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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
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BETWEEN
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DR YEUNG, SAU SHING ALBERT |
Plaintiff |
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and
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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 |
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D E C I S I O N
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Index |
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| I. |
Introduction |
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| II. |
Summons |
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| III. |
Issues |
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| IV. |
Autocomplete and Relates Search Features |
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| V. |
Service out of jurisdiction |
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| VI. |
Good arguable case: publication |
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| VII. |
Good arguable case: publisher |
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(a) Law |
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(b) Facts |
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(c) Striking a balance |
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(d) Summary |
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| VIII. |
Serious question to be tried |
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(a) Real and substantial tort or Jameel abuse of process |
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(b) .com and .com.tw Websites |
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(c) Scale of publication |
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(d) Alternative claims |
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(e) Previous litigation |
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(f) Summary |
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| IX. |
Conclusion |
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I. INTRODUCTION
1. Technological developments and innovations have rendered our lives more comfortable and easier. The worldwide web (internet) is a remarkable example of this development, and “googling” has become a popular mode of informing gathering. But such usage can result in both comfort and danger. Left unmonitored, there may be disquieting consequences through misinformation and unaddressed complaints, especially when the search process throws up unsavory information associated with a person or entity that proves to be derogatory and false. Questions have arisen in international legal forums over this troubling grey area (the combined diligence of counsel have presented me with over 50 authorities), and now at issue in this case in Hong Kong are the twin questions of who is responsible for predictive suggestions generated by the Autocomplete and Related Searches search engine features, and whether defamation law principles are amenable to address such concern.
2. The plaintiff (“Yeung”) is a businessman and chairman/founder of the Emperor Group being a group of listed companies based in Hong Kong and engaged in various business enterprises (“Group”), including property development and investment, retailing, hospitality and gaming, financial services, entertainment and movies as well as publishing and distribution. Yeung is involved in community services, and responsible for establishing various charitable funds and foundations. He has received recognition for his charity work.
3. The defendant (“Google Inc”) is a global business with headquarters in the United States that provides internet based services. Such services include internet search facilities through the use of their internet search engine known as “Google Search” (“Google Search”). Google Search is accessible by entering the name of any of the worldwide domains owned by Google Inc into a web browser. Google Inc is the owner, provider, administrator and manager of the domains/websites at www.google.com.hk, www.google.com.tw and www.google.com (“.com.hk Website”, “.com.tw Website” and “.com Website”, collectively “Websites”). The .com Website is a top level domain that comprises the top level domain Google Inc uses for their services in the United States, and the .com.hk and .com.tw Websites that are the country code top level domains for services provided by them in Hong Kong and Taiwan respectively.
4. Yeung claims that on 23 May 2012, a search was conducted on the Websites as follows:
(a) When the following Chinese characters and/or English words were typed in the “Google Search”/“Google 搜尋” 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 “楊受成” generated “楊受成 黑社會”, “楊受成 變態” and “楊受成 新義安”[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”/“相關搜尋”, some of which contained the following characters and/or words:
(i) typing “楊受成” generated “楊受成 黑社會”, “楊受成十宗罪”, “楊受成 新義安”, “楊受成 14k”, “楊受成 內幕” and “容祖兒楊受成內幕”[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 “楊受成”, “albert yeung” and/or “albert yeung sau shing” as the “Keywords”.
6. By a letter dated 28 May 2012 (“1st Letter”), Yeung’s solicitors (“ILL”) (a) notified Google Inc of the presence of the Words published on the Websites, (b) claimed that although Google Inc’s Autocomplete and Related Searches algorithms “may not involve any human intervention, they nevertheless generate and display information/ suggestion to internet users” which in the present case contained words/phrases that were defamatory of and concerning Yeung, and (c) demanded Google Inc to remove/prevent the Words from appearing/reappearing in any existing/future “google” search made against the Keywords. Yeung claims that by reason of the 1st Letter Google Inc knew or ought to have known of the presence of the Words on the Websites at least from 28 May 2012.
7. On 21 June 2012, Yeung through ILL wrote to Deacons (former solicitors for Google Inc in previous litigation between Yeung and Google Inc)[3] to draw their attention to the presence of offending words in the autocompletions upon typing the Keywords in the Search Box of the Websites, and to enquire whether they had instructions to act in the matter (“2nd Letter”). By the 2nd Letter, Yeung also indicated his wish to explore the possibility of an amicable resolution of the matter similar to the eventual disposal of the earlier litigation (ie removal of the defamatory material by Google Inc and discontinuance of the legal action).
8. Yeung claims that notwithstanding notification by the 1st and 2nd Letters Google Inc has failed to take down the Words and has continued to publish or cause to be published the Words at the Websites from 28 May 2012 (the date of the 1st Letter) to 6 August 2012 (the date of the Writ of Summons referred to in the paragraph below) (“Period”).
9. On 6 August 2012, Yeung issued a Writ of Summons against Google Inc (“WoS”) for inter alia damages for libel in respect of the publication of the Words that are defamatory of and concerning him in the manner set out in paragraph 4 above during the Period and continuing, and an injunction order restraining Google Inc from howsoever publishing and/or causing the publication of and/or participating in the publication of the alleged libels.
10. Yeung claims his personal and/or business reputation has been gravely injured by reason of the publication of the Words, and he relies on the following facts and matters in aggravation of damages:
(a) the publication of the Words relates to allegations against him that are of a criminal nature and/or otherwise serious;
(b) Google Inc has failed to take any or any reasonable step to verify the truth/accuracy of the Words, which contain allegations against him that are of a criminal nature and/or otherwise serious;
(c) despite receipt of the 1st Letter, Google Inc has continued to publish or caused to be published the Words on the Websites, thereby causing further harm and suffering to him.
11. On 16 August 2012, Yeung filed the affirmation of Hom Mun Yee Caroline (“Hom”)[4] in support of his ex parte application for leave to serve the WoS on Google Inc out of jurisdiction in the United States pursuant to Order 11 rule 1(1)(f) of the Rules of the High Court (“RHC”) (“Hom 1st Aff”).
12. On 28 August 2012, ILL wrote to the court to request for the issue of a concurrent WoS. On 3 September 2012, Master K Lo inter alia granted leave for Yeung to issue/serve a concurrent WoS against Google Inc out of jurisdiction in the United States (“Leave Order”). On 14 September 2012, the concurrent Writ of Summons (“CWoS”) was issued out of court.
13. On 4 October 2012, Google Inc’s solicitors (“Deacons”) filed acknowledgment of service giving notice of intention to defend. On 5 November 2012, Yeung filed his Statement of Claim (“SoC”).
II. SUMMONS
14. On 24 December 2012, Google Inc issued a summons under Order 12 rule 8 of the RHC and/or the inherent jurisdiction of the court for inter alia the following reliefs (“Summons”):
(a) a declaration that the court has no jurisdiction over Google Inc in respect of the subject matter of the claim or the reliefs/ remedies sought against Google Inc in the present action, or alternatively a declaration that the court should not exercise any jurisdiction it may have;
(b) an order that (i) the CWoS and Leave Order be set aside or discharged, (ii) service of the CWoS on Google Inc be set aside, and (iii) all subsequent proceedings in the present action be stayed.
15. As set out in the Summons, the...
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