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HCA 1383/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1383 OF 2012

--------------------

BETWEEN

DR YEUNG, SAU SHING ALBERT Plaintiff

and

GOOGLE INC Defendant

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Before: Deputy High Court Judge Marlene Ng in Chambers

Date of Hearing: 8 May and 7 November 2013

Date of Handing Down Decision: 5 August 2014

------------------------

D E C I S I O N

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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 77

or Jameel abuse of process

(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.

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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

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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 users 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).

1 translated as Yeung Sau Shing Triad, Yeung Sau Shing Perverted and

Yeung Sau Shing Sun Yee On 2 translated as Yeung Sau Shing Triad, Yeung Sau Shing 10 Sins,

Yeung Sau Shing Sun Yee On, Yeung Sau Shing 14k, Yeung Sau Shing covered story and Joey Yung Yeung Sau Shing covered story

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5. 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), Yeungs

solicitors (ILL) (a) notified Google Inc of the presence of the Words

published on the Websites, (b) claimed that although Google Incs

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

3 on 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

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(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

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

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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 Incs 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

4 legal counsel to the Group

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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 Yeungs 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 Yeungs 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).

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16. On 20 February 2013, Yeung filed Homs 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, Yeungs application for the Leave Order

is based on Order 11 rule 1(1)(f) of the RHC. The Hom 1st Aff contends

that Yeungs claim is founded on the tort of defamation, and either the

damage has been sustained within this jurisdiction or the damage has

resulted from an act committed within the jurisdiction.

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

5 associate director of the Groups corporate communication department 6 the Hom 1st Aff draws attention to Gatley on Libel and Slander 11th ed para 6.1 at

pp 187-189 and Emperor (China Concept) Investments Ltd v SBI E-2 Capital

Securities Limited & anor HCA2686/2004 (unreported, 10 January 2006) para 16

(see also Oriental Press Group Ltd & anor v Fevaworks Solutions Lted [2013] 5

HKC 253, 277 at para 68)

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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

Yeungs claim falling within Order 11 rule 1(1)(f) of the RHC, and no

serious question to be tried on the merits to enable the court to exercise its

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

Yeungs 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

7 see paragraph 15 above

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181 countries and 146 languages. To understand Yeungs complaints in

relation to Google Searchs 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)

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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. Googlebots 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 Searchs 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.

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28. Google Searchs 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 Searchs 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

Searchs 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

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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 Searchs 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 Searchs

Autocomplete and Related Searches functionalities. Mr McCoy SC

argues that by providing internet search services through Google Searchs

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 Googlebots index, (b) decide the

relative importance of webpage ranking, and (c) reconstitute web content

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and aggregate previous search activity, Google Inc intended and in this

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

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 Searchs 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.

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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 Groups 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

8 see Dow Jones & Co Inc v Gutnick (2002) 194 ALR 433 cited in Emperor (China

Concept) Investments Ltd para 16 and Godfrey v Demon Internet Ltd [2001]

QB 201, 208-209

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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,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 SCs 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 plaintiffs 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.

9 (1849) 14 QB 185, 188-189

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42. This is also borne out by the judgment by Lord Esher MR in

Pullman v Walter Hill & Co Ltd10 cited with approval in Godfrey v Demon

Internet Ltd: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.12

43. Mr McCoy SC submits that Jameel (Yousef) v Dow Jones &

Co Inc13 held that where the plaintiff procures publication to his agent or

servant for the purpose of defamation proceedings, as in the present case, it

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

10 [1981] 1 QB 524, 527 11 [2001] QB 201, 208 12 see also Collins on Defamation (2014) para 4.04 at p 70 and Gatley on Libel and

Slander 12th ed (2013) para 6.15 at pp 207-208 13 [2005] QB 946

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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 SCs 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

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people any claim risks being struck out as an abuse of process 14

I will return below to the issue of Jameel abuse of process, but suffice to

state here that this case does not support Mr McCoy SCs 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 & ors,15 Oriental Press Group Ltd v Next Magazine

Publishing Ltd & ors (No 2)16 and Oriental Press Group Ltd v Next

Magazine Publishing Ltd & ors17 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

14 para 6.01 at p 189 15 HCA3831/1997, Chu J (as she then was) (unreported, 14 November 2000) p 9 16 HCA3831/997, Chu J (as she then was) (unreported, 15 November 2000) p 3 17 CACV1006/2000 (unreported, 17 April 2002) para 34

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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 plaintiffs 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 magazines 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.

18 see Gatley para 3.20 at pp 129-130 19 see Gatley para 3.22 at pp 132-133

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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 Yeungs 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 Incs property

(ie the Websites) without their approval or encouragement such that they

can invoke the principle in Bryne v Deane.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)

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has brought home to Google Inc the presence of the Words on the

Websites as well as Yeungs complaint about them, and the google

search by ILL 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 Yeungs 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

Yeungs 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

20 [1937] 1 KB 818 (see paragraphs 60-62 below)

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it is responsive to change. As Sir James Munby P said in Re J (A Child)

(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 & anor v Fevaworks Solutions Ltd 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

21 [2013] EWHC 2694 (5 September 2013) para 43 cited in Gatley para 6.29

(footnote 250) at p 227 22 see Trkulja v Google Inc LLC & anor [2012] VSC 533 (12 November 2012) para 18 23 [2013] 5 HKC 253, 262-263 at paras 18-19

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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 newspapers 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

24 p 264 at para 23 25 Fevaworks Solutions Ltd pp 266 and 283 at paras 29 and 90

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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 Deane27 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 persons 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

26 p 273 at para 56 27 [1937] 1 KB 818 28 Fevaworks Solutions Ltd p 271 at paras 46-48

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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 LJs judgment was approved by Hunt J of the New

South Wales Supreme Court in Urbanchich v Drummoyne Municipal

Council.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 Authoritys

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:

29 at pp 837-838 30 at pp 834-835 31 [1991] Aust Torts Rep 81-127 (22 December 1988)

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In a case where the plaintiff seeks to make the defendant responsible for the publication of someone elses defamatory statement which is physically attached to the defendants 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 occupiers property without the occupiers 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.

32 pp 270-271 at para 44

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63. The distinction between the two sets of principles explained in

paragraph 59 above underlies Ribeiro PJs 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

forums 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 Inc35 and Wishart v Murray & ors,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

33 Fevaworks Solutions Ltd pp 271-272 at para 49 34 Fevaworks 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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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

37 Fevaworks Solutions Ltd pp 272-273 at para 53 38 Fevaworks Solutions Ltd pp 272-273 at para 53

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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

39 Chau Hoi Shuen, Solina Holly v SEEC Media Group Limited CACV275/2012

(unreported, 25 April 2014) para 5.3 40 Fevaworks Solutions Ltd pp 275-276 at para 63

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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 defendants

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.

41 Fevaworks Solutions Ltd p 279 at para 76 42 Fevaworks Solutions Ltd p 283 at para 89

43 see paragraph 65(b) above 44 Fevaworks Solutions Ltd pp 278-279 at paras 74-76 45 Fevaworks Solutions Ltd p 263 at paras 19-20

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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.47 Godfrey was cited without disapproval in Loutchansky v

Times Newspaper Ltd & ors (Nos 2-5).48 Morland Js 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

46 see Gatley para 6.26 at pp 217-218 47 see Gatley para 6.26 at pp 217-218 and Collins at para 4.60 at p 84 48 [2002] QB 783

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essential before an internet intermediary can be considered to be a

publisher.49

72. In Bunt v Tilley & ors,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 ISPs 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

49 see Collins para 4.62 at p 85 50 [2007] 1 WLR 1243 and Fevaworks Solutions Ltd p 280 at para 82 51 at p 1249 52 at p 1252

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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 Js 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

53 see Oriental Press Group Ltd v Fevaworks Solutions Ltd [2012] 1 HKLRD 850, 870 54 Fevaworks Solutions Ltd p 280 at para 81 55 Fevaworks Solutions Ltd p 281 at para 84 56 Fevaworks Solutions Ltd p 281 at para 84

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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.58

76. As regards the control criterion for identifying the main

publisher in contra-distinction to the subordinate publisher, Ribeiro PJ59

cited Eady Js 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.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 Cs 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 articles

57 Fevaworks Solutions Ltd p 280 at para 81 58 para 6.27 at pp 221-222 59 Fevaworks Solutions Ltd pp 281-283 at paras 85-88 60 [2011] 3 SCR 269

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content or publication. N therefore had not published any defamatory

material, and Cs 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 Corporation61)

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 Js 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.

61 [2011] 1 WLR 1743 (see paragraphs 92-95 below)

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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].

62 Fevaworks Solutions Ltd p 273 at para 54 63 at para 6.29 at p 225 64 at para 6.27 at pp 221-222

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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 majoritys 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,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 Incs 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 Incs

65 at pp 291-292 and 294-295 66 [2012] 3 CMLR 6 at p 104 67 at p 116

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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 fixe