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Dr Yeung Sau Shing Albert v Google Inc

5 August 2014Court of First InstanceCFIHigh Court Action No 1383 of 2012HCA 1383/2012Citations:[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) 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

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 ChambersIndexPage

I. Introduction2

II. Summons7

III. Issues9

IV. Autocomplete and Relates Search Features10

V. Service out of jurisdiction15

VI. Good arguable case: publication15

VII. Good arguable case: publisher22

(a) Law24

(b) Facts59

(c) Striking a balance69

(d) Summary77

VIII. Serious question to be tried77

(a) Real and substantial tort or Jameel abuse of process77

(b) .com and .com.tw Websites85

(c) Scale of publication89

(d) Alternative claims96

(e) Previous litigation99

(f) Summary99

IX. Conclusion100

I. INTRODUCTION1. 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").

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. SUMMONS14. 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 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. ISSUES18. 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.620. 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 FUNCTIONS22. 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 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 JURISDICTION35. 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: PUBLICATION36. 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."

1243. 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 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".1947. 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.VII. GOOD ARGUABLE CASE: PUBLISHER49. 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 .2051. 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) Law57. 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:2318. "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 newspaper's proprietor (who published it through its employees or agents) are all liable.2458. 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.2559. 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".2860. 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.3061. 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 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.3464. 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.3765. 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 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.4670. 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.4972. 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".5274. 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".5575. 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 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".5876. 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 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.7084. 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.7285. 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.7587. 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)

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.7989. 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.8291. 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 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.8794. 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 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 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