive, and A v Google New Zealand Ltd also agreed that the issue of
law must be resolved in a proper factual context. In my view, the issue of
E
F
law should not be resolved summarily, and the proper factual context
G
H
J
K
L
M
N
97
107.
J
K
L
M
N
O
P
99
Australia Pty Ltd & ors decided shortly after A v Google New Zealand
Q
R
S
T
Limited but before the hearing of the Summons. In Rana, the applicant
96
see Altimo Holdings Investment Ltd & ors v Kyrgyz Mobil Tel Ltd & ors [2012] 1
WLR 1804, 1825-1826 (which case was concerned with an application to set aside
service out of jurisdiction)
97
98
99
Q
R
S
T
- 58 A
B
C
D
information.
concluded as follows:
50. I do not consider that it is appropriate on a service
overseas application to decide that Google Inc is not the
publisher of the defamatory material. Put shortly, the law is this
regard is not settled: Duffy v Google Inc [2011] SADC 178, [29]
[31].
G
H
J
K
L
M
N
O
E
F
G
H
I
J
K
L
108.
(b) Facts
109.
M
N
O
P
R
S
processes for the results to appear, and as such Google Inc is a mere
T
passive facilitator within a legal safe harbour for avoiding liability for
- 59 A
B
in respect of the web it crawls. It is said that Google Inc has no control
over the search terms entered by the users or over the material that is
C
D
searches made by the users. It is said that Google Inc does not create or
host web content, and the automatic nature of the way in which the search
E
F
110.
I
J
I
J
presented, and Google Searchs users understand that Google Inc is not
K
L
K
L
M
N
they are not even aware of such predictions or search results that appear
O
111.
Q
R
contends that the Autocomplete and Related Searches functions are neutral
tools, and their results do not attribute negative connotations to any
Q
R
S
T
- 60 A
B
previous users have input (for any number of reasons) to find web content
C
D
C
D
112.
G
H
G
H
content of the search results, (b) the variability of the resulting suggestions
I
J
I
J
In the
example cited in the above paragraph, the eventual search results may
K
L
113.
O
P
O
P
also from worldwide web content (with human input limited to the
Q
R
Q
R
Searches functions turn up the most relevant or at the every least the most
S
T
S
T
- 61 A
B
given the billions of searches conducted by Google Search and the mass of
that the entire basis of the internet will be compromised if search engines
are required to audit what can be assessed by users using their search tools.
C
D
Such infinite duty is a much greater task than removal of postings from an
E
E
F
forum rules and where the owner has the capacity and/or responsibility for
editorial control over content.
114.
G
H
and removal, and complains that Google Inc has not responded to the 1 st
I
J
nd
and 2 Letters, has failed to remove the Words from the Websites, and has
K
L
K
L
115.
and Related Searches results is concerned with the question whether they
are an information provider with a neutral tool or whether they act beyond
O
P
116.
S
T
- 62 A
B
Google Search recombines and aggregates data from web content and
previous typed search queries, and transforms such data into Autocomplete
C
D
C
D
E
F
information for the search request made by the user. They also employ
G
H
G
H
I
J
factors that may be outside its control (eg information posted on the
K
L
internet, search queries made by other users and/or search selections the
M
N
users may ultimately pick) to generate the suggestions, its algorithms are
synthesising and reconstituting input query data by previous users and web
M
N
O
P
Google Inc themselves by virtue of the algorithms they have created and
maintained to actively facilitate the search processes.
This raises a
Q
R
and
non-meaningful
jumble
of
keywords.
S
T
- 63 A
B
purpose of the Summons, Google Inc does not take issue that the Words
C
118.
E
E
F
(including pages with credit card numbers and other personal information
that can compromise security) It may also intervene in the search
G
H
I
J
identify sites, ie mistakenly [catch] websites that should not have been
K
L
K
L
known as keyword stuffing. In light of the above, there may be room for
M
N
O
P
factual debate as to what further blocking steps, if any, would be open for
Google Inc to take or how effective they may be.
119.
M
N
O
P
search results generated let alone any analysis of content, which therefore
Q
R
Q
R
the defamatory content or any intent to defame, but rather whether the
S
T
S
T
- 64 A
B
120.
E
F
such liability (if any)? This question underlies the reasoning in Trkulja v
G
H
Google Inc LLC, ie there is material to go to the jury that Google Inc
should not be able to escape liability through the use of automated systems
G
H
being their tool for carrying out their intended purpose, and whether they
I
J
K
L
I
J
Trkulja v Google Inc LLC. But in my view, given the reasoning in Trkulja
v Google Inc LLC and in Fevaworks Solutions Ltd on the approach for
K
L
rely on this authority), I note that just before Trkulja v Google Inc LLC was
M
N
O
P
Q
R
21 and two individual real estate brokers sued Zoocasa and its parent
S
T
S
T
- 65 A
B
from a number of real estate websites on its own website, and in doing so
copied property descriptions and photographs from the Century 21 website
C
D
for use on its own website, which act violated the Terms of Use of Century
E
21s website. The court found Zoocasa liable for copyright infringement
and breach of contract, but Rogers was not liable for Zoocasas actions.
E
F
The court found Zoocasa had agreed to the Terms of Use when it employed
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
G
H
I
J
K
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N
O
P
Q
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T
- 66 A
B
123.
C
D
E
F
whether they are subject to liability and responsibility as being more than
G
just that.
124.
I
J
there has been case law development since the hearing of the Summons.
Whilst there is no need for me to rely on these further authorities in
I
J
K
L
M
N
that case, the plaintiffs obtained court orders against the defendants that
operated a virtual company and their websites were the subject of
O
P
prohibitory court orders and yet they continued to sell their products on
Q
R
line. The plaintiffs sought the injunction against Google Inc (not a party to
the legal action) on the basis that its search engine facilitated the
Q
R
102
- 67 A
B
126.
relation to internet search engines and had this to say about Google Incs
C
D
E
G
H
I
J
K
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N
O
P
Q
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T
argument that it merely offered a passive website for users who wished to
search the internet:
C
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E
F
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H
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N
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P
Q
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- 68 A
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127.
leave to appeal against Felon Js judgment on the basis that the appeal
C
D
cannot be said to be without merit and the issues on appeal are novel and
important.
C
D
Columbia dismissed Google Incs application for interim stay as they were
E
G
H
128.
I
J
K
L
M
But Felon J noted that the issue as to whether Google Inc is a passive
E
F
G
H
I
J
K
L
M
indexer with no control over content has been the subject of litigation in
N
O
other jurisdictions, including Trkulja v Google Inc and the judgment of the
Court of Justice of the European Union in Google Spain SL and Google
N
O
P
Q
of the Google search platform in Spain which resulted in answers that are
R
S
T
mostly against the interests of Google Inc). 105 In Equustek, the arguments
103
104
105
but on 30 July 2014 the House of Lords European Union Committees Subcommittee on Home Affairs, Health and Education published EU Data Protection
R
S
T
- 69 A
B
raised by Google Inc did not prevent Felon J from granting the interim
Law which provides inter alia that Hong Kong residents shall have
freedom of speech, of the press and of publication, and also to article 19(2)
G
H
I
provides that Everyone shall have the right to freedom of expression; this
E
F
G
H
I
right shall include freedom to seek, receive and impart information and
J
K
ideas of all kind , but such right is expressly subject to article 16(3)
which provides that [the] exercise of the rights provided for in
J
K
L
M
130.
the English courts have determined the test for continuing or adapting
common law rules for the law of defamation is whether such rules would
impose a restriction that amounts to a disproportionate restriction on
law: a right to be forgotten? and concluded that the Directive of the European
Parliament and of the Council on 24 October 1995 on data protection and the
interpretation of the Directive by the Court of Justice of the European Union do
not reflect the current state of communications service provision where global
access to detailed personal information has become part of the way of life, that
the proposed right to be forgotten or right to erasure is misguided in principle
and unworkable in practice, and that there are strong arguments for saying that
search engines should not be classed as data controllers
O
P
Q
R
S
T
- 70 A
B
C
D
E
F
131.
G
H
G
H
I
J
publication of the same article, which they claimed was a breach of their
rights under article 10 of the Human Rights Convention. The European
K
L
M
N
concern, and the duties and responsibilities under article 10(2) assume
O
P
O
P
found there was no violation of article 10, and the domestic courts finding
Q
R
S
T
106
see Loutchansky v Times Newspapers Ltd & ors (Nos 2-5) [2002] QB 783, 817
107
108
at para 42
Q
R
S
T
- 71 A
B
132.
109
Sprl,
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D
G
H
I
J
K
133.
C
D
E
F
G
H
I
J
K
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M
said:110
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T
O
P
Q
R
S
109
[2007] 1 AC 359
110
at pp 288-289
- 72 A
B
C
D
Quite apart from whether the move away from the strict publication rule is
consistent with the reasoning in Fevaworks Solutions Ltd, Abella J also
B
C
D
G
H
I
J
K
L
M
G
H
I
J
K
L
M
134.
N
balance between the right of freedom of expression and the need for
protection of individual reputation, and the courts in Hong Kong should let
N
O
P
Q
over which an automated search engine crawls, to hold Google Inc liable
R
S
R
S
(a) the extent to which relevant material has already become available to
T
111
- 73 A
B
the public, (b) the effect of imposing liability on a search engine for
more difficult for the public to find out about these websites), and (c) the
important public interest in publication without being subjected to
C
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information and which accords with the momentum and realities of the
internet age and the needs of access to information and receipt of open
E
F
knowledge.
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135.
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his conduct:112
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N
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N
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136.
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112
- 74 A
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particular part of society), and the need to bear in mind competing social
interests when approaching internet-related disputes:
D
E
G
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113
137.
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F
defamatory of Yeung.114 Google Inc concedes that for the purpose of the
I
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Summons they will not take issue that the Words are defamatory of Yeung.
As a matter of law, a defamatory imputation is presumed to be false,115 so
I
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Mr Ng says that for the purpose of the Summons the Words are presumed
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Kong and Europe, has no Bill of Rights and its constitution does not deal
M
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Q
113
at pp 289-290 (see also Chau Hoi Shuen, Solina Holly at para 5.13)
114
in that they mean or are understood to mean inter alia that Yeung is a member of or
associated with the triad, that he is a pervert, that he is a member of or associated
with Sun Yee On, a notorious triad society in Hong Kong, that he has engaged in
criminal activities through the triad, and that he is corrupt, dishonourable and
immoral
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115
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- 75 A
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139.
E
defendant invoked section 14 of the New Zealand Bill of Rights Act 1990
and argued that the development of the law in this area ought to be
E
F
would be an unreasonable limit upon that right to hold that the automatic
generation of search results amounts to publication.
Search engine
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- 76 A
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E
140.
B
C
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E
F
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(if they can) to raise the defence of innocent dissemination on the basis, as
they claim, they have no awareness of any defamatory material. I also
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agree that any decision on this should be made in the proper factual
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context and with the benefit of legal argument on the elicited facts. In the
circumstances, these considerations do not dissuade me from my view that
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(d) Summary
141.
the publisher of the Words and liable for their publication. With Hong
Kong being the place of publication, it follows therefore there is also a
good arguable case that damage has been sustained within this jurisdiction
or the damage has resulted from an act committed within the jurisdiction.
It also follows that Hong Kong is the appropriate forum.
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- 77 A
B
C
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E
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is possible but shows there is very limited search activity in Hong Kong
and none to a genuine third party. Clark says that unless there is evidence
of substantial readership in Hong Kong, there is no or no significant
damage to Yeungs reputation.
B
C
D
E
F
G
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Hong Kong. Mr McCoy SC cites Jameel (Yousef) to say that the Leave
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Order should be set aside on the basis that the game is not worth the
candle.116
143.
S
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117
damage must now be qualified in two respects, one statutory which is not
relevant to this jurisdiction and the other is Jameel abuse of process.118 In
Jameel (Yousef), the Court of Appeal decided that if a claimant brought an
action in circumstances where his reputation had suffered no, or minimal,
actual damage, it may constitute an interference with freedom of
116
117
118
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N
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at p 966
see Ratcliffe v Evans [1892] 2 QB 524, 528 and English and Scottish Co-operative
Properties Mortgage and Investment Society, Limited v Odhams Press, Limited
[1940] 1 K B 440, 461
para 32.52 at pp 1256-1257
S
T
- 78 A
B
reputation, which may render the action susceptible to being struck out as
C
an abuse of process.
144.
E
has no relevance to Hong Kong because the Hong Kong courts have
declined to follow the English approach. He refers to Wong Wing Ho v
119
rejected such approach on the basis that at that time Hong Kong had not
adopted rules similar to the Civil Procedure Rules and the implication of
G
H
120
Wing Ho, Hong Kong has undergone the Civil Justice Reform. In Jotron
121
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(Yousef) on the basis that the court there was dealing with inter alia the
summary disposal of the claim pursuant to section 8(2) of the Defamation
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Act 1996, which provides that the court may dismiss the claim if it appears
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directly relevant here because the Summons does not seek to strike out
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119
120
see para 23
121
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- 79 A
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basis that the alleged libel does not reach the threshold of seriousness
required to establish a real and substantial tort that has been committed
C
D
C
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Ltd123 and Chadha v Dow Jones & Co Inc 124 cited in Jameel (Yousef).125
Indeed, in the pre-Jameel local case of Investasia Limited & anor v
Kodansha Co Ltd,
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126
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magazine with very limited distribution in Hong Kong. The learned judge
considered the plaintiff had sufficient business connections with Hong
I
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especially when the alleged defamatory material was sensational and juicy
and in the nature of things likely to spread from mouth to ear quickly
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amongst those who might do business with the plaintiff, and said:
Q
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Q
122
at pp 963-964
123
124
125
at pp 964-965
126
127
at para 21
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- 80 A
B
C
D
E
146.
14. Of course, one can do sums with the figures and say
that the number published in Hong Kong compared with the total
number is very small, but I do not think this is the right
approach. What I am concerned about is whether or not the
number is significant for the purposes of deciding whether a
complaint about the publication could be said to be one of
substance. I think it is.
Since Google Inc in the Summons does not ask for Yeungs
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bearing in mind the underlying objectives of the Civil Justice Reform and
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147.
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the Yuen Aff provides ample evidence of substantial publication, and (c) in
M
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the Yuen Aff. Yuen explains that by using Google AdWords128 and Google
Trends
128
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129
129
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- 81 A
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location (ie the Monthly Search Volume) and the popularity of any
C
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D
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149.
E
F
G
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I
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M
N
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The Relative
Popularity or index score for the keyword for July 2012 and for
the last 12 months from July 2012 are 45 and 448 respectively.
150.
searches made for in Hong Kong for July 2012 (being the full
M
N
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portion of the google web searches to compute how many searches have been
done for the keyword entered relative to the total number of searches done on
Google Search over time, which analysis indicates the likelihood of a random user
to search for a particular search keyword from a certain location at a certain time,
and the results of a users check on the popularity of the selected keyword will be
shown on a graph, plotted on a scale from 0 to 100
R
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T
130
ie the approximate 12-month average of the number of google searches for such
keywords
R
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T
- 82 A
B
Yeung and Albert Yeung Sau-Shing for July 2012 are not available
C
D
from Google Trends because there is not enough search volume to show
graph, so Yuen cannot calculate the estimated number of google
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D
searches for such keywords for July 2012. But the approximate 12-month
E
E
F
keywords Albert Yeung and Albert Yeung Sau-Shing are 1,000 and
G
260 respectively.
151.
I
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For the purpose of the Summons, Google Inc does not take
I
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contentions:
K
(a)
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Keywords has not been placed before the court at the ex parte
M
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stage.
O
(b)
P
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conducted daily using Google Search and also with the daily
circulation of 251,895 copies and 108,047 copies for Apple
R
S
- 83 A
(c)
The same person can conduct the same search multiple times
thus skewing any count of search results, so the fact that 7,995
C
searches have been done does not mean that 7,955 separate
users performed and saw the results of 7,955 searches.
(d)
E
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Just because users searched the Keywords does not mean they
saw the predictive suggestions complained of. It cannot be
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F
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substantial publication.
K
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152.
and ILL and/or the statistical evidence in the Yuen Aff demonstrate that (a)
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when searches were made with the Keywords at the Websites, Google
Search would instantaneously and automatically generate the Words as
M
N
autocompletions and related search terms, and (b) there is inference for
O
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Q
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it is highly probable that any person who wants to do business with or find
S
out more about Yeung would google him, which service is free to anyone
- 84 A
B
who has access to the internet, and the Words would have been accessible
to anyone who typed Yeungs name into the Search Box on the Websites.
C
D
153.
statistics that 7,995, 1,000 and 260 searches had been made against the
E
E
F
Google Trends are Google Incs own internet service tools, Google Inc is
G
H
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Instead, they have chosen to withhold such information and to file the
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154.
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matter raised in the Clark 1st Aff. Clark claims that notwithstanding the
statistics compiled by Yuen, Yeung has not produced any evidence that
anyone in Hong Kong had accessed the .com.tw or the .com Websites and
performed searches using the Keywords. Mr McCoy SC says that even on
Yeungs own case there appears to be no actionable claim capable of being
maintained by Yeung in relation to the Words on the .com.tw and .com
Websites.
155.
M
N
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P
Q
The Clark 1st Aff explains that the rationale for the different
domain names and the Websites linked to them is that they are country
specific. Users who navigate to the .com Website from an IP address
Google Inc believes is in a different country will be redirected to the
R
S
T
- 85 A
B
appropriate domain for the country they are located in, eg a user from
Hong Kong who seeks to navigate to the .com Website will be redirected to
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D
the .com.hk Website, and a user in Taiwan who seeks to navigate to the
.com Website will be redirected to the .com.tw website. This redirection
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E
F
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G
H
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K
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156.
The Clark 1st Aff further explains that a member of the public
in Hong Kong on 6.8.2012 who had access to the internet would not be
O
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provided with search predictions or search results from the .com and
.com.tw Websites without deliberately altering his/her settings so as to
O
P
prevent redirection to the com.hk Website. He complains that the SoC and
Q
R
the Hon 1st Aff do not distinguish between the Words provided as search
predictions and/or related search items by reference to each of the three
Q
R
.com and .com.tw Websites, that there was actual publication to a third
party in Hong Kong, ie an act committed in this jurisdiction or damage
S
T
- 86 A
B
157.
E
automatic redirection of Hong Kong users to the .com.hk Website and the
absence of evidence that someone in Hong Kong has actually re-directed
E
F
himself from the .com.hk Website to the .com and .com.tw Websites, none
G
H
In the
G
H
158.
I agree with Mr Ngs three-fold answer. First, the Hom 1st Aff
and Yuen Aff confirm that searches have been conducted in Hong Kong
K
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N
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against all three Websites and not just the .com.hk Website.
159.
K
L
M
N
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query in the Search Box to look for the .com Website and/or .com.tw
Q
R
Website, and upon access to carry out internet search at such Website(s)
without having to alter settings to prevent all future automatic redirection
Q
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- 87 A
B
160.
stipulate the sources and grounds of his information and belief in respect of
his assertion that search queries made in Hong Kong are automatically
C
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the RHC. Mr Ng reminds that Clark is Google Incs solicitor, who does
not say he has personal knowledge of the technical operation of the Google
E
F
Google Inc.
161.
I
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It has been said that Order 41 rule 5(2) of the RHC should be
strictly complied with where objection is likely to be taken, 131 and that an
affidavit of information and belief, not stating the sources of the
I
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source of his information and belief. It is said that Order 41 rule 5(2) of
O
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the RHC has been complied with even if they are not exhibited to his
affidavit provided that, if he is required to produce the documents, he
Q
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P
Q
131
132
see Leung Kin Fook & ors v Eastern Worldwide Co Ltd [1991] 1 HKC 55, 58-59,
and also Enertec Co, Ltd v Gold Hill Hong Kong Holdings Limited
HCA 2328/2012, Ng J (unreported, 21 January 2014)
133
134
[1991] 1 HKC 55
- 88 A
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either does so or provides an explanation for not doing so which the court
regards as acceptable.
C
D
135
162.
Inc issued the Summons, given the nature of the application made under
E
E
F
queries by Google Inc is raised by them and is not a matter that arises from
Yeungs case, it is incumbent on Google Inc to abide by the rules in order
G
H
to properly place before the court the explanation they now seek to put
I
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duty for (a) the Clark 1st Aff exhibits documents to support Clarks
explanation as to the operation of Google Incs search engine, and (b) the
K
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nd
Clark 2 Aff specifies that where facts and matters in that affidavit are not
M
N
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activity with respect of searches made with the Keywords for the .com
and .com.tw Websites.
O
P
163.
S
T
135
see p 500
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- 89 A
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damage so trivial that there is no real and substantial tort to support the
164.
E
F
has been published to one or more persons, it may be inferred that the
G
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material (if easily accessible) has been published more widely within the
jurisdiction.138
165.
claimant sued for libel in respect of two articles published in The Times
G
H
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matter was actually seen and read by some third party. If it is a matter of
M
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Q
sued over a letter published by the defendant on the internet that alleged
136
137
R
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138
139
140
141
M
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- 90 A
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costs. That letter was accessible to anyone who fed the claimants names
C
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into a standard search engine and readable by anyone who accessed the
defendants own professional website.
C
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167.
two internet articles published by the defendant from his home in Ireland.
G
H
G
H
Yorkshire ripper into a standard internet search engine and that the
I
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Yorkshire ripper case was a topic of continuing public interest, King J held
any jury would draw the irresistible inference that the two articles had been
I
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168.
cited by either counsel, the claimant brought proceedings against the New
M
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York Times and the International Herald Tribune in an English Court for
publishing an allegedly defamatory article. Evidence established there
M
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were approximately 177 hard copies and 31 hits of the story on line.
O
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act to put the matter on the internet in order to reach a small target. It is its
ubiquity which is one of the main attractions to users of it. And any person
Q
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143
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- 91 A
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which fact naturally gives rise at least to the possible inference that there
has been a continuing, albeit modest, readership. He allowed the action
C
D
to proceed. In discussing whether there has been a real and substantial tort
E
within the jurisdiction (or, at that stage of the proceedings, arguably so),
Eady J said [this] cannot depend on a numbers game with the court fixing
an arbitrary minimum according to the facts of the case.
144
G
H
169.
defamatory article had been downloaded and read by at least one person
I
J
using the Yahoo! 7 internet search service and they had published the
article such person(s), but they argued that the article would not have been
I
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read by the world at large and instead would have been read by people who
K
L
K
L
notice, that the use of the internet, to ascertain information about particular
M
N
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to whom the defendants published the article, would have used the
defendants search engine specifically to obtain information about the
plaintiff.
Q
R
145
O
P
Q
R
S
144
at para 15
145
at para 36
- 92 A
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community. It was said that the publication had a more injurious effect
than if it had been made on the live or print media since it was open to
C
D
persons, who heard about the publication, to view it for themselves and to
confirm the contents/effect of it. On such basis, Kaye J was satisfied the
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D
plaintiff.
170.
G
H
G
H
substantial number of persons have searched for and read the information
I
J
K
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evidence before me that in both May and August 2012 google searches
at the Websites using the Keywords generated the very same 1 st, 2nd, 3rd and
K
L
th
results are driven by previous search activity and/or web content, the
matching results in May and August 2012 lend themselves to an inference
M
N
case that the popularity and volume of previous search activity using the
relevant keywords that drive the autocompletions generated by Google
O
P
st
Search, and there has been no other explanation for why the 1 and
Q
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Q
R
S
146
see Collins (2014) para 4.14 at p 73 and ZAM v CFW & anor [2013] EWHC 662
(QB) (26 March 2013) paras 109 and 111
- 93 A
B
172.
gaming, the subject matter of the Words being topics of continuing interest
to members of the public in this jurisdiction in view of the nature of
C
D
E
F
G
H
to the Websites and as a result of such visits being paid there was access to
I
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the Words.
K
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I
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autocompletions and related search terms over the Period without being
replaced by other words arguably serves to fuel the damage to Yeungs
K
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reputation in Hong Kong, which may well have more injurious effect than
M
173.
O
P
st
O
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set out in Hong Kong Civil Procedure 2014,147 and I have summarised
them in China Agri-Products Exchange Limited v Wang Xiu Qun.148 I do
147
148
Q
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- 94 A
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culpable only when the information goes to the weighing operation of the
C
D
E
C
D
E
F
on terms that the plaintiff pay all the costs of the discharge application,
and such decision whether or not to renew leave is obviously
149
discretionary.
I
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H
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proper one for service out, the court will now need to apply the principle of
proportionality in weighing the gravity of the omission against the
proposed impact on the proceedings in terms of discharge or costs.
150
M
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175.
O
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application.
149
150
S
T
- 95 A
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176.
searches by the Keywords in July 2012 alone compared with the massive
C
D
C
D
E
F
damage in Hong Kong are likely to be minimal if Yeung wins at trial. The
allegations in the Words have criminal associations (and for the present
G
H
purpose Google Inc does not take issue that the Words are defamatory of
I
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Yeung), and an award may take into account the matters Yeung relies in
aggravation.151 A jury (or judge if the matter is to be tried by judge alone)
I
J
may consider that such returns by the Autocomplete and Relates Searches
K
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features made publicly available to all internet users and persisted after
being served with take-down notification merit a substantial award. It is
K
L
trite that an award of damages in libel actions serves not only to vindicate
M
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the reputation of the claimant, but also to compensate him for injury to his
feelings.
177.
M
N
non-disclosure (which I do not agree), I would have either not set aside the
O
P
affidavit evidence before me that Yeung will have nothing to gain from this
action or that the potential benefits to him of continuing with this claim are
Q
R
151
- 96 A
B
The Clark 2nd Aff states that the whole purpose of an internet
search query is to look for content relating to the search terms. Predictive
suggestions are tools for enhancing Google Searchs functionality and do
G
H
I
not provide content of the relevant websites which are the true answers to
the search queries. Google Inc cannot intervene and change the URLs of
such third party websites which content has been uploaded to the internet.
Google Inc neither creates nor hosts the relevant webpages, but the third
D
E
F
G
H
I
parties responsible for the relevant websites can remove content to other
J
K
J
K
L
M
179.
O
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S
- 97 A
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Google Inc were to remove the suggestions, it does not actually remove the
C
180.
E
herring argument since the Words are published by Google Inc on the
Websites owned/operated by them and not by third parties on third party
internet platforms.
G
H
E
F
G
H
stage unclear how the suggestions actually differ from web content or
previous search terms, and it is not easy at this stage to appreciate how
I
J
K
L
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its immediate and ready access invites the user towards them. It cannot be
O
P
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said at this stage there is no point to Yeungs claim against Google Inc
irrespective whether or not he has other claims against specific websites.
181.
S
T
152
at p 1263
O
P
Q
R
S
T
- 98 A
B
C
D
E
I do not think this supports Mr McCoy SCs contentions. Quite apart from
the fact that Bunt has to be read in light of Fevaworks Solutions Ltd as
explained above, Eady J has himself explained his observations in Tamiz v
Google Inc & anor as follows:153
H
I
J
K
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N
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This I agree, and I have found there is a good arguable case that Google
Inc is a publisher in respect of the Words on the Websites as alleged by
B
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D
E
F
G
H
I
J
K
L
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N
O
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Yeung.
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- 99 A
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immaterial to the issues herein, and do not propose to discuss this any
C
further.
(f) Summary
E
183.
G
H
IX. CONCLUSION
184.
in favour of Yeung against Google Inc (with all costs reserved if any) to be
I
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185.
access to a rich store of information are many, and they have been widely
applauded. But such benefit comes at a price; any risk of misinformation
M
N
can spread easily as users forage in the web. The art is to find the
O
186.
(Marlene Ng)
- 100 A
B
Mr Lawrence Ng, instructed by Iu, Lai & Li, for the plaintiff
E
F