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Dr Yeung Sau Shing Albert v Google Inc

5 August 2014
Court of First Instance
CFI
High Court Action No 1383 of 2012
HCA 1383/2012
Citations: [2014] HKEC 1315 English Judgment
Presiding Judges: Deputy Judge Marlene Ng in Chambers
Phrases: Civil procedure - writ of summons - service - service out of
jurisdiction - action by Hong Kong plaintiff against company based in
USA for defamation - whether leave for service out to be granted -
whether good arguable case - whether serious question to be tried on
merits of claim - whether Hong Kong clearly and distinctly
appropriate forum for trial
Counsel in the Case: Mr Lawrence Ng, instructed by Iu, Lai & Li, for the plaintiffMr
Gerard McCoy SC, instructed by Deacons, for the defendant
Cases cited in the
judgment:
A v Google New Zealand Ltd [2012] NZHC 2352
Brady v Norman [2008] EWHC 2481 (QB)
Budu v The British Broadcasting Corp [2010] EWHC 616 (QB)
Carrie v Tolkien [2009] EWHC 29 (QB)
Century 21 Canada Ltd Partnership v Rogers Communications Inc &
Another doing business as Zoocassa Inc 2011 BCSC 1196
Crookes v Newton [2011] 3 SCR 269
Dow Jones & Co Inc v Gutnick (2002) 194 ALR 433
Equustek Solutions Inc & Another v Morgan Jack & Others 2014 BCSC
1063
Google Spain SL and Google Inc v Agencia Espaola de Proteccin de
Datos (AEPD) and Mario Costeja Gonzlez C-131/12
Gregg v OGara [2008] EWHC 658
Investasia Ltd & Another v Kodansha Co Ltd (unrep., HCA 12519/1997)
Korea Sonbak Shipping Co v Charter Harvest Shipping Ltd [1994] 1 HKC
494
Leung Kin Fook & Others v Eastern Worldwide Co Ltd [1991] 1 HKC 55
Loutchansky v Times Newspapers Ltd (No 2) [2001] EMLR 876
Mardas v New York Times Co & Another [2008] EWHC 3155
Mohammed Hussien Al Amoudi v Jean Charles Brisard & Another [2006]
EWHC 1062 (QB)
Oriental Press Group Ltd & Another v Fevaworks Solutions Ltd [2013] 5
HKC 253
Oriental Press Group Ltd v Fevaworks Solutions Ltd [2012] 1 HKLRD 850
Oriental Press Group Ltd v Next Magazine Publishing Ltd & Others (No 2)
(unrep., HCA 3831/997, [2000] HKLRD (Yrbk) 587)
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Prediwave Corp & Another v New World TMT Ltd [2007] 4 HKC 207
Pullman v Walter Hill & Co Ltd [1981] 1 QB 524
Rana v Google Australia Pty Ltd & Others [2013] FCA 60
Re J (A Child) [2013] EWHC 2694
Tamiz v Google Inc & Another [2012] EWHC 449 (QB)
Times Newspapers Ltd v The United Kingdom (Nos 1 and 2) [2009] ECHR
451
Trkulja v Google Inc LLC & Another [2012] VSC 533
Trkulja v Google Inc LLC & Another (No 5) [2012] VSC 533
Trkulja v Yahoo! Inc LLC & Another [2012] VSC 88
Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Rep
81-127
Wishart v Murray & Others [2013] NZHC 540
ZAM v CFW & Another [2013] EWHC 662 (QB)
Altimo Holdings Investment Ltd & Others v Kyrgyz Mobil Tel Ltd & Others
[2012] 1 WLR 1804

Bryne v Deane [1937] 1 KB 818

Bunt v Tilley & Others [2007] 1 WLR 1243

Chadha v Dow Jones & Co Inc [1999] EMLR 724

Chau Hoi Shuen Solina Holly v SEEC Media Group Ltd (unrep., CACV
275/2012, [2014] 3 HKLRD 77)

China Agri-Products Exchange Ltd v Wang Xiu Qun (unrep., HCA
1807/2011, [2013] HKEC 1758)

Davison v Habeeb [2012] 3 CMLR 6

Emperor (China Concept) Investments Ltd v SBI E-2 Capital Securities Ltd
& Another (unrep., HCA 2686/2004, [2005] 4 HKLRD L6, [2005] 4
HKLRD L13)

Enertec Co Ltd v Gold Hill Hong Kong Holdings Ltd (unrep., HCA
2328/2012, [2014] HKEC 230)

English and Scottish Co-operative Properties Mortgage and Investment
Society Ltd v Odhams Press Ltd [1940] 1 KB 440, 461

Godfrey v Demon Internet Ltd [2001] QB 201

In re JL Young Manufacturing Co Ltd [1900] 2 Ch 753

Jameel (Mohammed) & Another v Wall Street Journal Europe Sprl [2007] 1
AC 359

Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946
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Jotron AS v Stanley Chang (unrep., HCA 378/2010, [2011] HKEC 676)

Kroch v Russell et Cie Socit des Personnes Responsibilit Ltd [1937] 1
All ER 725

Loutchansky v Times Newspaper Ltd & Others (Nos 2-5) [2002] QB 783

Loutchansky v Times Newspapers Ltd & Others (Nos 2-5) [2002] QB 783

Lumley v Osborne [1901] 1 QB 532

Metropolitan International Schools Ltd v Designtechnicia Corp [2011] 1
WLR 1743

Noble Power Investments Ltd v Nessei Stomach Tokyo Co Ltd [2008] 5
HKLRD 631

Oriental Press Group Ltd v Next Magazine Publishing Ltd & Others (unrep.,
HCA 3831/1997, [2000] 3 HKLRD 412)

Oriental Press Group Ltd v Next Magazine Publishing Ltd & Others (unrep.,
CACV 1006/2001, [2002] HKEC 468)

Ratcliffe v Evans [1892] 2 QB 524

Steinberg v Pritchard Englefield & Another [2005] EWCA Civ 288

Tamiz v Google Inc [2013] EMLR 14

The Duke of Brunswick v Harmer (1849) 14 QB 185

Wo Fung Paper Making Factory Ltd v Sappi Kraft (Pty) Ltd [1988] 2 HKLR
346

Wong Wing Ho v Chong Lai Wah & Another (unrep., CACV 212/2007,
[2008] HKEC 243)

Judgment:

Deputy Judge Marlene Ng in Chambers
Index Page
I. Introduction 2
II. Summons 7
III. Issues 9
IV. Autocomplete and Relates Search Features 10
V. Service out of jurisdiction 15
VI. Good arguable case: publication 15
VII. Good arguable case: publisher 22
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(a) Law 24
(b) Facts 59
(c) Striking a balance 69
(d) Summary 77
VIII. Serious question to be tried 77
(a) Real and substantial tort or
Jameel abuse of process
77
(b) .com and .com.tw Websites 85
(c) Scale of publication 89
(d) Alternative claims 96
(e) Previous litigation 99
(f) Summary 99
IX. Conclusion 100
I. INTRODUCTION
1. Technological developments and innovations have rendered 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. Left unmonitored, there may
be disquieting consequences through misinformation and unaddressed complaints, especially when the search
process throws up unsavory information associated with a person or entity that proves to be derogatory and false.
Questions have arisen in international legal forums over this troubling grey area (the combined diligence of
counsel have presented me with over 50 authorities), and now at issue in this case in Hong Kong are the twin
questions of who is responsible for predictive suggestions generated by the Autocomplete and Related Searches
search engine features, and whether defamation law principles are amenable to address such concern.
2. The plaintiff ("Yeung") is a businessman and chairman/founder of the Emperor Group being a group of listed
companies based in Hong Kong and engaged in various business enterprises ("Group"), including property
development and investment, retailing, hospitality and gaming, financial services, entertainment and movies as
well as publishing and distribution. Yeung is involved in community services, and responsible for establishing
various charitable funds and foundations. He has received recognition for his charity work.
3. The defendant ("Google Inc") is a global business with headquarters in the United States that provides internet
based services. Such services include internet search facilities through the use of their internet search engine
known as "Google Search" ("Google Search"). Google Search is accessible by entering the name of any of the
worldwide 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, www.google.com.tw and www.google.com
(".com.hk Website", ".com.tw Website" and ".com Website", collectively "Websites"). The .com Website is a top
level domain that comprises the top level domain Google Inc uses for their services in the United States, 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 respectively.
4. Yeung claims that on 23 May 2012, a search was conducted on the Websites as follows:
(a) When the following Chinese characters and/or English words were typed in the "Google
Search"/"Google " search box ("Search Box") on the homepage of the Websites, Google Search
instantaneously and automatically generated a list of Autocomplete search suggestions in the drop-down
menu for the user's selection even before the user clicked the search button, some of which suggestions
contained the following characters and/or words:
(i) typing "" generated " ", " " and " "1 ("1st Words");
(ii) typing "albert yeung" and/or "albert yeung sau shing" generated "albert yeung triad" and "albert
yeung sau-shing triad" ("2nd Words").

(b) When the following Chinese characters and/or English words were typed in the Search Box on the
homepage of the Websites and the search button was clicked, Google Search generated at the bottom part
of the search outcome/results page a list of "Related Searches"/"", some of which contained the
following characters and/or words:
(i) typing "" generated " ", "", " ", " 14k", "
" and ""2 ("3rd Words");
(ii) typing "albert yeung" generated "albert yeung sau-shing triad" ("4th Words").

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5. Yeung claims Google Inc published or caused to be published the 1st, 2nd, 3rd and 4th Words (collectively,
"Words") that are defamatory of 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 of "", "albert yeung" and/or "albert yeung sau
shing" as the "Keywords".
6. By a letter dated 28 May 2012 ("1st Letter"), Yeung's solicitors ("ILL") (a) notified Google Inc of the presence
of the Words published on the Websites, (b) claimed that although Google Inc's Autocomplete and Related
Searches algorithms "may not involve any human intervention, they nevertheless generate and display
information/ suggestion to internet users" which in the present case contained words/phrases that were defamatory
of and concerning Yeung, and (c) demanded Google Inc to remove/prevent the Words from
appearing/reappearing in any existing/future "google" search made against the Keywords. Yeung claims that by
reason of the 1st Letter Google Inc knew or ought to have known of the presence of the Words on the Websites at
least from 28 May 2012.
7. On 21 June 2012, Yeung through ILL wrote to Deacons (former solicitors for Google Inc in previous litigation
between Yeung and Google Inc)3 to draw their attention to the presence of offending words in the
autocompletions upon typing the Keywords in the Search Box of the Websites, and to enquire whether they had
instructions to act in the matter ("2nd Letter"). By the 2nd Letter, Yeung also indicated his wish to explore the
possibility of an amicable resolution of the matter similar to the eventual disposal of the earlier litigation (ie
removal of the defamatory material by Google Inc and discontinuance of the legal action).
8. Yeung claims that notwithstanding notification by the 1st and 2nd Letters Google Inc has failed to take down
the Words and has continued to publish or cause to be published the Words at the Websites from 28 May 2012 (the
date of the 1st Letter) to 6 August 2012 (the date of the Writ of Summons referred to in the paragraph below)
("Period").
9. On 6 August 2012, Yeung issued a Writ of Summons against Google Inc ("WoS") for inter alia damages for
libel in respect of the 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 an injunction order restraining Google Inc from
howsoever publishing and/or causing the publication of and/or participating in the publication of the alleged
libels.
10. Yeung claims his personal and/or business reputation has been gravely injured by reason of the publication of
the Words, and he relies on the following facts and matters in aggravation of damages:
(a) the publication of the Words relates to allegations against him that are of a criminal nature and/or
otherwise serious;
(b) Google Inc has failed to take any or any reasonable step to verify the truth/accuracy of the Words,
which contain allegations against him that are of a criminal nature and/or otherwise serious;
(c) despite receipt of the 1st Letter, Google Inc has continued to publish or caused to be published the
Words on the Websites, thereby causing further harm and suffering to him.

11. On 16 August 2012, Yeung filed the affirmation of Hom Mun Yee Caroline ("Hom")4 in support of his ex
parte application for 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 ("RHC") ("Hom 1st Aff").
12. On 28 August 2012, ILL wrote to the court to request for the issue of a concurrent WoS. On 3 September 2012,
Master K Lo inter alia granted leave for Yeung to issue/serve a concurrent WoS against Google Inc out of
jurisdiction in the United States ("Leave Order"). On 14 September 2012, the concurrent Writ of Summons
("CWoS") was issued out of court.
13. On 4 October 2012, Google Inc's solicitors ("Deacons") filed acknowledgment of service giving notice of
intention to defend. On 5 November 2012, Yeung filed his Statement of Claim ("SoC").
II. SUMMONS
14. On 24 December 2012, Google Inc issued a summons under Order 12 rule 8 of the RHC and/or the inherent
jurisdiction of the court for inter alia the following reliefs ("Summons"):
(a) a declaration that the court has no jurisdiction over Google Inc in respect of the subject matter of the
claim or the reliefs/ remedies sought against Google Inc in the present action, or alternatively a
declaration that the court should not exercise any jurisdiction it may have;
(b) 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 action be stayed.

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 over them, (b) there is no good arguable case that Yeung's claim falls within Order 11
rule 1(1)(f) of the RHC, and (c) there is no serious issue to be tried on the merits of Yeung's case. Google Inc also
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relies on matters further set out in the affidavit of their solicitor Robert George Clark ("Clark") filed on 24
December 2012 ("Clark 1st Aff"). There is an implicit allusion to a complaint of material non-disclosure in the
Clark 1st Aff, but Clark makes an express complaint in his affidavit in reply filed on 17 April 2013 ("Clark 2nd
Aff").
16. On 20 February 2013, Yeung filed Hom's 2nd affirmation and the affirmation of Yuen Yin Man Timothy
("Yuen")5 in opposition ("Hom 2nd Aff" and "Yuen Aff").
17. For the purpose of the Summons, Google Inc does not take issue over whether the Words are defamatory of
Yeung.
III. ISSUES
18. As explained above, Yeung's application for the Leave Order is based on Order 11 rule 1(1)(f) of the RHC.
The Hom 1st Aff contends that Yeung's 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.
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. Mr McCoy SC, counsel for Google Inc, accepts the above principles are prima facie uncontroversial, but
suggests that Yeung has only partly fulfilled his duty by merely drawing attention to these principles at the ex
parte stage. He submits there is no evidence of publication of the Words to a genuine third party in Hong Kong
and/or Yeung has failed to highlight to the master the principles/authorities that show Google Inc is not a
publisher of the predictions (including the Words) or even the search results themselves which Google Search
generates without human intervention. Hence, there is no good arguable case of Yeung's 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 discretion to grant the Leave Order. Although not explicitly mentioned in the Summons,7 Mr McCoy SC also
suggests there has been material non-disclosure at the ex parte stage that justifies discharge of the Leave Order.
21. On the other hand, Mr Ng, counsel for Yeung, says that Google Inc as a search engine is liable for failing to
take down the defamatory Words they as publisher have published on the Websites in Hong Kong to third parties
after having been notified of the presence of such Words on the Websites. Mr Ng disagrees there has been any
material non-disclosure, and submits there is a good arguable case that Yeung's claim is within Order 11 rule
1(1)(f) of the RHC as well as a serious question to be tried.
IV. AUTOCOMPLETE AND RELATED SEARCHES FUNCTIONS
22. Google Inc owns and operates Google Search. The internet has billions of publicly indexable webpages and
billions of internet users. Every day Google Search answers more than one billion queries in 181 countries and
146 languages. To understand Yeung's complaints in relation to Google Search's Autocomplete and Related
Searches features, it is necessary to detail how they work.
23. If an internet user knows a specific website address, he/she can visit it without using a search engine. But to
find information that is not presented to the user as a specified website address or an active link, a search engine is
his/her portal to the internet. It enables the user to peruse a huge volume of websites which would otherwise be an
unmanageable task.
24. Google Search has automated information retrieval and index construction systems that crawl the web and
index the webpages. Its web crawling bot or "spider" is called Googlebot. As Googlebot crawls the web, it
processes the webpages and compiles a massive index (similar to 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, and the new and
updated data is added to the index. Googlebot uses complicated and sophisticated algorithmic processes to decide
which websites to crawl, how often, and how many pages to fetch from each website. Websites that want to block
Googlebot from crawling their content can take steps to do so, including using robots.txt to block access to files
and directories on their servers.
25. When a user performs a typical "google" search, the following information flow occurs: (a) the user inputs a
search query by typing the desired search term(s)/keyword(s) into the web browser, (b) Google Search displays or
serves the results to the query, and (c) the user receives the content.
26. Traditionally, the user types his search query in the Search Box and clicks the search button, then Google
Search begins the search process by crawling and fetching webpages. Googlebot's automated and
pre-programmed algorithmic search processes extract information from its 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 librarian
looking through the index cards of the library trying to identify 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. Typically, the
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search results generated by Googlebot contain the name of the identified piece of content, a hyperlink to its
location, and a snippet/excerpt from the webpage that shows how the content relates to the search query.
27. Google Search's ranking algorithms use over 200 unique signals to determine which of the webpages out of
the many are most relevant to the search query according to popularity, demand and/or usage. One such signal is
PageRank which measures the importance of a webpage based on the number/quality of incoming links from
other pages. Other 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 page. Google Inc touts the outcome of its crawl and search
relevancy algorithms as presenting "the most relevant search results towards the top of the page, and the less
relevant search lower down the page".
28. Google Search's Autocomplete functionality takes a step beyond the traditional approach by allowing Google
Search to operate with greater relevance and efficiency to its users by helping them to find information quickly.
As the user types his search query in the Search Box, Google Search begins to offer predictive suggestions or
keyword generations in real-time in the drop-down menu to finish the keyword phrase. The Autocomplete feature
displays constantly updated search suggestions for the user to choose, and the predictive suggestions change on
each additional keystroke as the user types in the Search Box.
29. Google Search's Related Searches feature is a search engine tool that helps the user to quickly look for results
similar to his search query that he may be missing or if he is not sure exactly what he is looking for. When a user
types search term(s)/keyword(s) in the Search Box, the Related Searches feature displays popular refinements that
are commonly associated with the original search query and/or are slightly more detailed 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 outcome/results page, and the user can click/select any of the variations so displayed in order to dig deeper
into that topic.
30. Underlying the Autocomplete and Related Searches features, which are designed by Google Inc to increase
search efficacy, is Google Search's complex suggested search and related terms algorithms that reflect past search
activity of all "google" search web users (which in turn reflect the popularity and volume of the search queries
they have previously typed) and the content of the webpages indexed by Google Search. It is the previous search
activity and web content that drive the suggestions.
31. The relevancy and popularity of Autocomplete predictions and Related Searches results produced by Google
Search's algorithms and computer programmes may alter upon changes in user search activity and internet content.
Search terms as applied by internet users may change over time, and internet content changes with new webpages
being introduced and old webpages being edited or taken down. A user typing "McDonalds" in the Search Box
may throw up "McDonalds hamburger" as an autocompletion on a given day and "McDonalds cheeseburger" on
another occasion. However, to influence or change what the autocomplete instant results show will require a large
number of users with unique internet protocol (IP) addresses to type the desired search query into Google Search
on an ongoing basis.
32. In face of the operations described above, Google Inc contends that it is not a "publisher" of the results of
Google Search's Autocomplete and Related Searches functionalities. Mr McCoy SC argues that by providing
internet search services through Google Search's automated search algorithms without human input, Google Inc is
a mere passive facilitator in respect of the words/images seen on its domains.
33. For the purpose of the Summons, Yeung does not dispute the automated nature of the Google Search processes,
but Mr Ng argues that through their design, maintenance and improvement of the algorithms used to (a) compare
search queries with Googlebot's index, (b) decide the relative importance of webpage ranking, and (c) reconstitute
web content and aggregate previous search activity, Google Inc "intended" and in this sense has control over the
Autocomplete and Relates Searches results that appear on the Websites, and is therefore a "publisher" of such
results.
34. I will return to these matters below.
V. SERVICE OUT OF JURISDICTION
35. In general, to obtain leave to serve a writ of summons out of jurisdiction, a plaintiff is required to:
(a) show in relation to his claim he has a good arguable case that it falls within the ground relied upon
under Order 11 rule 1(1) of the RHC;
(b) satisfy the court there is a serious question to be tried on the merits of the claim, ie a substantial
question of fact or law or both;
(c) satisfy the court that in all the circumstances, Hong Kong is clearly and distinctly the appropriate
forum for the trial of the dispute, and the court ought to exercise its discretion to permit service of the writ
of summons out of the jurisdiction.

VI. GOOD ARGUABLE CASE: PUBLICATION
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36. Each person who publishes defamatory material is potentially liable. Question therefore arises as to whether
Google Inc can be regarded as a "publisher" of the Words being predictions or suggestions derived from Google
Search's search processes, and if so, whether Google Inc has published the Words to a third party publishee. I shall
deal with the latter question first.
37. Publication is a bilateral act. In defamation cases, material is "published" and damage occurs where the
publication is comprehended by the reader, and it ordinarily occurs at the place where the material is made
available. In the internet context, as explained above, it is at the place where the material is viewed/downloaded
(rather than where it was posted/ uploaded onto the internet) provided that the claimant has a reputation capable of
being damaged in the jurisdiction in which he wishes to bring 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 occurs.
38. Here, the Hom 1st Aff confirms that when the 1st Letter was published, the Group's information and
technology department ("IT Dept") was able to download and print the Words from the Websites, and further
contends that such users are plainly different from Yeung. Further, when there was no response to the 1st Letter
and Google Inc still did not remove 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. Mr McCoy SC has no quarrel with the principles set out in paragraph 37 above, but says that without actual
evidence of a genuine third party user conducting a search using the Keywords and giving evidence of the precise
results thrown up by the Autocomplete and Related Searches features that such user has seen on the web browser
at a particular time/date, there can be no certainty of what has been seen or "published". Since the users from the
IT Dept and/or ILL are "persons employed by or tasked by [Yeung] to deliberately search, find and ' publish'
material allegedly defamatory of him", there is no third party user and hence no publication.
40. Mr McCoy SC submits that for well over 150 years since The
Duke of Brunswick v Harmer (1849) 14 QB 185 ,9 the common law has turned its face away from an artificial and
orchestrated situation whereby a claimant sets his servant or agent (in contra-distinction to a genuine third party)
to read the libel as constituting publication to a third party. He says that at the ex parte stage Yeung has failed to
provide evidence of publication of the Words to a true third party in Hong Kong, and in failing to raise this issue
in the Hom 1st Aff he is also in breach of his duty to make material disclosure.
41. I disagree. In The Duke of Brunswick, the Duke was given a copy of a newspaper published 17 years
previously that contained material defamatory of him. Such newspaper was sold to a person sent by the Duke
to procure it. But contrary to Mr McCoy SC's submissions, Coleridge J held that: " the defendant, who,
on the application of a stranger, delivers to him the writing which libels a third person, publishes the libellous
matter to him, though he may have been sent for the purpose of procuring the work by that third person. So
far as in him lies, he lowers the reputation of the principal in the mind of the agent, which, although that of an
agent, is as capable of being affected by the assertions as if he were a stranger. The act is complete by the
delivery: and its legal character is not altered, either by the plaintiff's procurement or by the subsequent
handing over of the writing to him. Of course that this publication was by the procurement of the plaintiff is
not material to the question we are now considering."

42. This is also borne out by the judgment by Lord Esher MR in Pullman v Walter Hill & Co Ltd [1981] 1 QB 524
10 cited with approval in Godfrey v Demon Internet Ltd [2001] QB 201
:11"The first question is, whether assuming the letter to contain defamatory matter, there has been a
publication of it. What is the meaning of 'publication'? The making known the defamatory matter after it has
been written to some person other than the person of whom it is written If the writer of a letter shows it to
his own clerk in order that the clerk may copy it for him, is that a publication of the letter? Certainly it is
showing it to a third person; the writer cannot say to the person to whom the letter is addressed, 'I have shown
it to you and to no one else.' I cannot, therefore, feel any doubt that, if the writer of a letter shows it to any
person other than the person to whom it is written, he publishes it. If he wishes not to publish it, he must, so
far as he possibly can, keep it to himself, or he must send it himself straight to the person to whom it is written.
There was therefore, in this case a publication to the type-writer."

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43. Mr McCoy SC submits that Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946
13 held that where the plaintiff procures publication to his agent or servant for the purpose of defamation
proceedings, as in the present case, it amounts to an abuse of process, and he relies in particular on the
following observations:
55. "There have been two recent developments which have rendered the court more ready to
entertain a submission that pursuit of a libel action is an abuse of process. The first is the
introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an
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approach by the court to litigation that is both more flexible and more proactive. The second is the
coming into effect of the Human Rights Act 1998. Section 6 requires the court, as a public authority,
to administer the law in a manner which is compatible with Convention rights, insofar as it is
possible to do so. Keeping a proper balance between the article 10 right of freedom of expression
and the protection of individual reputation must, so it seems to us, require the court to bring to a stop
as an abuse of process defamation proceedings that are not serving the legitimate purpose of
protecting the claimant's reputation, which includes compensating the claimant only if that
reputation has been unlawfully damaged.
56. We do not believe that Brunswick v Harmer 14 QB 185 could today have survived an application to
strike out for abuse of process. The Duke himself procured the republication to his agent of an article
published many years before for the sole purpose of bringing legal proceedings that would not be met by
a plea of limitation. If his agent read the article he is unlikely to have thought the Duke much, if any, the
worse for it and, to the extent that he did, the Duke brought this on his own head. He acquired a technical
cause of action but we would today condemn the entire exercise as an abuse of process." (my emphasis)


44. I am unable to discern from the above passage support for Mr McCoy SC's proposition. In Jameel (Yousef), the
court held that an action can be struck out on the ground that a libel claim with minimal publication that caused no
real damage within the jurisdiction is, in the circumstances, an abuse of process. What this case demonstrates, at
least in England and Wales, is that a defendant who fails to challenge or who has unsuccessfully challenged
jurisdiction is not precluded from later advancing an argument of minimal publication and/or insubstantial
damage to support an application to strike out the claim as an abuse of process. It is in this vein that the English
Court of Appeal suggested The Duke of Brunswick would not have survived today, but they nevertheless accepted
the Duke did "[acquire] a technical cause of action". As explained in Gatley, "[since] publication to one person
will suffice, it is not necessary that there should be a "publication" in the commercial sense, though the scale of the
publication will of course affect the damages. However, where the publication is to a small number of people
any claim risks being struck out as an abuse of process "14I will return below to the issue of Jameel abuse of
process, but suffice to state here that this case does not support Mr McCoy SC's propositions as set out in
paragraphs 40 and 43 above.
45. Mr McCoy SC submits there is already analogous law in Hong Kong that supports his propositions albeit in a
different context. He claims it was held in Oriental Press Group Ltd v Next Magazine Publishing Ltd & Others
HCA 3831/1997
, unreported,15 Oriental Press Group Ltd v Next Magazine Publishing Ltd & Others (No 2) HCA 3831/997
, unreported16 and Oriental Press Group Ltd v Next Magazine Publishing Ltd & Others CACV 1006/2000
unreported17 that the particular person chosen by the 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 meaning could not be
regarded as a member of the public in the true sense as required under the law of defamation.
46. As rightly pointed out by Mr McCoy SC, the authorities cited 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 natural
and ordinary meaning of the impugned article within the general knowledge of ordinary readers or a defamatory
meaning that arises because of extrinsic facts known only to the recipients. The latter, being a plea of "true" or
"legal" innuendo, has two principal consequences: (a) the plaintiff must not only identify in its particulars of claim
the defamatory meaning which it contends the words convey but also identify the relevant 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 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
Hence, the extended innuendo meaning must arise from facts passing beyond general knowledge that are "within
the knowledge of the persons to whom the words were published".19
47. In that case, the learned judge held that the publisher of Oriental Daily News, who was an employee of the
plaintiff for many years and whose knowledge/understanding of the plaintiff's structure and the composition of
their management level, could not be equated with that of an ordinary member of the public, still less within any
class of ordinary readers of Next Magazine to whom the article was published. But I cannot see how the
magazine's readership relevant for ascertaining the meaning and innuendo of the alleged defamatory material has
any bearing on the 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 claimant who has viewed the impugned material.
48. In my view, there is plainly a good arguable case that viewing, downloading and printing the Words from the
Websites by users at the IT Dept and ILL constitute publication of the Words to third party publishees.
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VII. GOOD ARGUABLE CASE: PUBLISHER
49. Mr McCoy SC submits that at law Google Inc is not a publisher since no human input/operation is required in
the search processes for the Autocomplete and Related Searches results to appear. As a search engine, Google Inc
is a mere passive medium of communication without any mental element. He says Yeung's claim is therefore
wholly unarguable.
50. On the other hand, Mr Ng submits that even if the Google Search system is automated, Google Inc actively
facilitates the publication of the Words. They intend Google Search to operate and to publish the results (including
the Words) generated by its automated systems when a "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 downloaded by an internet user,
there is, as intended by Google Inc, publication by them as owner and operator of Google Search. The Words are
not trespassing inscriptions by a third party on Google Inc's property (ie the Websites) without their approval or
encouragement such that they can invoke the principle in Bryne v Deane [1937] 1 KB 818
.20
51. Mr Ng argues that even if the Bryne principle is applicable, the courts in common law jurisdictions have
consistently held that liability will be established against an internet service provider ("ISP") or search engine if,
after having been notified of the presence of defamatory material on their server/website, they fail to remove it,
and such liability is premised on their knowledge of and/or control over the defamatory material. In the present
case, the 1st Letter (reinforced by the 2nd Letter) has brought home to Google Inc the presence of the Words on
the Websites as well as Yeung's complaint about them, and the "google" search by ILL using the Keywords on 6
August 2012 demonstrates the continued presence of the Words on the Websites even after notification.
52. Alternatively, Mr Ng contends that whether Google Inc is a publisher raises significant and complex legal
issues, and it is inappropriate to decide such controversial and developing area of the law in an application to set
aside service out of jurisdiction without eliciting all the facts and evidence.
53. Mr McCoy SC says there is no case law he can find in the common law jurisdictions on liability for defamation
in respect of autocompletions and related searches results, and Yeung is not entitled to 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 court to bear in mind that Yeung's claim as presently framed is a narrow one relating to autocompletions and
related search suggestions, and on such refined basis the current development of case law does not support
Yeung's contentions.
54. I accept that the electronic technology revolution has brought new challenge to the orthodox legal framework
for libel actions, but it is 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) [2013] EWHC 2694
(albeit not in a libel context):21" The law must develop and adapt, as it always has done down the years
in response to other revolutionary technologies. We must not simply throw up our hands in despair and moan
that the internet is uncontrollable. Nor can we simply abandon basic legal principles. "

55. With such thought in mind, I turn to the issue of whether or 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.
56. I note at the outset both Mr McCoy SC and Mr Ng confirm 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 submissions.
(a) Law
57. As explained above, the gist of a defamation claim is not in the creation of the libel but in its publication.
Ribeiro PJ in Oriental Press Group Ltd & Another v Fevaworks Solutions Ltd [2013] 5 HKC 253 said as
follows:23
18. "As Issacs J explained, "To publish a libel is to convey by some means to the mind of another
the defamatory sense embodied in the vehicle "
19. Until mitigated by the common law defence of innocent dissemination which evolved in the late
nineteenth century, liability for publishing a libel was strict and could lead to harsh results. A person
was held liable for publishing a libel if by an act of any description, he could be said to have
intentionally assisted in the process of conveying the words bearing the defamatory meaning to a
third party, regardless of whether he knew that the article in question contained those words. "

Consequently, any person who takes part in making the defamatory statement known to others may be liable for it.
So under the strict publication rule, publication of a libel by, say, a newspaper means the journalist (who is
originator of the article), the editor (who accepts/prepares it for publication), the printer (who sets the type and
prints it), the wholesale distributor (who disseminates it), the newsagents (who sell it to the readers), and the
Page 11
newspaper's proprietor (who published it through its employees or agents) are all liable.24
58. The harshness of the strict publication rule has led to some relaxation by the development of the common law
defence of innocent dissemination, but such defence is available only to a subordinate (not main) publisher who
does not know and will not with reasonable care in the relevant circumstances have known the article contains
defamatory content, eg a newsagent who has sold a consignment of newspapers that contains an offending article
may rely on such defence if he is not aware of the defamatory content and cannot, with reasonable care, have
discovered it.25
59. Such defence that may be open to a subordinate publisher (ie a publisher who in the ordinary course of
business plays subordinate role in the process of disseminating the impugned article, eg persons such as
wholesalers, distributors, booksellers, librarians, newsagents and the like)26 that mitigates the harshness of the
strict publication rule must be contrasted with the common law principles derived from
Bryne v Deane [1937] 1 KB 818 27 concerning owner(s) or occupier(s) whose premises are defaced without their
approval or encouragement by trespassers who have affixed defamatory statements onto a notice board or
scrawled such statements as graffiti on the wall. Such owner(s) or occupier(s) have not, in any sense, assisted or
participated in the publication of the libel and are not publishers of the libel. But failure to remove defamatory
material from the property within the control of such owner(s) or occupier(s) can in some circumstances make
them responsible for publication of the statement. Thus, the Bryne principle is "not about relieving a person's
prima facie liability as a publisher [ie the defence of innocent dissemination] but about whether or not an occupier
is constituted a publisher".28
60. In Bryne, the claimant was a member of a golf club whose owners illegally kept gambling machines on
the premises. 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 the words were not capable of a defamatory meaning.
Greer LJ at pp 829-830 said: " 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."

Greene LJ agreed and posited that the defendants should be liable if having regard to all the facts of the case the
proper inference was that by not removing the defamatory statement they really made themselves responsible for
its continued presence in the place where it had been put.29 Such inference would ordinarily be drawn unless it
would require very great trouble and expense to remove the defamatory material. Slesser LJ thought only the
secretary had published the defamation by adopting the statement posted on the notice board.30
61. Greene LJ's judgment was approved by Hunt J of the New South Wales Supreme Court in Urbanchich v
Drummoyne Municipal Council [1991] Aust Torts Rep 81-127
.31 That case concerns posters with photographs of persons in Nazi uniforms in the company of Adolf Hitler
glued to bus shelters in the 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. The
plaintiff drew the Authority's 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 capable of being a publisher if the jury
found there was "an acceptance by the defendant of a responsibility for the continued publication of that
statement": "In a case where the plaintiff seeks to make the defendant responsible for the publication of
someone else's defamatory statement which is physically attached to the defendant's property, he must
establish more than mere knowledge on the part of the defendant of the existence of that statement and the
opportunity to remove it. According to the authorities, the plaintiff must establish that the defendant
consented to, or approved of, or adopted, or promoted, or in some way ratified, the continued presence of that
statement on his property so that persons other than the plaintiff may continue to read it "

This suggests that an inference of publication would only be drawn after the defendant had a reasonable period
after the notification to take down the defamatory material. Hunt J emphasised that whether any inference of
publication should be drawn is a question of fact. His reasoning seems to reject an imposition of a positive duty to
remove defamatory material except when there is an assumption of responsibility for continued publication.
62. In Fevaworks Solutions Ltd, Ribeiro PJ concluded that the Bryne line of cases was authority for the
following propositions:32
(a) "Where a third person writes or affixes a statement defamatory of the plaintiff on the occupier's
property without the occupier's knowledge, the occupier is not treated as a publisher of that
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statement prior to his becoming aware of it.
(b) Once the occupier discovers its existence, he may be treated as a publisher but only if, having the
power to do so, he does not remove or obliterate the offending statement in circumstances which
justify inferring as a matter of fact that by his inaction he has consented to or ratified its continued
publication.
(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."


63. The distinction between the two sets of principles explained in paragraph 59 above underlies Ribeiro PJ's
disagreement with the treatment of the Bryne principle as a facet of the innocent dissemination defence in some of
the reported cases involving libel in an internet context.33 This fundamental distinction also underlies his
conclusion that the Bryne principle does not apply to internet platform or discussion forum providers who cannot
be equated as "the occupier of premises who is not in the business of publishing or facilitating publication at all,
but who has imposed on him the defamatory act of a trespasser". Since internet platform or discussion forum
providers in that case played an active role in encouraging and facilitating the multitude of internet postings by
their members, they were participants in the publication of postings by the forum's users and they fell from the
outset within the broad traditional concept of "a publisher", a characteristic not shared by a golf club or other
occupier who puts up a notice board on which a trespassing message is noted.34
64. On this basis, Ribeiro PJ parted company with the reasoning adopted in
Tamiz v Google Inc [2013] EMLR 14 35 and Wishart v Murray & Others [2013] NZHC 540
,36 which reasoning proceeds on the basis that successful invocation of the defence of innocent dissemination
results in the defendant being deemed not to have published at all. Rather, internet discussion platform providers
(such as the defendants before him) that encourage and facilitate publication falls 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 actual knowledge of the alleged libel, are not aware of circumstances that give cause to suspect a
libel, and are not negligent in failing to discover the libel) if they can.37
65. It is therefore clear from Fevaworks Solutions Ltd that the primary question is whether or not the defendant is
within the broad traditional concept of a publisher under the strict publication rule: 38
(a) If he is found to be a non-publisher and the defamatory act of a trespasser was imposed on him, the
relevant question under the Bryne principle is whether he has at some point been fixed with knowledge of
the libel and has demonstrated his consent to and adoption of the libel, and has thus turned himself into a
publisher.
(b) If he is found to be a publisher who has participated in the publication, the relevant question is
whether he is entitled to rely on, and have established, the defence of innocent dissemination in order to
be relieved of the strict publication rule that is otherwise applicable.
To address this question, one has to ascertain whether he is a subordinate or main publisher since such
defence is only available to the former and not the latter. But it must be remembered that "[the] starting
point of the discussion is that a subordinate distributor is equally liable as the main publisher of the libel"
(ie he is nonetheless a publisher), and "[it] is against the harshness of this rule that the innocent
dissemination defence is made available to the subordinate distributor".39
If the defendant knows the content of the defamatory material and has authorised/participated in its
publication, he will be liable as a main publisher.40 Ribeiro PJ also held that an internet intermediary is a
main publisher where he knows or ought reasonably to be aware of the content of the article complained
of though not necessarily of its defamatory nature as a matter of law (ie the knowledge criterion) and has
a realistic ability to control publication of such content (ie the control criterion).41

66. On the facts of Fevaworks Solutions Ltd, the defendants were providers, administrators and managers of a
website that hosted a popular internet discussion forum. Only registered members could post and 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 suggested the plaintiffs were involved in crimes and triad activities. The issues included whether
the defendants were in law regarded as publishers of the defamatory postings and whether the common law
defence of innocent dissemination was applicable. Ribiero PJ concluded that the defendants were subordinate
publishers of the defamatory postings "since they provided the platform for their dissemination", but until notified
they neither knew nor was it reasonable to expect them to know of the libellous statements, hence they "are
therefore in principle able to invoke the innocent dissemination defence as subordinate publishers".42 Once they
were notified, they took all reasonable steps to remove the offending publication from circulation as soon as
Page 13
reasonably practicable, and they successfully relied on such defence.
67. In short, the defendants in Fevaworks Solutions Ltd have been found to be publishers under the strict
publication rule (ie they intentionally assisted in providing a platform for the dissemination of the defamatory
postings regardless of whether they knew such postings contained defamatory material), which is a separate issue
from qualification for main or subordinate publisher.43 In any event, they have satisfied the requisite mental
element for the act of publication, which is not knowledge of the content of the article being published,44 but
rather an intention to "lend his assistance to [the existence of the defamatory material] for the purpose of being
published".45 It is the defendant's instrumentality to the publication rather than knowledge of defamatory content
that is relevant.
68. I have discussed the aforesaid distinction at some detail because the case law from other common law
jurisdictions must now be viewed through the prism of such distinction drawn in Fevaworks Solutions Ltd, which
is binding on me.
69. The early internet case of Godfrey is an action in defamation against an ISP that carried a newsgroup that was
available to be read by customers. An unknown person in the United States posted a comment that was considered
defamatory of the plaintiff. Morland J held that the transmission of a defamatory posting from the storage of a
news server constituted publication of that posting to any subscriber who accessed the newsgroup containing that
posting. He found the defendant was not a mere passive owner of an electronic device through which postings
were transmitted, but it chose to receive and store the newsgroup containing the offending postings on its
computers and transmit them in response to 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.46
70. Morland J accepted that liability for publication at common law was strict and therefore the ISPs could be
treated as publishers of defamatory material stored on their servers even though they were ignorant of their
existence. He found they would be liable unless they could establish (and the onus was on them) the defence of,
say, innocent dissemination.47Godfrey was cited without disapproval in Loutchansky v Times Newspaper Ltd &
Others (Nos 2-5) [2002] QB 783
.48 Morland J's reasoning is in line with the law as explained in Fevaworks Solutions Ltd.
71. But the more recent English common law authorities appear to treat knowledge of the existence of the
defamatory statement as essential before an internet intermediary can be considered to be a publisher.49
72. In
Bunt v Tilley & Others [2007] 1 WLR 1243 ,50 Mr Bunt, who conducted his case in person, ran a website for his
business which incorporated a discussion forum. He alleged that Mr Tilley (a) posted a "thread" on the website
that disparaged his products and (b) with two others made defamatory comments about him on other discussion
forums and newsgroups. Mr Bunt, relying heavily on Godfrey, sued their ISPs alleging they provided "corporate
sponsorship and approval" of the defamatory postings and were the conduit used to publish the offending
comments. Eady J held that Mr Bunt had no reasonable prospect of establishing any of the ISPs had participated in
the relevant publications, and the ISPs successfully applied for summary judgment.
73. Eady J said that " to impose legal responsibility upon anyone under the common law for the publication
of words it is essential to demonstrate a degree of awareness or at least an assumption of general responsibility",51
and it was necessary to demonstrate an ISP's activity was more than passive and that it knowingly involved in the
process of publishing "the relevant words". Consequently, "persons who truly fulfill no more than the role of a
passive medium for communication cannot be characterised as publishers: thus they do not need a defence".52
74. It appears that the passivity rule (ie "mere conduits" or "passive facilitators" do not attract liability), if I may so
describe it, in the ratio of Bunt is different from the obiter view of Morland J in Godfrey.53 The question of
knowledge as raised by Eady J in Bunt has been considered by Ribeiro J in Fevaworks Solutions Ltd in the context
of the knowledge criterion for determining whether or not a publisher under the 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
accessible a multitude of postings on the forum they must be taken to know the contents of the postings or
discussion threads complained of since they formed part of that multitudinous body of material.54 But Ribeiro PJ
(following Eady J's observations in Bunt) disagreed, and said the knowledge criterion for finding the publisher to
be a main publisher "should be taken to mean that the publisher must know or be taken to know the content - not
necessarily every single word posted - but the gist or substantive content of what is being published", but it is
"irrelevant whether the provider realised that such content was in law defamatory".55
75. As explained above, such observations by Ribeiro PJ were made in the context of ascertaining whether or not
a provider (being a publisher under the strict publication rule) "qualify as a first or main publisher".56 "It should
be stressed that adopting a more focused requirement as to knowledge does not mean absolving a platform
provider from liability. It means treating it as a subordinate publisher and throwing on it the burden of bringing
itself within the innocent dissemination defence."57 This does not address the antecedent question of whether or
Page 14
not the provider qualifies as a publisher, and Bunt must be read in such context in this jurisdiction. Indeed, even
Gatley suggests that "it is certainly arguable that, like others innocently involved in the transmission of a
defamatory publication, [the defendants in Bunt] should have been treated as subordinate publishers. It has been
said to be the law that the mere transmission by an intermediary is a publication".58
76. As regards the control criterion for identifying the main publisher in contra-distinction to the subordinate
publisher, Ribeiro PJ59 cited Eady J's reference to "an opportunity to prevent publication" in Bunt, and also to the
matter of editorial control emphasised by the Supreme Court of Canada in Crookes v Newton [2011] 3 SCR 269
.60 At issue in the latter case was whether creating an internet hyperlink to defamatory material constituted
"publication" for the purpose of defamation law.
77. In that case, after C brought defamation actions against various parties alleging he had been defamed in
several articles on the internet, N posted an article on his website which commented on the implications of C's
defamation suits and included hyperlinks connected to the impugned articles. C asked N to remove the hyperlinks,
but N refused. It was held that providing hyperlinks did not amount to publication of the linked article, and the
majority emphasised that the author who created the hyperlink did not control the secondary article's content or
publication. N therefore had not published any defamatory material, and C's action could not succeed.
78. The judgment considered the breath and harshness of strict publication rule, the amelioration brought by
development of the defence of innocent dissemination defence, and the fact that in recent years the strict
publication rule had been tempered by cases (eg Bunt and
Metropolitan International Schools Ltd v Designtechnicia Corporation [2011] 1 WLR 1743 61) which suggest
that some acts of communication are so passive that they should not be considered publication. In light of these
developments, it was held that creating a hyperlink (which essentially is a content-neutral reference and which
gives the author no control over the content of the linked secondary article) to defamatory material is not the type
of act that constitutes publication. It was said that hyperlinks only communicate that something exists, but do not
by themselves communicate content, especially when some further act by a third party is required before the
content can be accessed.
79. As explained above, Riberio J's discussion of Crookes was in the context of the control criterion for
determining whether or not a provider qualifies as a main publisher (failing which the provider will be treated as a
subordinate publisher), but Abella J, writing for the majority in Cookes, held that a formalistic application of the
strict publication rule to hyperlinks was not appropriate and relied on the passivity rule (as explained above) to say
that hyperlinks did not constitute publication of the linked material.
80. I bear in mind that Ribeiro PJ did "note in passing" the argument in certain internet cases whether internet
intermediaries "should be regarded as "mere conduits" or "passive facilitators" comparable to the Post Office
or a telephone company", but there is no detailed discussion since it was not suggested that the defendants in
Fevaworks Solutions Ltd were such.62 In my view, any reliance on the passivity rule (as explained above) in
this jurisdiction must be viewed in light of the ratio and approach in Fevaworks Solutions Ltd as discussed
above, especially in relation to the strict publication rule for determining qualification as a publisher, which
is a separate issue from categorising a publisher as a subordinate publisher for invoking the innocent
dissemination defence. It is interesting to note that Gatley says the "better view" may be that internet
intermediaries that "facilitate" access to websites provided by others (eg providing the computer systems
through which communications happen to pass on their route from one computer to another) "should be
treated as subordinate publishers in that they intentionally participate in the dissemination of the material
complained of",63 and it is arguable that under the strict publication rule:64"not only should the internet
service providers in Bunt v Tilley have been treated as having published the defamatory statements but it
would seem to follow that the Post Office "publishes" a defamatory letter which it delivers and a telephone
company publishes a slander when it relays a defamatory telephone call. Of course, in the overwhelming
majority of cases internet service providers, the Post Office and telephone companies do not know, nor is it
reasonable to expect them to know, of the contents of the publications and therefore they will be able to rely
on either the common law defence of innocent dissemination or one of the statutory defences [which is not
applicable to Hong Kong]."

81. In any event, Crookes expressly left open the question whether the same principles (ie it is not publication of
the referenced content absent evidence of someone having actually viewed and understood the defamatory
information to which the user-activicated hyperlink directs) would apply to embedded or automatic links that
automatically display referenced material with little or no prompting from the reader.65 According to the
majority's reasoning, if hyperlinks are made to appear as part of the website that the hyperlinker controls (ie the
use of the hyperlink in itself conveys a defamatory meaning about the plaintiff as where the link repeats the
defamatory sting conveyed by the underlying content), it can arguably constitute publication.
82. In
Page 15
Davison v Habeeb [2012] 3 CMLR 6 ,66 HH Judge Parkes QC set aside the order of a master granting permission
to serve the writ on Google Inc in the United States. That case concerned allegations published in an online
newspaper about the claimant, and later republished by the author and another on his personal website managed
by Google Inc's blogging platform "Blogger.com". The claimant asked Google Inc to remove the material, but
Google Inc declined.
83. In that case, the judge found Blogger.com to be like a gigantic notice board, and concluded that Google Inc
had the ability to "take the notices down if they are pointed out to it" (ie liability was dependent on
Blogger.com receiving notification that it was carrying defamatory material).67 Whilst the judge expressed
sympathy for Google Inc's position,68 he concluded that "[in] my view it must be at least arguable that [Google
Inc] should properly be seen as a publisher responding to requests for downloads like Demon Internet, rather than
a mere facilitator, playing a passive instrumental role".69 Since Google Inc was a publisher at common law,
following notification it would be unable (or at least arguably unable) to establish it was ignorant of the
defamatory material on Blogger.com, and at some point after notification it would become liable for continued
publication of the material complained of on the Bryne principle of consent or acquiescence.70
84. Even though HH Judge Parkes QC held that Google Inc was a publisher of the material complained of and at
least following notification they would be liable for publication of that material, he concluded there was no
realistic prospect of the claimant establishing that notification of the complaint fixed Google Inc with actual
knowledge of unlawful activity 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 defendant.71 Had the complaint been "sufficiently precise
and well substantiated, and where there was no attempt by the author of the defamatory material to defend what
had been written", a different conclusion might have been reached.72
85. But Ribeiro PJ has already rejected the approach adopted in Davison which conflated the Bryne principle and
the defence of innocent dissemination by treating the former merely as a facet of the latter.73 Since HH Judge
Parkes QC held in Davison that it was at least arguable Google Inc was more than a mere facilitator playing a
passive instrumental role and could be seen as a provider hosting material on its servers and responding to
requests for downloads, it must also be arguable, following Ribeiro PJ's reasoning, that it would have been found
to be a publisher under the strict publication rule in this jurisdiction.
86. I now turn to
Tamiz v Google Inc [2013] EMLR 14 74 and its reasoning which Ribeiro PJ expressly declined to adopt. In that
case, the claimant sued in respect of defamatory comments posted on a blog hosted by Blogger.com that was
operated by Google Inc. The claimant complained to Google Inc about the comments and after some delay Google
Inc contacted the author of the blog who voluntarily removed it. The claim concerned comments published after
Google Inc was notified of the comments but prior to their removal. Eady J set aside service of the claim form out
of jurisdiction, and in reaching that decision he found Google Inc was not the publisher of three of the comments
which were arguably defamatory, and the period between notification and removal was so short and any potential
liability so trivial that it was Jameel abuse of process to maintain the proceedings. Mr McCoy SC reminded that
Eady J took note it was virtually impossible for Google Inc to exercise editorial control over the content of the
blogs it hosted which in the aggregate contained more than half a trillion words, with 250,000 new words added
every minute.75
87. In the English Court of Appeal, Richard LJ felt it unnecessary to address counsel's criticisms of Bunt, but
he was not persuaded that Eady J fell into any fundamental error of analysis or reached the wrong conclusion
in relation to the kind of internet service under consideration in that case.76 However, he held that in the case
before him Google Inc was neither a primary nor secondary publisher prior to notification of complaint,77
but they fell within the scope of Bryne v Deane78 after notification. Richards LJ said at p 321 that:
33. " The provision of a platform for blogs is equivalent to the provision of a notice board; and
Google Inc goes further than this by providing tools to help a blogger design the layout of his part of the
notice board and by providing a service that enables a blogger to display advertisements alongside the
notices on his part of the notice board. Most importantly, it makes the notice board available to bloggers
on terms of its own choice and it can readily remove or block access to any notice that does not comply
with those terms.
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.
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)
Page 16


88. The English Court of Appeal plainly found that Google Inc facilitated publication of the blog and its
comments, hence the effect of Tamiz is to sweep away the strict publication rule under common law "certainly so
far as concerns internet publications" in the English jurisdiction, which view has been rejected by the Court of
Final Appeal in Fevaworks Solutions Ltd which treated a website operator/host as a subordinate publisher who
made facilities available for others to post and thereby intentionally participated in the dissemination of the
defamatory material, and such website operator/host was liable unless it could bring itself within the defence of
innocent dissemination which required it to show that it neither knew nor ought to have been aware of the content
of the material.79
89. Mr McCoy SC urges me to apply the passivity rule (as explained above) as developed in Bunt, and says that
the facts of Tamiz (which concerned a blog platform host who would more fairly be expected to administer the
content of the postings by internet users) are crucially different from those in the present case (which concerns a
search engine that passively reproduces content placed freely on the internet by internet users). On the other hand,
whilst Mr Ng agrees that Tamiz was not concerned with internet search engine operator, he submits Bunt must
now be reviewed in light of Fevaworks Solutions Ltd which has diverged from the English authorities.80 He says
that consequently Bunt is now irrelevant to the primary question of whether or not Google Inc as a search engine is
a "publisher" of the Words on the Websites.
90. In
Wishart v Murray & Others [2013] NZHC 540 ,81 the defendants set up a Facebook page to campaign for a newly
published book to be boycotted, and they made defamatory comments against one of the authors. One of the
defendants monitored and moderated postings on the Facebook page that was created. Courtney J considered the
Byrne principle (followed in Urbanchich) and also other English authorities (eg Godfrey, Bunt, Metropolitan
International Schools Ltd, Davison and Tamiz), and found that a host of a Facebook page had in essence
established a notice board which gave him the power to control the content published, and since the defendants
could not be passive hosts of content posted on their Facebook page, they must be regarded as publishers of the
postings made by anonymous users (a) if they knew of the defamatory postings and failed to 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 ought to know that the postings made would be defamatory in nature. In short, Courtney J
found that either actual or inferred knowledge of the defamatory imputations was sufficient to find liability as
publisher for a host of a Facebook page in respect of comments by a third party.82
91. Mr McCoy SC submits this case is not helpful and is quite distinguishable as it deals with anonymous
defamatory postings on a 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 creator of a Facebook page to manage the
content posted on it. There is no need for me to consider such submission because Wishart suffers from a
more fundamental concern in this jurisdiction. Its reasoning has been rejected by Ribeiro PJ in Fevaworks
Solutions Ltd on the same basis as for his divergence with Tamiz.83 This has been recognised in
Gatley:84"As the Hong Kong Final Court of Appeal explained in Oriental Press Group Ltd v Fevaworks
Solutions Ltd, Bryne v Deane applies where the occupier of premises has defamatory material forced on him:
it does not apply where the defendant actively encourages third parties to post material on the website that it
provides. The better view may therefore be that hosts are secondary publishers who will, in the absence of
knowledge or imputed knowledge, be able to rely on the innocent dissemination defence."

92. This brings me to the authorities in the common law jurisdictions on the liability of internet search operators.
This was considered in yet another decision by Eady J in Metropolitan International Schools Ltd. In that case, the
claimant sued in respect of defamatory bulletin board postings on a website. The libels appeared as snippets of
information (accompanied by hyperlink) when the users carried out internet search under the claimant's name
using Google Inc's search engine. Eady J found the internet search was performed automatically by the search
engine's computer programme, and involved no input by any officer or employee of Google Inc. He distinguished
this from the compiler of a conventional library catalogue, who might be liable for compiling the catalogue on the
basis that liability attached for repeating a libel. He also found Google Inc played no role in formulating the search
terms and could not prevent the snippets from appearing in response to the user's search request unless some
positive steps had been taken in advance, so the essential mental element required for establishing liability for
publication was absent, and Google Inc could not be characterised as a publisher at common law but was merely a
facilitator. Eady J therefore set aside the service out of jurisdiction.
93. The next question in that case was whether the legal position became different once Google Inc was informed
of the defamatory content of a snippet thrown up by the search engine. Eady J held that although a person could
become liable for the publication of a libel by acquiescence (ie by permitting publication to continue when he/she
Page 17
has the power to prevent it),85 a search engine was different from an internet intermediary or website host in that
it had no control over the search terms to be typed by future users, and if a future search result throws up the
impugned words, it does not follow that Google Inc has authorised or acquiesced in that process.86 Whilst Google
Inc was able to (and eventually did) prevent searches returning links to specific URLs (uniform resources locators)
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 Inc's "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
94. In Fevaworks Solutions Ltd, Ribeiro PJ discussed Metropolitan International Schools Ltd in the context
of the defence of innocent dissemination, which requires the defendant to prove that he did not know and
would not, with the exercise of reasonable care in the relevant circumstances, have known that the article
contained defamatory content. In relation to subsequently acquired knowledge, the internet intermediary
may satisfy the requirements of the defence in terms of lack of knowledge etc, but "may subsequently
become aware of the relevant defamatory content in circumstances where the defamatory article is still
available for distribution and where, before it can removed, some further acts for publication in fact occur".
However, Ribeiro PJ said:
94. "The existing authorities have tended to deal with this situation under the rubric of the "notice board"
cases as discussed above. But as previously stated, I do not consider that analysis satisfactory. The issue
appears to me to be better viewed as arising in the context of the innocent dissemination defence.

96. In the situation posited, the premise is that the defendant is a subordinate publisher who made the
article available when there was nothing in the work or the circumstances under which it came to him or
was disseminated by him which should have led him to suppose that it contained a libel; and his lack of
awareness was not due to any negligence on his part. The defence implicitly recognised that such a
defendant may in fact unwittingly publish matter that is defamatory of the plaintiff, but exempts him from
liability provided he meets the standard of reasonableness." (my emphasis)

It was in such context that Ribeiro PJ referred to Eady J's observations in Metropolitan International Schools Ltd
concerning the position after notification was made to the search engine operator.
95. Eady J in Metropolitan International Schools Ltd held that under English law an automated search engine
operator is not liable as publisher in respect of search results appearing as snippets as it never had control over the
result of a search and lacked any knowing involvement in publication, but if, as explained by Ribeiro PJ, the
question of knowledge of content is to be brought within considerations for the innocent dissemination defence, it
begs the antecedent question as to whether the search engine operator may "unwittingly" be a publisher under the
strict publication rule leaving it to raise the defence of innocent dissemination (if it can). Eady J appeared to offer
a negative answer to this question by characterising Google Inc as a mere "facilitator" for communicating others'
content without human involvement. But such conclusion is doubtful in this jurisdiction in view of Ribiero PJ's
reasoning in Fevaworks Solutions Ltd.
96. Indeed, other parts of the Commonwealth jurisdictions have taken a different approach. But before I turn to
such cases, I should briefly mention
Budu v the British Broadcasting Corporation [2010] EWHC 616 (QB) ,88 which deals with the reverse situation
to Metropolitan International Schools Ltd. One of the issues in Budu was whether the originator of the defamatory
material would be liable for the publication of a search engine snippet. In that case, the claimant brought libel
proceedings against the defendant for three articles on its website. He also sued the defendant for "republication"
in respect of a snippet extracted from the second article which appeared with the hyperlink to it when a "google"
search was done on the claimant's name. It was held that the second article did not bear the meaning alleged by the
claimant, so there was no "republication". In coming to such conclusion, Sharp J followed Metropolitan
International Schools Ltd (ie the service engine operator could not be held liable for the snippet), but rejected the
claimant's argument that it must therefore follow that the defendant would be liable. He concluded that liability for
publication could not accrue by default,89 but observed (following Metropolitan International Schools Ltd) that a
search engine provider "might at some point be liable, if the publication of a defamatory search result (or a
"signpost to a conduit" ) continued after notification of the specific URL from which the words complained
of originated "90Again, this must also be read in light of the above observations on Metropolitan
International Schools Ltd with relevance to this jurisdiction.
97. As said, a different approach was taken in other common law jurisdictions. In
Trkulja v Yahoo! Inc LLC & Another [2012] VSC 88 ,91 the plaintiff claimed that a "yahoo" search using his
name returned results (article and images) that associated him with organised crime and criminal figures, which he
claimed was defamatory. The defendants by their defences pleaded that subject to the plaintiff establishing at trial
Page 18
that any person had downloaded and read the matter using the Yahoo! 7 internet search engine, they admitted they
published the matter to such person. The plaintiff called two witnesses at trial to give evidence that they had
downloaded and read the article using the defendants' internet search service. The defendants therefore conceded
they had published the articles to such persons.
98. In
Trkulja v Google Inc LLC & Another (No 5) [2012] VSC 533 ,92 the same plaintiff in Trkulja v Yahoo! Inc LLC
& anor claimed that a "google" 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 jury found Google Inc was a publisher
but an innocent disseminator until they received notification. Having concluded that Google Inc had knowledge of
the defamatory material after notification, the jury awarded the plaintiff AUD200,000 in damages.
Notwithstanding the jury's verdict, Google Inc applied for judgment on the argument that as a matter of law93 it
was not a publisher since it had not "consented to, or approved of, or adopted, or promoted, or in some way ratified,
the communication of the material complained of".94 However, Beach J distinguished the English authorities
(including Metropolitan International Schools Ltd), and concluded that since Google Inc's algorithmic processes
operated and generated content precisely as they intended, the requirement that an entity intentionally lent its
assistance to publication in order for such entity to be held responsible for the defamatory material was satisfied,
and on such basis he rejected the characterisation of Google Inc as an "internet intermediary" and held there was
basis for the jury to conclude they were a publisher for the purpose of defamation law.
99. Since the judgment of Beach J touched on an essential argument by Google Inc and Mr McCoy SC in the
present case, ie the automated nature of Google Inc's algorithmic systems and the lack of human input in
Google Search's search processes, I propose to set out his judgment in some detail:
16. "The plaintiff accepted (correctly in my view) that he had to establish that Google Inc intended to
publish the material complained of. While much was made by counsel for Google Inc of the fact that
there was no human intervention between the request made to the search engine and the publication of
search results, and of the fact that the system was 'fully automated', the plaintiff's point was that Google
Inc intended to publish everything Google's automated systems (which systems its employees created
and allowed to operate) produced. Specifically, the plaintiff contended that Google Inc intended to
publish the material complained of because while the systems were automated, those systems were the
consequence of computer programs, written by human beings, which programs were doing exactly what
Google Inc and its employees intended and required. On this basis, it was contended that each time the
material complained of was downloaded and comprehended, there was a publication by Google Inc (the
operator and owner of the relevant search engines), as intended by it. So it was submitted by the plaintiff
that Google Inc was a publisher throughout the period in respect of which complaint was made.

18. it was open to the jury to find the facts in this proceeding in such a way as to entitle the jury to
conclude that Google Inc was a publisher even before it had any notice from anybody acting on behalf of
the plaintiff. The jury were entitled to conclude that Google Inc intended to publish the material that its
automated systems produced, because that was what they were designed to do upon a search request
being typed into one of Google Inc's search products. In that sense, Google Inc is like the newsagent that
sells a newspaper containing a defamatory article. While there might be no specific intention to publish
defamatory material, there is a relevant intention by the newsagent to publish the newspaper for the
purposes of the law of defamation.
19. By parity of reasoning, those who operate libraries have sometimes been held to be publishers
for the purposes of defamation law. That said, newsagents, librarians and the like usually avoid
liability for defamation because of their ability to avail themselves of the defence of innocent
dissemination (a defence which Google Inc was able to avail itself of for publications of the images
matter prior to 11 October 2009, and all of the publications of the web matter that were the subject
of this proceeding).
20. As was pointed out by counsel for the plaintiff in his address to the jury, the first page of the
images matter .. was a page not published by any person other than Google Inc. It was a page of
Google Inc's creation - put together as a result of the Google Inc search engine working as it was
intended to work by those who wrote the relevant computer programs. It was a cut and paste
creation (if somewhat more sophisticated than one involving cutting word or phrases from a
newspaper and gluing them onto a piece of paper). If Google Inc's submission was to be accepted
then, while this page might on one view be the natural and probable consequence of the material
published on the source page from which it is derived, there would be no actual original publisher of
this page.

27. As the judgments in Bunt, Metropolitan Schools and Tamiz show, and as Eady J acknowledged
in Tamiz, the question of whether a particular internet service provider might be a publisher in
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respect of defamatory material published through or via or with the assistance of a particular
internet product is 'fact sensitive'. The facts in Bunt and Tamiz are substantially different from the
facts in the present case - such that the conclusions in those cases give no real assistance to the
resolution of the issue in the present case. The facts in Metropolitan Schools (involving a search
engine) are more applicable to the present case. That said, it is not possible for me to say whether all
of the evidence given in the present case was also presented to Eady J in the interlocutory
application that his Lordship was required to determine. Specifically, his Lordship does not appear
to have given any consideration to the fact that internet search engines, while operating in an
automated fashion from the moment a request is typed into them, operate precisely as intended by
those who own them and who provide their services. Additionally, his Lordship appears to have
been moved to come to his conclusion in part because of the steps taken in that case by the relevant
defendant (Google Inc) to block the identified URLs. This was a matter which, on the facts in the
present case, was not capable of bearing upon the issue of whether there was publication by Google
Inc as contended for by the plaintiff.
28. While much was made by Google Inc in the present case of Eady J's statements in Bunt and
Tamiz that an internet service provider who performs no more than a passive role cannot be a
publisher, those statements have to be seen in the light of the facts in those cases. To say as a general
principle that if an entity's role is a passive one then it cannot be a publisher, would cut across
principles which have formed the basis for liability in the newsagent/library type cases and also in
those cases where someone with power to remove a defamatory publication chooses not to do so in
circumstances where an inference of consent can be drawn.
29. Further, while on the facts in Bunt, the defendants were correctly described as 'internet
intermediaries' (whatever may be the legal consequences of such a description), it is, with respect,
doubtful that that same description can be applied to an internet search engine provider in respect of
material produced as a result of the operation of that search engine. That said, any such 'internet
intermediary' is, in any event, performing more than the 'merely passive role [of] facilitating
postings' (Cf Bunt).
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 Inc's conduct in operating a search engine'.
31. This submission must also be rejected. The question is whether, after relevant notice, the failure
of an entity with the power to stop publication and which fails to stop publication after a reasonable
time, is capable of leading to an inference that that entity consents to the publication. Such an
inference is clearly capable of being drawn in the right circumstances (including the circumstances
of this case). Further, if that inference is drawn then the trier of fact is entitled (but not bound) to
conclude that the relevant entity is a publisher. Google Inc's submission on this issue must be
rejected for a number of reasons, the least of which is that it understates the ways in which a person
may be held liable as a publisher."


100. Mr McCoy informs me there is a pending appeal against Beach J's judgment. He also asks me to approach
this case with caution because the judgment was concerned with an application to overturn a jury verdict in favour
of the plaintiff, and hence Beach J's focus was merely to consider whether the jury verdict was reasonably open to
a properly 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 principle in the English cases. He also attempts to distinguish Trkulja v
Google Inc LLC on the basis that it concerned images rather than autocompletions, and he reminds that Yeung's
claim is a novel one unsupported by the earlier authorities.
101. But Trkulja v Google Inc LLC is not a lone authority. It was followed by
A v Google New Zealand Ltd [2012] NZHC 2352 95 in New Zealand. In that case, defamatory statements
were posted on a website in the United States about the plaintiff, so when his name was "googled" the search
results included a hyperlink to the United States website with snippets extracted from such website which
contained defamatory material. The plaintiff asked the defendant to block the search results. This was done
on occasion, but it failed to prevent the information and hyperlinks from being republished. The defendant
applied for summary judgment and to strike out the claim on various grounds, including the argument that a
search engine provider was not responsible under the law of defamation for the words appearing 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
Page 20
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.
[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 plaintiff's complaint, it is inappropriate
to strike out that claim."


102. Mr Ng says that Goggle Inc ran similar arguments as in Trkulja v Google Inc LLC in the present case, but in
light of the reasoning 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 bearing in mind that in the present case (a) Google Inc has
conceded that they provided the search services upon accessing the Websites and (b) the Words were published on
such Websites owned and operated by Google Inc (and not on any third party platform), Mr Ng urges me to follow
the Australian and New Zealand jurisprudence which, he says, has overtaken the English cases and are consistent
with Fevaworks Solutions Ltd. Mr Ng submits that at the very least there must be a good arguable case that Google
Inc is a publisher of the Words on the Websites.
103. In my view, as a matter of law, it is plainly arguable that a search engine (including Google Inc) that
generates objectively defamatory materials by its automated processes is a "publisher" within the meaning as
explained in Fevaworks Solutions Ltd. It is also arguable that Google Inc by creating and operating its automated
systems that generate materials in the manner they and their staff intended satisfies the requisite mental element
for the act of publication, ie they provided the platform for dissemination and/or encouraged/facilitated or actively
participated in the publication with intent to assist in the process of conveying the impugned words to publishees,
and knowledge of defamatory content is not necessary (especially for an unwitting publisher who may in due
course wish to invoke the defence of innocent dissemination if it can). I have not forgotten that unlike the
non-publisher in Bunt Google Inc here is in the business of disseminating information, and it is arguable that they
fall within the broad traditional concept of "a publisher".
104. Indeed, this can be said to be a good arguable case given (a) the distinction drawn in Fevaworks Solutions Ltd
between the identification of a "publisher" which is strict (but subject to the defence of innocent dissemination if
applicable) and the Bryne principle for turning a non-publisher into a publisher upon knowledge and adoption of
the libel, and (b) the Court of Final Appeal's departure from the approach in Tamiz and other overseas authorities
that conflated the two concepts. I also bear in mind Beach J's suggestion that the English Court of Appeal in
Metropolitan International Schools Ltd did not have the benefit of the argument made to him that internet search
engines, while operating in an automated fashion, did so precisely as intended by those who own them 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 Solutions Ltd which lends support to such argument.
105. Mr McCoy SC places emphasises on the passivity rule (as explained above) in Bunt and Metropolitan
International Schools Ltd as well as Eady J's observations in Tamiz to say that an internet search engine who
performs a mere passive role cannot be a publisher. In my view, Beach J's countervailing observation that if this is
put forward as a general 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 common law principles of publication that one can
unwittingly become a publisher, and then one may (if one can) invoke the defence of innocent dissemination.
106. I agree with Mr Ng that the issue of whether an internet search engine is a "publisher" in respect of
Autocomplete and Related Searches suggestions is a controversial question in a developing area of law with
limited foreign authorities and complex interplay between such foreign authorities and the principles found in
Fevaworks Solutions Ltd. As explained above, the issue of whether a person or entity is a "publisher" is a matter of
mixed fact and law. Indeed, Beach J said this is fact 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 law should not be resolved
summarily, and the proper factual context should be elicited for determination of the law on actual and not
hypothetical basis.96 Ma CJHC (as he then was) in Noble Power Investments Ltd v Nessei Stomach Tokyo Co
Ltd [2008] 5 HKLRD 631
explained:97
18. "Often (and the present case provides such an example), there will be a dispute over whether a claim
does in fact come within one of the sub-heads of O.11, r.1(1). In such a situation, the court must be
satisfied there is a good arguable case that the claim does fall within one of the requisite sub-heads: see
Hong Kong Civil Procedure 2008, Vol.1 at pp.104-105 para.11/1/8. This test is applicable when there
are disputes of fact or issues of mixed law and fact. Where the dispute is a succinct one of law, this ought
to be resolved by the court even at the O.11 stage : see EF Hutton & Co (London) Ltd v Mofarrij [1989]
1 WLR 488 at p.495. I stress the word "succinct" as it may be inappropriate to go into complex questions
of law at the O.11 stage." (my emphasis)
Page 21


107. As a matter of interest (although I need not rely on this authority), Collins on Defamation (2014)98 cites the
case of
Rana v Google Australia Pty Ltd & Others [2013] FCA 60 99 decided shortly after A v Google New Zealand
Limited but before the hearing of the Summons. In Rana, the applicant complained of defamatory material
authored by the 2nd and 3rd respondents on websites hosted by Google Inc which also appeared as search
results in google.com and google.com.au. The applicant applied for leave to serve Google Inc outside
Australia, and for such purpose Mansfield J had to consider whether Google Inc could be considered the
publisher of the information. He discussed the English and Australian authorities and 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].

58. In short, whether or not a search engine could be considered a publisher of defamatory material
is not settled in Australia, and accordingly, it would not be appropriate to refuse to give leave to
serve the proceedings and on that basis effectively dismiss Mr Rana's claim against Google Inc: A v
Google New Zealand Ltd [2012] NZHC 2352, [69]."


108. On this note, I turn the facts presently before me in the affidavit evidence to ascertain the relevant factual
context to see if a good arguable case can be established that Google Inc is a publisher in respect of the Words on
the Websites.
(b) Facts
109. Here, the focus is on Google Inc's instrumentality to the publication of the Words on the Websites. The core
of Mr McCoy SC's submissions is that Google Inc adopts an algorithmic based approach that requires no human
input, operation and/or manipulation in the search processes for the results to appear, and as such Google Inc is a
mere passive facilitator within a legal safe harbour for avoiding liability for defamatory suggestions. Mr McCoy
SC says Google Inc cannot police the huge volume of webpages on the internet and is not under a duty to do so 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 placed on the web that are linked to by Google Search as a result of 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 results (which are more akin to hyperlinks as discussed in Crookes) are displayed exclude any intent to
publish with knowledge, ie to defame.
110. Mr McCoy SC submits that Google Search operates by using algorithms to simply present webpages to the
users without any human assessment of the correctness, credibility or reliability of the information presented, and
Google Search's users understand that Google Inc is not making any representations to them about whether the
webpage content is truthful. Mr McCoy SC argues that as a matter of logic, the conjunction of keywords in the
presentation of predictions and related terms displayed by the Autocomplete and Related Searches features are not
meaningful statements or words/thoughts attributable to Google Inc, especially when they are not even aware of
such predictions or search results that appear each time a search is conducted.
111. In light of this expressed lack of control, Mr McCoy SC contends that the Autocomplete and Related
Searches functions are neutral tools, and their results do not attribute negative connotations to any individual or
entity. It is suggested that both "Albert Yeung Triad" and "Police Commissioner Triad" as autocompletions do not
impute triad connections and/or defamatory views. The predictions and related search terms are just a "snapshot"
reflection of data relating to the queries previous users have input (for any number of reasons) to find web content
as well as the content of the webpages indexed by Google Search, and it is for the users to make of it as they wish.
This, it is said, distinguishes such functionalities from internet discussion blogs/forums where members can freely
post comments that may be defamatory.
112. Mr McCoy SC submits that since (a) the dynamic algorithmic processes merely generate preliminary
indicative-only predictions and/or suggestions for search (which is final objective) and not the ultimate content of
the search results, (b) the variability of the resulting suggestions is responsive to changes in statistical interest in
the subject matter on a worldwide basis and (c) the ultimate content of the search may either confirm or dispel
rumours, the Autocomplete and Related Searches suggestions cannot constitute dissemination of information. In
the example cited in the above paragraph, the eventual search results may confirm or deny triad connections, or
otherwise reveal bad character or show exemplary character.
113. Mr McCoy SC argues that since the alleged defamatory activity is created solely by automatic and
Page 22
independent algorithmic processes that (a) draw from the universe of previous users' searches and also from
worldwide web content (with human input limited to the implementation/maintenance of the algorithms
themselves), (b) interpret "google" search activity, and (c) ensure the Autocomplete and Related Searches
functions turn up the most relevant or at the every least the most commonly or frequently searched results, it
would be impossible for Google Inc to manually interfere with or monitor the search processes given the billions
of searches conducted by Google Search and the mass of information Googlebot "crawls" over each day. Mr
McCoy SC submits 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. Such infinite duty is a much greater task than removal of
postings from an internet discussion forum, and it should not be foisted on Google Inc. He says this is what
distinguishes Google Search from an internet blog/forum that comprises a closed group of registered members
who agree to abide by forum rules and where the owner has the capacity and/or responsibility for editorial control
over content.
114. Mr Ng, on the other hand, focuses on the issue of notification and removal, and complains that Google Inc
has not responded to the 1st and 2nd Letters, has failed to remove the Words from the Websites, and has continued
to publish or cause to be published the Words during the Period when they clearly knew and/or ought to have
known of the presence of the Words on the Websites.
115. In my view, on the factual aspects as evident from the affidavit evidence, the analysis of Google Inc's liability
for Autocomplete and Related Searches results is concerned with the question whether they are an information
provider with a neutral tool or whether they act beyond the scope of simply making information publicly
available.
116. Unlike the writer of a letter, Google Search does not display the predictions or suggestions first-hand. Search
autocompletions are reconstituted aggregations based on what other users at one time have typed as search queries
into Google Search. By its algorithmic processes, Google Search recombines and aggregates data from web
content and previous typed search queries, and transforms such data into Autocomplete and Related Searches
suggestions by focusing on multiple factors set by Google Inc through the algorithms they designed, revised and
improved. Google Inc acknowledges that Google Search's algorithms use ranking factors to organise or "rank" all
searchable content available from the content providers to determine which websites are the best sources of
information for the search request made by the user. They also employ dedicated engineers to evaluate search
quality on a full-time basis and to constantly finesse their algorithms to improve the search process. In short,
Googlebot is constantly being reviewed, revised and improved by Gooogle Inc. Based on such experimentation,
evaluation and analysis, in 2010 Google Inc launched 516 improvements to search.
117. In this sense, whilst Google Search's algorithms weigh several factors that may be outside its control (eg
information posted on the internet, search queries made by other users and/or search selections the users may
ultimately pick) to generate the suggestions, its algorithms are synthesising and reconstituting input query data by
previous users and web content uploaded by internet users before publishing them as suggestions. It is therefore
arguable that Google Search does not simply convey information, but its Autocomplete and Related Searches
features act by providing information distilled pursuant to artificial intelligence set up by Google Inc themselves
by virtue of the algorithms they have created and maintained to actively facilitate the search processes. This raises
a question as to whether or not Google Inc is a neutral tool, and whether or not the Autocomplete or Related
Search suggestions are merely machine-generated and non-meaningful jumble of keywords. Notwithstanding Mr
McCoy SC's persuasion, I bear in mind that for the purpose of the Summons, Google Inc does not take issue that
the Words are defamatory of Yeung.100
118. It is also evident on the affirmation evidence before me that Google Inc is capable of censoring material.
Google Inc acknowledges that on occasion it manually edits results "to improve the user experience". To tackle
security concerns, it may remove "pages from our index (including pages with credit card numbers and other
personal information that can compromise security) " It may also intervene in the search results for legal
reasons, eg to remove "child sexual-abuse content or copyright infringing material (when notified through
valid legal process " It can also make manual exceptions when their algorithms falsely identify sites, ie
"mistakenly [catch] websites" that should not have been identified. It also takes automated and manual actions to
remove spam, eg attempts to "game their way to the top of the results" by a technique known as "keyword
stuffing". In light of the above, there may be room for 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. It has been suggested that a key consideration is that automation means Google Inc is not even aware of the
predictions or search results generated let alone any analysis of content, which therefore excludes any intent to
publish with knowledge, ie to defame. But under the strict publication rule, the requisite mental element is not
knowledge of the defamatory content or any intent to defame, but rather whether the defendant has actively
facilitated or intentionally assisted in the process of conveying the material bearing the defamatory meaning to a
third party, regardless of whether he knew that the material in question is defamatory.
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120. This brings the arguments back to a more fundamental question (when shed of the modernity and complexity
of the internet): as a matter of general tort principle, should or should not a person/entity remain responsible in law
for acts done by his/her tool, and what are the limits of such liability (if any)? This question underlies the
reasoning in Trkulja v 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 being their tool for carrying out their intended purpose, and
whether they can raise any innocent dissemination defence is a separate matter.
121. Neither counsel has cited any other authority apart from 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 identifying "a
publisher", there is plainly a good arguable case that Google Inc is more than a passive facilitator vis--vis their
Autocomplete and Related Searches features.
122. Solely as a matter of interest (but there is no need for me to rely on this authority), I note that just before
Trkulja v Google Inc LLC was decided, the Supreme Court of British Columbia in Century 21 Canada Limited
Partnership v Rogers Communications Inc & Another doing business as Zoocassa Inc 2011 BCSC 1196
101 made some relevant observations. In that case, Century 21 and two individual real estate brokers sued
Zoocasa and its parent company Rogers due to Zoocasa's indexing and "webcrawling" of the website
operated by Century 21 featuring its brokers' property listing. Zoocasa operated a "vertical" search engine
that indexed property listings 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 for use on its own website, which
act violated the Terms of Use of Century 21's website. The court found Zoocasa liable for copyright
infringement and breach of contract, but Rogers was not liable for Zoocasa's actions. The court found
Zoocasa had agreed to the Terms of Use when it employed a search engine to crawl and fetch portions of
Century 21's website. In a lengthy judgment, Punnett J said:
[127] "Does the fact that Internet search engines access sites such as those of Century 21 using
search engines, crawlers and robots change the legal situation? In my view it does not.
[128] The involvement of a machine in the contractual process was considered by Lord Denning
long before the ubiquitous presence of personal computers and the Internet.
[129] A machine or a computer and the software that runs it has at some point been
constructed and programmed by an individual. As noted by Sookman at 10.5: an electronic agent,
such as a computer program or other automated means employed by a person, is a tool of that person.
Ordinarily, the employer of a tool is responsible for the results obtained by the use of the tool since
the tool has not independent volition of its own. When computers are involved, the requisite
intention flows from the programming and use of the computer.
I agree with this statement. Liability is not avoided by automating the actions in question."

For completeness, I note that the indexing by Zoocasa's "vertical" search engine was not fully automated. The
initial access was done manually by Zoocasa's employee, but once the indexing was set up, it was automatically
repeated daily.
123. In all the circumstances, the point of law is novel and of such importance that it should, in my opinion, be
determined in its proper factual context at trial. I find it is an open question whether Google Search's role in
displaying Autocomplete and Related Searches suggestions upon entering a few keystrokes of an individual's
name is entirely passive such that it is a mere conduit or neutral distributor unaware of the presence of material
that may have defamatory imputation, or whether they are subject to liability and responsibility as being more
than just that.
124. The internet is constantly evolving, and it is to be expected 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 coming to my
conclusion above, it may assist the parties in their future conduct of the present action if I refer to the recent
Canadian case of Equustek Solutions Inc & Another v Morgan Jack & Others 2014 BCSC 1063
.102
125. In that case, the Supreme Court of British Columbia granted an interim injunction against Google Inc
ordering it to stop indexing or referencing certain websites in its search results on a worldwide basis. In that case,
the plaintiffs obtained court orders against the defendants that operated a "virtual company" and their websites
were the subject of prohibitory court orders and yet they continued to sell their products on 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 defendants' ongoing breach of the court's orders.
126. Felon J in his judgment considered a number of issues in relation to internet search engines and had this
to say about Google Inc's argument that it merely offered a passive website for users who wished to search
the internet:
[47] "Google submits that it merely offers a passive website to residents of British
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Columbia who wish to search the internet. It argues that its programs automatically generate search
results without Google being actively involved in the particular search. Paragraph 23 of Google's
written submissions state:
[23] Google's internet search engine allows users to enter key-words and then Google generates
a list of results in a specific ranked order. Google's search results are computer generated through
the use of Google's highly confidential and proprietary algorithm and methodology. Google's web
crawler program (referred to as "Googlebot") reviews the content that is available on trillions of
webpages or URLs over the internet. Search results are generated based on that content [within
seconds].

[48] I conclude that Google's internet search websites are not passive information sites. As
a user begins to type a few letters or a word of their query, Google anticipates the request and offers
a menu of suggested potential search queries. Those offerings are based on that particular user's
previous searches as well as the phrases or keywords most commonly queried by all users. As James
Grimmelman writes in "The Structure of Search Engine Law" (2007-2008) 93 Iowa L Rev 1 at
10-11: Search engines are also increasingly learning from the large volumes of query data they have
accumulated. A user's history of queries can provide useful information about her probable
intentions -- for example, whether she tends towards navigational or transactional queries. Similarly,
search engines gain useful feedback into their own successes and failures by seeing which results
users click on or by noticing long strings of searches on related terms, which may indicate that the
user is having trouble finding what she's looking for.
[49] Google collects a wide range of information as a user searches, including the user's IP address,
location, search terms, and whether the user acts on the search results offered by "clicking through"
to the websites on the list."


127. I further note that Google Inc has successfully applied for leave to appeal against Felon J's judgment on the
basis that the appeal cannot be said to be without merit and the issues on appeal are novel and important. However,
Wilcock J of the Court of Appeal for British Columbia dismissed Google Inc's application for interim stay as they
were unable to demonstrate that irreparable harm would likely be incurred pending the hearing of the appeal.103
128. In Equustek, Google also raised arguments similar to Mr McCoy SC's contentions:
[136] "First, Google says that it provides an important and valuable tool for navigating hundreds of
trillions of webpages on the internet. Google argues it cannot, as a practical matter, monitor content
or arbitrate disputes over content because of the enormous volume of content; because it cannot
determine whether information is inaccurate or lawful; and because content on websites is
constantly changing so even if Google could form judgments about the content of sites on its index
at any given moment, those judgments would be obsolete moments later."

But Felon J noted that the issue as to whether Google Inc is a passive indexer with no control over content has
been the subject of litigation in 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 Inc v Agencia Espaola de Proteccin de Datos
(AEPD) and Mario Costeja Gonzlez C-131/12
104 (which grappled with a number issues including whether Google Inc was a "controller" of data obtained with
the assistance of the Google search platform in Spain which resulted in answers that are mostly against the
interests of Google Inc).105 In Equustek, the arguments raised by Google Inc did not prevent Felon J from
granting the interim injunction (although his decision is now pending appeal).
(c) Striking a balance
129. Mr McCoy SC drew my attention to article 27 of the Basic 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) of the
International Convenant on Civil and Political Rights incorporated via article 39 of the Basic Law (see article 16
of the Hong Kong Bill of Rights Ordinance Cap 383 ("BORO")). Article 16(2) of the BORO provides that
"Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and
impart information and 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 paragraph (2) of this article carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by
law and are necessary - (a) for respect of the rights or reputations of others; "
130. Mr McCoy SC submits that since the Human Rights Act 1998 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
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restriction that amounts to a disproportionate restriction on freedom of expression",106 which approach has
been upheld by the European Court of Human Rights in Times Newspapers Ltd v The United Kingdom (Nos 1
and 2) [2009] ECHR 451
.107 In order to be proportionate, restrictions on the freedom of expression will need to be convincingly
established by a compelling countervailing consideration, and the means employed would have to be necessary
and proportionate to the ends sought to be achieved.
131. In Times Newspapers Ltd, the Times published two defamatory articles in its newspapers and on its website.
The claimant sued for defamation and in the course of those proceedings; he brought a second action for
defamation in relation to the continuing internet publication of the articles that remained on the defendant's
internet archive. The defendant complained of the chilling effect of the Duke of Brunswick rule that allowed
multiple actions to be maintained for publication of the same article, which they claimed was a breach of their
rights under article 10 of the Human Rights Convention. The European Court of Human Rights reiterated the
importance of freedom of expression, but recognised that article 10 does not guarantee a wholly unrestricted
freedom of expression even in matters of serious public concern, and the duties and responsibilities under article
10(2) assume significance when information imparted is likely to have a serious impact on the reputation and
rights of private individuals.108 In that case, the court found there was no violation of article 10, and the domestic
court's finding of libel was a justified and proportionate restriction to freedom of expression.
132. In Jameel (Mohammed) & Another v Wall Street Journal Europe Sprl [2007] 1 AC 359
,109 Lord Bingham of Cornhill referred to article 10 of the Human Rights Convention which is reflected in
section 12 of the Human Rights Act 1998, and said:
18. "Freedom to publish free of injustifiable restraint must indeed be recognised as a distinguishing
feature of the sort of society which the Convention seeks to promote.
19. as the text of article 10 itself makes plain, the right guaranteed by the article is not
unqualified. The right may be circumscribed by restrictions prescribed by law and necessary and
proportionate if directed to certain ends, one of which is the protection of the reputation and rights
of others. Thus a national libel law may, consistently with article 10, restrain the publication of
defamatory material.

24. The tort of defamation exists to afford redress for unjustified injury to reputation. By a
successful action the injured reputation is vindicated. The ordinary means of vindication is by the
verdict of a judge or jury and an award of damages. "


133. In Crookes, the majority referred to the important role of the internet in promoting freedom of
expression, and the importance of hyperlinks in facilitating access to information on the internet. Abella J
said:110"The Internet cannot, in short, provide access to information without hyperlinks. Limiting their
usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting
the flow of information and, as a result, freedom of expression. The potential "chill" in now the Internet
functions could be devastating, since primary article authors would unlikely want to risk liability for linking
to another article over whose changeable content they have no control. Given the core significance of the role
of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication
rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of
modernity."

Quite apart from whether the move away from the strict publication rule is consistent with the reasoning in
Fevaworks Solutions Ltd, Abella J also recognises the enormous damage that the internet can do to a person's
reputation by citing the following article by Professor Lyrissa Barnett Lidsky:111"Although Internet
communications may have the ephemeral qualities of gossip with regard to accuracy, they are communicated
through a medium more pervasive than print, and for this reason they have tremendous power to harm
reputation. Once a message enters cyberspace, millions of people worldwide can gain access to it. Even if the
message is posted in a discussion forum frequented by only a handful of people, any one of them can
republish the message by printing it or, as is more likely, by forwarding it instantly to a different discussion
forum. And if the message is sufficiently provocative, it may be republished again and again. The
extraordinary capacity of the Internet to replicate almost endlessly any defamatory message lends credence
to the notion that 'the truth rarely catches up with a lie'. The problem for libel law, then, is how to protect
reputation without squelching the potential of the Internet as a medium of public discourse."

134. Mr McCoy SC submits that it is essential to strike a proper balance between the right of freedom of
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expression and the need for protection of individual reputation, and the courts in Hong Kong should let the law of
defamation develop in a manner which is compatible with constitutional rights. Mr McCoy SC says that since
Google Inc cannot check or audit the truth or accuracy of the huge amount of information over which an
automated search engine crawls, to hold Google Inc liable for their automatically and passively generated
suggestions would be a disproportionate restriction on the freedom of expression bearing in mind (a) the extent to
which relevant material has already become available to the public, (b) the effect of imposing liability on a search
engine for signposting websites that publish defamatory material (ie it will make it more difficult for the public to
find out about these websites), and (c) the important public interest in publication without being subjected to
censorship consistent with the constitutional right to receive and impart information and which accords with the
momentum and realities of the internet age and the needs of access to information and receipt of open knowledge.
135. The issue of the constitutional right of freedom of expression has been discussed in Fevaworks
Solutions Ltd. Ribeiro PJ referred to the following observations by Lord Hobhouse in Reynolds v The Times
Newspapers & ors and article 16 of the Bill of Rights to say that a purveyor of libellous statements cannot
claim constitutional protection for his conduct:112" There is no human right to disseminate information
that is not true. No public interest is served by publishing or communicating misinformation. The working of
a democratic society depends on the members of that society, being informed not misinformed. Misleading
people and the purveying as facts statements which are not true is destructive of the democratic society and
should form no part of such a society. There is no duty to publish what is not true: there is no interest in being
misinformed. These are general propositions going far beyond the mere protection of reputations."

136. But Ribeiro PJ also recognised the importance of society's interest in freedom of speech and the free
exchange of information and ideas (whether or not that information and those ideas find favour of any
particular part of society), and the need to bear in mind competing social interests when approaching
internet-related disputes:113
111. " The value of free and open many-to-many communications on discussion platforms
must be recognized. The ability of internet intermediaries to host them in good faith must not be
unduly impaired by the imposition of unrealistic or overly strict standards which would make
commercial operation impossible or introduce a chilling effect discouraging free and open
exchanges. At the same time, a platform provider must genuinely recognize and take all reasonable
steps to protect the rights and reputations of persons from being unlawfully damaged by postings
published on the forum. "


137. Mr Ng submits the Words are extremely serious and highly defamatory of Yeung.114 Google Inc concedes
that for the purpose of the 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 Mr Ng says that for the purpose of the Summons
the Words are presumed to be false. Mr Ng also reminds that by virtue of the 1st Letter, Google Inc has knowledge
of the presence of the Words on the Websites, and it is proportionate to require them to take down the offending
Words after notice, which achieves the proper balance between the freedom of expression and the protection of
reputation.
138. Mr McCoy SC submits that since Australia, unlike Hong Kong and Europe, has no Bill of Rights and its
constitution does not deal with the substantive rights relating to freedom of expression and freedom to receive and
impart information, the local position is distinguished from Trkulja v Google Inc which is a decision by a single
judge in Australia, and I should read that judgment with caution.
139. However, I note that in A v Google New Zealand Ltd, the 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 consistent
with the right of freedom of expression. It was said that "it would be an unreasonable limit upon that right to
hold that the automatic generation of search results amounts to publication. Search engine operators are,
according to the defendant, an invaluable gateway to the internet, performing a vital role in the dissemination
of information. Liability as a publisher would have a "chilling" effect and would thus adversely affect users'
access to information". Abbott J said:
[72] "Whilst the right to freedom of expression as protected by the NZBORA ought to be
considered in the development of the law in this area, it may not be an unreasonable limit upon that
right to hold that a search engine is a publisher of both specific URLs and words that appear in
snippets (which search engine providers have chosen to include and which elevate hyperlinks
beyond the status of mere footnotes).
[73] This could mean that search engine providers would be responsible where an offending
hyperlink is deactivated but its snippet continues to appear, thus addressing one of the plaintiff's
concerns. Such an approach is consistent with the broad common law definition of "publication" as
Page 27
being the communication of a statement to just one other person. To limit this definition to exclude
the repetition of information where that repetition occurred without human input unnecessarily
confuse this area of the law. It may therefore be more appropriate to hold that a search engine is a
publisher but with access to the defence of innocent dissemination. The possibility of a defence in
innocent dissemination where the defendant has not had notice of the defamatory material may be
sufficient recognition of the fact that a search engine is a neutral index. However, these decisions
need to be made with all available facts before the Court and with the benefit of legal argument
more specifically focussed on the points than was possible on this application.
[74] The plaintiff's concern that removal of specific web pages and deactivation of the hyperlink
appears to be an impotent response may turn out to be a matter more suited to determination by
legislation."


140. I share Abbott J's observations, and find that in the search for the proper balance between freedom of
expression and protection of reputation, there is debate as to whether holding Google Inc to be a publisher of the
Autocomplete and Related Searches suggestions under the broad traditional concept of "a publisher" is an undue
restriction of the right to freedom of expression, especially when it is open for Google Inc (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 agree that any decision on this should be made in the proper factual 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
there is a good arguable case to Yeung's claim.
(d) Summary
141. To conclude, there is a good arguable case that Google Inc is 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.
VIII. SERIOUS QUESTION TO BE TRIED
(a) Real and substantial tort or Jameel abuse of process
142. On whether there is a serious question to be tried, one argument advanced by Mr McCoy SC is that there is no
evidence of real and substantial readership in Hong Kong capable of damaging Yeung's reputation. He says the
evidence that Yeung's staff and/or legal team have accessed the Words on the Websites merely demonstrates that
such access 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 Yeung's reputation. In such circumstances, the potential damage (if any) is too trivial to merit
maintenance of these proceedings in Hong Kong. Mr McCoy SC cites Jameel (Yousef) to say that the Leave Order
should be set aside on the basis that "the game is not worth the candle".116
143. Mr Ng says there is no basis for Google Inc to say there is no substantial damage to Yeung's reputation
because in a libel action general damage is presumed.117 But as explained in Gatley, the presumption of 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 expression that is not necessary for the protection of the claimant's reputation, which
may render the action susceptible to being struck out as an abuse of process.
144. But Mr Ng goes further to say that Jameel abuse of process 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 Chong Lai Wah &
Another CACV 212/2007
unreported,119 but in that case Tang VP (as he then was) 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 the English approach
had not been canvassed.120 However, since Wong Wing Ho, Hong Kong has undergone the Civil Justice Reform.
In Jotron AS (formerly known as Jotron Electronics AS) v Stanley Chang trading as Hong Kong Instech Trading
Co HCA 378/2010
,121 Sakhrani J distinguished Jameel (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 Act 1996, which provides that the court
may dismiss the claim if it appears to the court it has no realistic prospect of success and there is no reason why it
should be tried. There is no similar provision in Hong Kong.
145. It is true that Jameel abuse of process was brought up in a striking out application by the defendant in Jameel
(Yousef). This is not directly relevant here because the Summons does not seek to strike out Yeung's claim against
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Google Inc. However, Mr McCoy SC's complaint of minimal publication and no substantial damage remains
relevant in the context of an application to set aside service outside jurisdiction on the basis that the alleged libel
does not reach the threshold of seriousness required to establish a real and substantial tort that has been committed
within the jurisdiction. This was the alternative approach in Jameel (Yousef).122 Indeed, there is jurisprudence on
this approach since as early as in 1937:
Kroch v Russell et Cie Socit des Personnes Responsibilit Ltd [1937] 1 All ER 725 123 and
Chadha v Dow Jones & Co Inc [1999] EMLR 724 124 cited in Jameel (Yousef).125 Indeed, in the pre-Jameel
local case of Investasia Limited & Another v Kodansha Co Ltd, HCA 12519/1997
, unreported126 which has not been cited by counsel but which Clark must be familiar since he was also
professionally involved in that case, a Japanese national was permitted to sue two Japan-based defendants in
relation to material published in Japanese both on the internet and in a magazine with very limited
distribution in Hong Kong. The learned judge considered the plaintiff had sufficient business connections
with Hong Kong (including spending 4-6 months a year here) to have established a reputation here that
deserved protection. "If a plaintiff has a reputation in Hong Kong, as the plaintiffs in this case have
undoubtedly established they have, it is not right to tell him to go elsewhere to vindicate that reputation."127
In that case, 500,000 copies of the magazine were published of which 157 copies were distributed in Hong
Kong. Findlay J regarded the 157 copies distributed in Hong Kong as a significant number, especially when
the alleged defamatory material was sensational and juicy and in the nature of things likely to spread from
mouth to ear quickly amongst those who might do business with the plaintiff, and said:
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."


146. Since Google Inc in the Summons does not ask for Yeung's claim to be struck out, whether for abuse of
process or otherwise, I am prepared to consider Mr McCoy SC's core complaint of minimal publication and no
substantial damage as going to the question of whether there is any real and substantial tort that justifies service
out of jurisdiction, bearing in mind the underlying objectives of the Civil Justice Reform and the right to freedom
of expression.
147. Mr Ng's contention of a real and substantial tort premised on substantial publication/damage rests on three
matters: (a) there is sufficient basis in the Hom 1st Aff for the court to infer substantial publication, (b) the Yuen
Aff provides ample evidence of substantial publication, and (c) in view of the seriousness of the defamatory
imputations of the Words, character vindication and not money is a significant objective.
148. I start with a short description of the statistical calculations in the Yuen Aff. Yuen explains that by using
Google AdWords128 and Google Trends129 a registered user can obtain the monthly average number of "google"
searches done for any particular keyword(s) in any specified location (ie the Monthly Search Volume) and the
popularity of any particular keyword relative to the total number of "google" searches over time (ie "Relative
Popularity" or index score), and then calculate the estimated number of "google" searches conducted against any
particular keyword(s) in a specified location for any selected month (within the period of the past 12 months).
149. On 6 February 2013, Yuen accessed Google AdWords and Google Trends to obtain the Monthly Search
Volume and Relative Popularity of the search Keywords, and made calculations as to the estimated number of
"google" searches for such keywords in Hong Kong for July 2012. The "Local Monthly Searches" (
)130 for "", "Albert Yeung" and "Albert Yeung Sau-Shing" in Hong Kong are 6,600, 1,000 and 260
respectively. By multiplying such "Local Monthly Searches" by 12, the estimated annual search volume of such
Keywords are 79,200, 12,000 and 3,120 respectively. 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. Based on such information, the estimated number of "google" searches made for "" in Hong Kong for
July 2012 (being the full month immediately before the WoS was issued) is calculated as 7,955 pursuant to a set
formula. But the Relative Popularity of keywords "Albert Yeung" and "Albert Yeung Sau-Shing" for July 2012
are not available from Google Trends because there is "not enough search volume to show graph", so Yuen cannot
calculate the estimated number of "google" searches for such keywords for July 2012. But the approximate
12-month average number of "google" searches for such keywords can still be gathered from Google AdWords.
The Local Monthly Searches for keywords "Albert Yeung" and "Albert Yeung Sau-Shing" are 1,000 and 260
respectively.
151. For the purpose of the Summons, Google Inc does not take issue with the numbers produced by Yuen as
being applicable to searches performed on the .com.hk Website, but Mr McCoy SC raises the following
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contentions:
(a) The Yuen Aff that seeks to analyse/calculate the estimated number of "google" searches made in
Hong Kong for the Keywords has not been placed before the court at the ex parte stage, and is only
presented in answer to the Summons to patch up the inadequacy of the Hom 1st Aff at the ex parte stage.
(b) Even on Yeung's best case, there were only about 8,000 "google" searches for "" in July 2012.
The 7,995, 1,000 and 260 searches against the Keywords are "trivial" when compared with more than
one billion searches conducted daily using Google Search and also with the daily circulation of 251,895
copies and 108,047 copies for Apple Daily and South China Morning Post respectively.
(c) The same person can conduct the same search multiple times thus skewing any count of search results,
so the fact that 7,995 searches have been done does not mean that 7,955 separate users performed and
saw the results of 7,955 searches.
(d) Just because users searched the Keywords does not mean they saw the predictive suggestions
complained of. It cannot be said with any degree of certainty that on a given day the Autocomplete and
Related Searches suggested results for particular search terms will be the same as those conducted on
another occasion, and Yeung has not provided evidence of the number of times the predictions have been
displayed.
On such basis, Mr McCoy SC says there cannot be any inference of real or substantial publication.
152. Mr Ng says the evidence as to searches done by the IT Dept and ILL and/or the statistical evidence in the
Yuen Aff demonstrate that (a) when searches were made with the Keywords at the Websites, Google Search
would instantaneously and automatically generate the Words as autocompletions and related search terms, and (b)
there is inference for substantial publication of the Words which were available for downloading on 6 August
2012 by all members of the public in Hong Kong who had access to the internet. As explained in the Hom 2nd Aff,
Yeung has significant connection with, and a reputation to protect, in Hong Kong. Since "googling" is a
commonplace mode to gather information nowadays, it is highly probable that any person who wants to do
business with or find out more about Yeung would "google" him, which service is free to anyone who has access
to the internet, and the Words would have been accessible to anyone who typed Yeung's name into the Search Box
on the Websites.
153. Mr Ng submits that on this basis together with Yuen's statistics that 7,995, 1,000 and 260 searches had been
made against the Keywords in July 2012 alone, the inference of substantial publication to third parties is
irresistible. He adds that since Google AdWords and Google Trends are Google Inc's own internet service tools,
Google Inc is well-positioned to acquaint themselves with information they possess of the number of searches
made against the Keywords over any given period. Instead, they have chosen to withhold such information and to
file the Summons, which is against the spirit of the underlying objectives in Order 1A of the RHC to ensure
fairness between the parties.
(b) .com and .com.tw Websites
154. Before I deal with the scale of publication, I shall address a 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 Yeung's 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. 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 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 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
can be manually overridden by the user by specific action to prevent such redirection from happening again. This
country specific service and redirection process is not applied to every country worldwide; in some countries
where internet service is poor this service/process is not applied. The purpose of such redirection is to make search
results more relevant to users who will get a general product experience appropriate to their country. The search
quality algorithms consider a user's country (as specified by domain) and work out what content is likely to be
most relevant to that user. A user of, say, the .com.tw website will see content that is relevant to his/her location,
eg if a search is conducted for pizza from a IP address Google thinks is in Taipei, map results with pizza
restaurants in Taipei will be shown. The same is not true if the same user, located in the same place, uses the .com
Website.
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 provided with search predictions or search results from the .com and .com.tw Websites
without deliberately altering his/her settings so as to prevent redirection to the com.hk Website. He complains that
the SoC and the Hon 1st Aff do not distinguish between the Words provided as search predictions and/or related
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search items by reference to each of the three Websites. Therefore, it cannot be inferred, particularly with regard
to the .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 sustained in this jurisdiction, without actual evidence from a third party
who has deliberately bypassed Google Inc's redirection function and accessed these two Websites.
157. Mr McCoy SC submits that given Clark's explanation of 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 himself
from the .com.hk Website to the .com and .com.tw Websites, none can be inferred because manual intervention is
required. In the circumstances, there is no serious question to be tried in respect of Yeung's claim concerning the
Words on the .com and .com.tw Websites.
158. I agree with Mr Ng's three-fold answer. First, the Hom 1st Aff and Yuen Aff confirm that searches have been
conducted in Hong Kong against all three Websites and not just the .com.hk Website.
159. Secondly, Clark himself confirms that such redirection can be manually overridden so that the automatic
redirection will not happen again, which confirms that the .com.hk and .com Websites can be assessed from Hong
Kong. Indeed, since Google Search can be used by entering the name of any of the worldwide domains into a web
browser, there should be no logical difficulty for an internet user simply to type a search query in the Search Box
to look for the .com Website and/or .com.tw Website, and upon access to carry out internet search at such
Website(s) without having to alter settings to prevent all future automatic redirection to the .com.hk Website.
160. Thirdly and more significantly, Mr Ng argues that such explanation by Clark is inadmissible because he has
failed to expressly stipulate the sources and grounds of his information and belief in respect of his assertion that
search queries made in Hong Kong are automatically redirected to the .com.hk Website as required under Order
41 rule 5(2) of the RHC. Mr Ng reminds that Clark is Google Inc's solicitor, who does not say he has personal
knowledge of the technical operation of the Google Search engine, which matters should logically be within the
knowledge of Google Inc.
161. 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 information or belief,
is irregular and therefore inadmissible as evidence, whether on an interlocutory or final application.132 In Korea
Sonbak Shipping Co v Charter Harvest Shipping Ltd [1994] 1 HKC 494 ,133 whilst affirming Leung Kin Fook &
Others v Eastern Worldwide Co Ltd [1991] 1 HKC 55
,134 the court took a pragmatic approach where a deponent of an affidavit used in interlocutory proceedings
deposed that certain documents supplied to him were the source of his information and belief. It is said that Order
41 rule 5(2) of 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 either does so or provides an explanation for not doing so which the court
regards as acceptable.135
162. In my view, there is force in such argument. When Google Inc issued the Summons, given the nature of the
application made under Order 12 rule 8 of the RHC which if successful puts an end to Yeung's claim in this
jurisdiction, Google Inc would have expected it to be contested. Since the subject matter of automatic redirection
of search queries by Google Inc is raised by them and is not a matter that arises from Yeung's case, it is incumbent
on Google Inc to abide by the rules in order to properly place before the court the explanation they now seek to put
forward. It is therefore necessary for Clark to comply with Order 41 rule 5(2) of the RHC, indicating with
reasonable particularity the sources of his information. It cannot be said that Google Inc is unaware of such duty
for (a) the Clark 1st Aff exhibits documents to support Clark's explanation as to the operation of Google Inc's
search engine, and (b) the Clark 2nd Aff specifies that where facts and matters in that affidavit are not within
Clark's personal knowledge his source of knowledge is Henry Lien, associate product counsel employed by
Google Inc. Google Inc has therefore failed to adduce admissible evidence to suggest there is no search activity
with respect of searches made with the Keywords for the .com and .com.tw Websites.
(c) Scale of publication
163. This nicely brings me to the question of whether the scale of publication of the Words in Hong Kong is so
minimal and the reputational damage so trivial that there is no real and substantial tort to support the requisite
seriousness to justify service out of jurisdiction.
164. Publication is mixed question of fact and law, and it must depend on the circumstances of each case whether
or not publication has taken place.136 In internet cases, there is no presumption of substantial publication.137 But
where the claimant proves that the impugned material has been published to one or more persons, it may be
inferred that the material (if easily accessible) has been published more widely within the jurisdiction.138
165. In
Loutchansky v Times Newspapers Ltd (No 2) [2001] EMLR 876 ,139 the claimant sued for libel in respect of two
articles published in The Times and its website which accused him of being engaged in serious international
criminal activities. Gray J approved the following passage from Gatley: "It is not necessary in all cases to prove
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that the libellous matter was actually seen and read by some third party. If it is a matter of reasonable inference
that this has happened a prima facie case of publication will be established." 140
166. In
Steinberg v Pritchard Englefield & Another [2005] EWCA Civ 288 ,141 the claimants sued over a letter published
by the defendant on the internet that alleged they artificially and unprofessionally inflated their solicitor and client
costs. That letter was accessible to anyone who fed the claimants' names into a standard search engine and
readable by anyone who accessed the defendant's own professional website. Sedley LJ held that in those
circumstances, the inference of substantial publication was irresistible.
167. In
Gregg v O'Gara [2008] EWHC 658 ,142 a libel claim was brought in respect of two internet articles published by
the defendant from his home in Ireland. The claimant applied for summary judgment, and on the basis of
uncontroverted evidence that the articles were accessible by typing "Yorkshire ripper" into a standard internet
search engine and that the 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 widely published within the jurisdiction.
168. In Mardas v New York Times Company & Another [2008] EWHC 3155
,143 a case not cited by either counsel, the claimant brought proceedings against the New York Times and the
International Herald Tribune in an English Court for publishing an allegedly defamatory article. Evidence
established there were approximately 177 hard copies and 31 hits of the story on line. Eady J refused the
defendant's suggestion of insufficient publication within the jurisdiction by relying in the remarks of Callinan J in
Gutnick that "[a] publisher, particularly one carrying on the business of publishing, does not 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 who gains access to the Internet does so by taking an initiative to gain access to it in a manner
analogous to the purchase or other acquisition of a newspaper, in order to read it " Eady J noted that the
article complained of was published online and continued to be available online, which fact "naturally gives rise at
least to the possible inference that there has been a continuing, albeit modest, readership". He allowed the action
to proceed. In discussing whether there has been a real and substantial tort 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
169. In Trkulja v Yahoo! Inc LLC, the defendants conceded that the defamatory article had been downloaded and
read by at least one person 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 read by the world at large and instead would have
been read by people who specifically wanted to know about the plaintiff. Kaye J observed that " he would be
entitled to take into account, as a matter of judicial notice, that the use of the internet, to ascertain information
about particular people, is now commonplace, Indeed, those searches have entered the everyday lexicon of the
community, and the process of undertaking such a search, is commonly referred to as "to google". Further,
the people, to whom the defendants published the article, would have used the defendants' search engine
specifically to obtain information about the plaintiff. "145Kaye J noted that the evidence established that the
material remained available to be accessed on the internet through the defendants' search engine until the end of
2010, which could only serve to increase the damage to the plaintiff's reputation throughout the 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 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 publication of the article caused significant grief and distress to the
plaintiff.
170. Further, "[the] fact that a snippet from and link to an online statement appears on the first screen of results
when a search is conducted on the claimant's name may be sufficient to support an inference that a substantial
number of persons have searched for and read the information appearing the snippet".146
171. Turning to the publication of the Words, there is affirmation evidence before me that in both May and August
2012 "google" searches at the Websites using the Keywords generated the very same 1st, 2nd, 3rd and 4th Words
as autocompletions and/or related search terms. Since such results are driven by previous search activity and/or
web content, the matching results in May and August 2012 lend themselves to an inference of similar search/web
interest during the Period. It is Google Inc's own case that the popularity and volume of previous search activity
using the relevant keywords that drive the autocompletions generated by Google Search, and there has been no
other explanation for why the 1st and 2nd Words appear so instantaneously in the drop-down menu of the Search
Box in both May and August 2012. The same can also be said for Related Searches results although they are also
influenced by web content.
172. Taking into account the contextual background of Yeung's involvement in the more flamboyant businesses
of entertainment and 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 autocompletions and related searches as explained above,
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Google Search being a popular search engine such that it is now commonplace to "google" about persons, the
ubiquity of the internet and the ready accessibility of the Autocomplete and Related Searches suggestions to
anyone conducting searches by Google Search, it appears to me to be an open question of fact, by inference or
otherwise, that visits have been paid to the Websites and as a result of such visits being paid there was access to
the Words. It seems to me to be the kind of matter that should be determined at trial rather than on an application
to set aside service out of jurisdiction. The fact that the same material remained available as autocompletions and
related search terms over the Period without being replaced by other words arguably serves to fuel the damage to
Yeung's reputation in Hong Kong, which may well have more injurious effect than if the Words were available
from live or print media.
173. In my view, even on the basis of the Hom 1st Aff, it is an open question by inference whether there is real and
substantial publication of the Words. In the circumstances, there is no material non-disclosure at the ex parte stage.
The principles in respect of duty of disclosure have been set out in Hong Kong Civil Procedure 2014,147 and I
have summarised them in China Agri-Products Exchange Limited v Wang Xiu Qun HCA 1807/2011
unreported.148 I do not propose to repeat those principles save to say that non-disclosure is culpable only when
the information goes to the weighing operation of the ex parte judge or master, ie it must be something which
would have affected his decision on the application.
174. Even if there is material non-disclosure sufficient to discharge the Leave Order (which I disagree), I must go
on to "consider the matters not disclosed on the original application and, if appropriate, re-grant leave on terms
that the plaintiff pay all the costs of the discharge application", and such decision whether or not to renew leave is
obviously discretionary.149 But where there is no intention to deceive and any re-application would be bound to
succeed (ie the result with disclosure would have been the same), the court will not discharge the leave. "Where
material non-disclosure has been established and the case is otherwise a 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
175. In the circumstances, I turn to the statistics obtained by Yuen in case I am wrong and there is material
non-disclosure. In my view, the inference of publication as discussed above is bolstered by the statistics compiled
by Yuen. Mr McCoy SC raises the spectre of the same person doing multiple searches of the Keywords and the
possibility of variability in the Autocomplete and Related Searches response. But these assertions are grounded on
possibility and not fact. This seems to be the kind of argument that could be developed at trial rather than on the
present application.
176. Mr McCoy SC also refers to the triviality of the 9,000 or so searches by the Keywords in July 2012 alone
compared with the massive volume of worldwide internet searches using Google Search or with the local print
media. I agree with Eady J that this is not a numbers game. The present action is brought by a businessman
well-known within this jurisdiction, and Mr McCoy SC in his submissions has not challenged Yeung's claim that
he is a man with a reputation to protect in Hong Kong. In my view, it cannot be said at this stage that damages for
reputational 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 purpose Google Inc does not take issue that the Words are
defamatory of 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) may consider that such returns by the Autocomplete and Relates
Searches features made publicly available to all internet users and persisted after being served with take-down
notification merit a substantial award. It is trite that an award of damages in libel actions serves not only to
vindicate the reputation of the claimant, but also to compensate him for injury to his feelings.
177. Looking at the matter in the round, even if there had been non-disclosure (which I do not agree), I would have
either not set aside the Leave Order or re-granted the Leave Order. I am unable to conclude on the 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 so outweighed by the countervailing considerations that I should set aside service
out of the jurisdiction. In all the circumstances, I am persuaded there is a serious question to be tried.
(d) Alternative claims
178. 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 Search's functionality and do 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 parties responsible for the relevant websites can remove
content to other webpages and/or render their URLs of no use so as to block access to such content. In the
circumstances, it is said that Yeung does not need a remedy against Google Inc in order to obtain access to justice
because he has an effective claim/remedy against the originators and operators of the individual websites from
which the autocompletions and/or related search terms are derived.
179. Mr McCoy SC suggests that Yeung should not adopt the complicated and unprecedented action to claim
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against Google Inc premised on an artificial responsibility as alleged publisher of the Words on the Websites, and
ignore the easy and obvious cause of action against the relevant websites and if necessary to make Norwich
Pharmacal discovery applications to identify the parties responsible for or who hosts or who places information
on those websites. Mr McCoy SC posed the Armageddon scenario with everyone unrelentingly suing every
search engine for every uncomplimentary remark or result extracted from previous search query or any indexed
webpage. He reminds that even if Google Inc were to remove the suggestions, it does not actually remove the
underlying information from the internet.
180. On the other hand, Mr Ng submits (and I agree) this is a red-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.
The Words are the results of recombinations, aggregations and synthesis of previous search activity and web
content by Google Search's algorithms as designed by Google Inc. Google Inc does not merely convey
information from computer to computer, and it is at this 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 Yeung can pursue specific
website owners/operators or individual internet users for reconstituted and aggregated suggestions. Further, as
discussed above, Google Inc does have some ability to censor material. Still further, even though it may be argued
that it is ultimately the user's choice in selecting or keying in his search query in the Search Box, autocompletions
and related search terms do not just point to a likely search query, but by its immediate and ready access invites the
user towards them. It cannot be said at this stage there is no point to Yeung's claim against Google Inc irrespective
whether or not he has other claims against specific websites.
181. Mr McCoy SC says the availability of a cause of action against specific websites was regarded as
significant in Bunt:152
79. "The claimant is not deprived of access to justice. His remedies lie against the first to third
defendants (if he can establish the necessary ingredients in respect of each). They may not be
persons of substance, such as to make it worthwhile pursuing them. Even if that is right, it is clearly
not a sufficient reason for bringing in the present applicants. I therefore accede to the submissions of
the applicants and will grant orders accordingly."

I do not think this supports Mr McCoy SC's 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 & Another [2012] EWHC 449 (QB)
as follows:153" In Bunt v Tilley, cited above, the claims against AOL UK Ltd, Tiscali UK Ltd and
British Telecommunications Plc were all struck out. Against that background, I concluded the judgment with
these words: 'The Claimant is not deprived of access to justice. His remedies lie against the First to Third
Defendants (if he can establish the necessary ingredients in respect of each). They may not be persons of
substance, such as to make it worthwhile pursuing them. Even if that is right, it is clearly not a sufficient
reason for bringing in the present applicants. '

The important question, in the present context, would appear to be, not whether Mr Tamiz can identify the
authors or bloggers in question, still less whether they are worth powder and shot, but rather whether he is in
a position to establish against Google Inc the necessary attributes of a publisher in accordance with common
law principles."

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 Yeung.
(e) Previous litigation
182. Mr Ng places much emphasis on the previous litigation between Yeung and Google Inc in HCA483/2011,
which I have tried to summarise in footnote 3 above. I agree with Mr McCoy SC that it is immaterial to the issues
herein, and do not propose to discuss this any further.
(f) Summary
183. In all the circumstances, I consider there is a serious question to be tried, and Master K Lo was justified in
exercising her discretion to grant the Leave Order.
IX. CONCLUSION
184. I therefore dismiss the Summons, and grant a costs order nisi in favour of Yeung against Google Inc (with all
costs reserved if any) to be taxed if not agreed.
185. I return to the beginning of this Decision and say that the internet has become a universal medium. The
advantages of having easy 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 can spread easily as users forage in the web. The art
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is to find the comfortable equilibrium in between.
186. I take this opportunity to thank counsel for their assistance.
1translated as "Yeung Sau Shing Triad", "Yeung Sau Shing Perverted" and "Yeung Sau Shing Sun Yee On"
2translated 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"
3on 23 May 2011 Yeung commenced HCA483/2011 against Google Inc for damages for libel in respect of
defamatory material on the Blogspot website operated, managed, administered and/or hosted by Google Inc, but
on 25 August 2011 Google Inc by their solicitors advised that the blog was no longer publicly available, and by
consent Yeung agreed to withdraw the action with no order as to costs
4legal counsel to the Group
5associate director of the Group's corporate communication department
6the 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 & Another HCA 2686/2004
(unreported, 10 January 2006) para 16 (see also
Oriental Press Group Ltd & Another v Fevaworks Solutions Ltd [2013] 5 HKC 253 , 277 at para 68)
7see paragraph 15 above
8see 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
9(1849) 14 QB 185, 188-189
10[1981] 1 QB 524, 527
11[2001] QB 201, 208
12see 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
13[2005] QB 946
14para 6.01 at p 189
15HCA 3831/1997, Chu J (as she then was) (unreported, 14 November 2000) p 9
16HCA 3831/997, Chu J (as she then was) (unreported, 15 November 2000) p 3
17CACV 1006/2000 (unreported, 17 April 2002) para 34
18see Gatley para 3.20 at pp 129-130
19see Gatley para 3.22 at pp 132-133
20[1937] 1 KB 818 (see paragraphs 60-62 below)
21[2013] EWHC 2694 (5 September 2013) para 43 cited in Gatley para 6.29 (footnote 250) at p 227
22see Trkulja v Google Inc LLC & Another [2012] VSC 533
(12 November 2012) para 18
23[2013] 5 HKC 253, 262-263 at paras 18-19
24p 264 at para 23
25Fevaworks Solutions Ltd pp 266 and 283 at paras 29 and 90
26p 273 at para 56
27[1937] 1 KB 818
28Fevaworks Solutions Ltd p 271 at paras 46-48
29at pp 837-838
30at pp 834-835
31[1991] Aust Torts Rep 81-127 (22 December 1988)
32pp 270-271 at para 44
33Fevaworks Solutions Ltd pp 271-272 at para 49
34Fevaworks Solutions Ltd pp 272-273 at paras 50-54
35[2013] EMLR 14 at p 308
36[2013] NZHC 540 (25 October 2012)
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37Fevaworks Solutions Ltd pp 272-273 at para 53
38Fevaworks Solutions Ltd pp 272-273 at para 53
39 Chau Hoi Shuen, Solina Holly v SEEC Media Group Limited CACV 275/2012
(unreported, 25 April 2014) para 5.3
40Fevaworks Solutions Ltd pp 275-276 at para 63
41Fevaworks Solutions Ltd p 279 at para 76
42Fevaworks Solutions Ltd p 283 at para 89
43see paragraph 65(b) above
44Fevaworks Solutions Ltd pp 278-279 at paras 74-76
45Fevaworks Solutions Ltd p 263 at paras 19-20
46see Gatley para 6.26 at pp 217-218
47see Gatley para 6.26 at pp 217-218 and Collins at para 4.60 at p 84
48[2002] QB 783
49see Collins para 4.62 at p 85
50[2007] 1 WLR 1243 and Fevaworks Solutions Ltd p 280 at para 82
51at p 1249
52at p 1252
53see
Oriental Press Group Ltd v Fevaworks Solutions Ltd [2012] 1 HKLRD 850 , 870
54Fevaworks Solutions Ltd p 280 at para 81
55Fevaworks Solutions Ltd p 281 at para 84
56Fevaworks Solutions Ltd p 281 at para 84
57Fevaworks Solutions Ltd p 280 at para 81
58para 6.27 at pp 221-222
59Fevaworks Solutions Ltd pp 281-283 at paras 85-88
60[2011] 3 SCR 269
61[2011] 1 WLR 1743 (see paragraphs 92-95 below)
62Fevaworks Solutions Ltd p 273 at para 54
63at para 6.29 at p 225
64at para 6.27 at pp 221-222
65at pp 291-292 and 294-295
66[2012] 3 CMLR 6 at p 104
67at p 116
68"[if] it were to respond to every complaint by requiring the offending material to be taken down, it would be
making significant inroads into freedom of expression" (at p 119)
69at pp 117-118
70at p 119
71at p 125
72at p 125
73at para 49 and footnote 44
74[2013] EMLR 14 at p 308
75at p 315
76at p 317
77at p 318
78which 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
79see Gatley para 6.29 at p 226 in which the editors consider this view to be correct and more consistent with
authority
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80see paragraphs 72-75 above
81[2013] NZHC 540 (25 october 2012)
82at paras 116-117
83at para 53 and footnote 45
84at para 6.29 at p 226
85at p 1757
86at p 1758
87at 1758
88[2010] EWHC 616 (QB) (23 March 2010)
89at para 73
90at para 74
91[2012] VSC 88 (15 March 2012)
92[2012] VSC 533 (12 November 2012)
93eg Bunt, Metropolitan International Schools Ltd, Tamiz, and Crookes
94at para 15
95[2012] NZHC 2352 (12 September 2012)
96see Altimo Holdings Investment Ltd & Others v
Kyrgyz Mobil Tel Ltd & Others [2012] 1 WLR 1804 , 1825-1826 (which case was concerned with an application
to set aside service out of jurisdiction)
97[2008] 5 HKLRD 631, 640
98para 4.136 at footnote 227 at p 101
99[2013] FCA 60 (2 February 2013), not cited by counsel
100Clark 2nd Aff para 17
1012011 BCSC 1196 (2 September 2011), noted cited by counsel
1022014 BCSC 1063 (13 June 2014)
1032014 BCCA 295 (23 July 2014)
104C-131/12 [not yet published]
105but on 30 July 2014 the House of Lords European Union Committee's Sub-committee on Home Affairs,
Health and Education published EU Data Protection 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
106see
Loutchansky v Times Newspapers Ltd & Others (Nos 2-5) [2002] QB 783 , 817
107[2009] ECHR 451
108at para 42
109[2007] 1 AC 359
110at pp 288-289
111[2011] 3 SCR 269, 289-290
112[2001] 2 AC 127, 238
113at pp 289-290 (see also Chau Hoi Shuen, Solina Holly at para 5.13)
114in 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
115see Gatley para 11.4 at pp 395-396
116at p 966
117see
Page 37
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

118para 32.52 at pp 1256-1257
119CACV 212/2007 (unreported, 13 February 2008)
120see para 23
121HCA 378/2010, Sakhrani J (unreported, 20 May 2011)
122at pp 963-964
123[1937] 1 All ER 725
124[1999] EMLR 724
125at pp 964-965
126HCA 12519/1997, Findlay J (unreported, 18 May 1999)
127at para 21
128Google AdWords is an online platform for pay advertising service operated by Google Inc that allows
registered users to promote their business, raise awareness and increase traffic to their websites for a prescribed
fee payable to Google Inc, and in summary the operation of such service is for the user to select a number of
"keywords" for his advertisement campaign so that whenever an internet user "googles" by using any of the
selected "keywords" the user's website may appear at a prominent location of the search result page
129Google Trends is a tool provided by Google Inc to show the popularity of a particular search keyword in a
specified location at a certain time by analysising a 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 user's check on the "popularity" of the selected keyword
will be shown on a graph, plotted on a scale from 0 to 100
130ie the approximate 12-month average of the number of "google" searches for such keywords
131see
Leung Kin Fook & Others 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)
132see In re J L Young Manufacturing Company, Limited [1900] 2 Ch 753
and Lumley v Osborne [1901] 1 QB 532

133[1994] 1 HKC 494
134[1991] 1 HKC 55
135see p 500
136see
Bryne v Deane [1937] 1 KB 818 , 837
137see Jameel (Yousef), Mohammed Hussien Al Amoudi v Jean Charles Brisard & Another [2006] EWHC 1062
(QB) (12 May 2006), Brady v Norman [2008] EWHC 2481 (
QB) (20 October 2008) and Carrie v Tolkien [2009] EWHC 29 (QB)
138see Collins para 4.09 at p 71
139[2001] EMLR 876
140see Gatley para 32.9 at p 1228
141[2005] EWCA Civ 288 (3 March 2005)
142[2008] EWHC 658 (QB) (10 March 2008)
143[2008] EWHC 3155 (17 December 2008)
144at para 15
145at para 36
146see Collins (2014) para 4.14 at p 73 and ZAM v CFW & Another [2013] EWHC 662 (QB)
(26 March 2013) paras 109 and 111
Page 38
147para 11/4/3C at pp 176-177
148HCA 1807/2011 (unreported, 5 November 2013) paras 110-119 (see also
Wo Fung Paper Making Factory Ltd v Sappi Kraft (Pty) Ltd [1988] 2 HKLR 346 , 357-358 and
Prediwave Corp & Another v New World TMT Ltd [2007] 4 HKC 207 , 221-222)
149see Hong Kong Civil Procedure 2014 para 11/4/4 at p 178
150see Hong Kong Civil Procedure 2014 para 11/4/4A at pp 178-179
151see paragraph 10 above
152at p 1263
153[2012] EWHC 449 (QB)
2014 Thomson Reuters Hong Kong Ltd.

Page39

v Google (Hong Kong) Ltd
District Court
19 March 2014
Case Analysis
Where Reported
[2014] HKEC 479;
Case Digest Subject: Civil procedure
Summary: Civil procedure; striking-out; action for publication and
assistance in publication of defamatory material; whether plainly and
obviously unsustainable and abusive of process
Cases Cited
Metropolitan International Schools Ltd v Designtechnica Corpn &
Others
[2011] 1 WLR 1743
Oriental Press Group Ltd & Another v Feavaworks Solutions Ltd
[2003] 5 HKC 253
2014 Thomson Reuters Hong Kong Limited

Page 40

v Google (Hong Kong) Ltd

19 March 2014
District Court
DC
Civil Action No 4322 of 2013
DCCJ 4322/2013
Citations: [2014] HKEC 479 English Judgment
Presiding Judges: Deputy Judge Brian Mak in Chambers
Phrases: Civil procedure - striking-out - action for publication and assistance
in publication of defamatory material - whether plainly and obviously
unsustainable and abusive of process
Counsel in the Case: The plaintiff appeared in personMs Queenie Lau, instructed by
Deacons, for the defendant
Cases cited in the
judgment:
Oriental Press Group Ltd & Another v Feavaworks Solutions Ltd [2003] 5
HKC 253
Metropolitan International Schools Ltd v Designtechnica Corpn & Others
[2011] 1 WLR 1743

Judgment:

Deputy Judge Brian Mak in Chambers
Introduction
1. This is an application by the defendant to strike out the statement of claim under Order 18 Rule 19 of the Rules
of District Court.
The statement of claim
2. In the statement of claim, which was written in Chinese, the plaintiff alleged that the defendant by using the
search engine of google.com.hk ("the domain name"), as an agent, knowingly published and assisted a third party
in the intentional and malicious publication of libel or slander.
3. Paragraph 2 of the statement of claim stated that on 5 May 2011, the defendant by using the search engine of
google.com.hk included therein, maliciously published as an agent or assisted a third party in the malicious
publication of 5 defamatory websites together with 1 malicious photograph.
4. Paragraph 5 of the statement of claim stated that on 23 August 2011, the defendant by using the search engine of
google.com.hk included therein, maliciously published as an agent or assisted a third party in the malicious
publication of 11 defamatory websites together with 3 indecent photographs and 1 malicious photograph.
5. None of the alleged defamatory words was set out in the statement of claim.
Legal principles on striking out
6. To exercise the court's power under this rule, the claim must be obviously unsustainable, the pleadings
unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike
it out: 18/19/4 Hong Kong Civil Procedure 2014.
7. The term "an abuse of the process of the court" connotes that the process of the court must be used bona fide and
properly and must not be abused. The court will prevent the improper use of its machinery: 18/19/10 Hong Kong
Page 41
Civil Procedure 2014.
Relevant law of defamation
8. To maintain an action for libel or slander, the words complained of must have been published. In order to
constitute publication, the matter must be published by the defendant to a third party. See Gatley on Libel and
Slander, 12th Ed. at 6.1.
9. The Court of Final Appeal in Oriental Press Group Ltd & Another v Feavaworks Solutions Ltd [2003] 5 HKC
253 held that the provider of a discussion forum was a subordinate publisher and not the first or main publisher of
the defamatory postings. As such, it can invoke the innocent dissemination defence as subordinate publisher.
10. In Metropolitan International Schools Ltd (trading as Skillstrain and/or Train2Game) v Designtechnica Corpn
(trading as Digital Trends) & Others [2011] 1 WLR 1743
, which is a case involving Google Inc as the operator of an Internet search engine, held that since a search carried
out by a user of the search engine was performed automatically in accordance with a computer program and
involved no input by any officer or employee of the third defendant (ie Google Inc), and since the third defendant
played no role in formulating the search terms and could not prevent the "snippet" appearing in response to the
user's request unless it had taken some positive steps in advance, the third defendant could not be characterised as
a publisher at common law but was merely a facilitator.
Discussion
11. The central issue of this application is whether the defendant is the proper party to sue.
12. Paragraph 3 of the plaintiff's affirmation argued that the defendant, being the registrant of the domain name, is
the administrator of the search engine. He alleges that the defendant by using the search engine linked the general
public to those defamatory websites. He defines the defendant as the "defamation agent"of Google
Inc.
Whether the defendant is the administrator of the search engine?
13. There is no dispute that the defendant is the registrant of the domain name. The plaintiff argued that the
administrator of the search engine and the registrant of the domain name is one and the same company.
14. The Competition Counsel, Asia-Pacific Economic Cooperation of Google Inc, Madam Wang Margaret
Hsiao-Hui ("Madam Wang") in her affirmation pointed out that the Annex 1 produced by the plaintiff in his
affirmation was incomplete. That document appears to be obtained from the "WHOIS" search enquiry services
provided by the website of the Hong Kong Internet Registration Corporation Limited (the "HKIRC"). According
to a copy of the complete search result produced by the defendant, it can be seen that the defendant is the
"registrant contact" of the domain name, whereas both the "administrative contact" and the "technical contact" is
Google Inc.
15. Madam Wang explained that the defendant was named as the registrant of the domain name because
paragraph 3.6 of the HKIRC's Domain Name Registration Policies, Procedures and Guidelines .hk and .
domain names ("the guidelines"), imposes the restriction that only commercial entities registered in HKSAR are
eligible to register a domain name ending with "com.hk".
16. Paragraph 3.6 of the guidelines reads:- "Commercial entities registered in HKSAR are eligible to register
a com.hk English Domain Name and/or . Chinese Domain Name"

17. For this reason, Google Inc decided to use the defendant's name as the registrant of the domain name.
18. However, Google Inc is responsible for the operation, the maintenance and the running of the website at any
time. Therefore, the contact details of Google Inc were given under "administrative contact information" and
"technical contact information" instead of those of the defendant.
19. Further, the email account of dns-admin@google.com, which belongs to Google Inc, was given under
"registrant contact information", "administrative contact information" and "technical contact information". The
reason being Google Inc is the actual point of contact in relation to the domain name.
20. Lastly, Madam Wang drew this court's attention to the Terms of Service of the website, which clearly states
that the products and services at the website are provided by Google Inc.
21. From the information given by the defendant, I think it is quite clear that the registrant of the domain name is
not the same company which is responsible for the running of the website.
22. Due to the restriction imposed by the guidelines, the registrant of the domain name must be a Hong Kong
company. However, Google Inc's email address of dns-admin@google.com was given at the "registrant contact
information", "administrative contact information" and "technical contact information" columns. Obviously, it
was intended that in relation to operation, maintenance and running of the website, Google Inc is the responsible
company.
Page 42
23. I am satisfied that the defendant is not the administrator of the search engine. The defendant is merely the
registrant of the domain name of google.com.hk only. The administrator of the search engine is Google Inc.
Defamation agent
24. This term must be the plaintiff's own invention. It is not known in law. The meaning of it is therefore not
entirely clear.
25. From the affirmation of the plaintiff, it seems the plaintiff is saying that the defendant, being the registrant of
the domain name, must have the ability to manage and control the running of the search engine. The defendant, by
allowing the search engine to link the general public to the defamatory websites, is regarded as the "defamation
agent" of Google Inc.
26. To succeed in his claim against the defendant, he must establish that the defendant had published the
defamatory words to a third party.
27. The defendant in this case is neither the provider of a discussion forum as in the case of Oriental Press Group
nor the operator of a search engine as in the case of Metropolitan International Schools.
28. There is no way that the plaintiff can possibly prove that the defendant did publish the defamatory words. The
defendant is not even a "facilitator" in the Metropolitan International Schools sense.
29. In my view, the plaintiff's claim is plainly and obviously unsustainable. It is an abuse of the process of the
court which must be prevented.
Conclusion and Order
30. For the above reasons, the plaintiff's statement of claim is struck out and the plaintiff's claim is dismissed.
Costs
31. Costs shall follow the event. I order the plaintiff shall pay the costs of this action including this application to
the defendant with Certificate for Counsel.
32. By summary assessment, I order the plaintiff do pay the defendant costs in the sum of $87,682.
2014 Thomson Reuters Hong Kong Ltd.