Hong Kong Court of First Instance allows Albert Yeung's libel case in relation to Google's autocomplete search function to proceed

In Albert Sau Shing Yeung v Google Inc, the Court of First Instance allowed Albert Yeung's claim against Google to proceed past a summary dismissal application on the basis that there was a good arguable case that Google was a "publisher" of allegedly defamatory words through its Autocomplete and Related Search functions. Yeung is suing Google for libel after he found that, when he googled his name, in English or Chinese, the Autocomplete feature suggested the word "triad" and the names of certain triad gangs. The Court found that the issue of whether an internet search engine is a “publisher” in respect of Autocomplete and Related Searches suggestions is a controversial question in a developing area of law and deserved to be determined at full trial. This decision could have far-reaching consequences for defamation law and could potentially affect the way Google and other search engines operate.

Yeung claims that Google published, or caused to be published, words which are defamatory of and concern him, as the word "triad" and the names of triad gangs (the "Words") are associated with criminal activity. Google issued a Summons disputing the Court's jurisdiction in respect of Yeung's claim and sought an order that the Writ of Summons and the order granting leave for service of the Writ out of the jurisdiction be set aside. The Court had to consider whether the Master was justified in exercising her discretion to grant leave for Yeung to serve the Writ of Summons out of jurisdiction. Essentially, this required the Court to determine whether (1) Yeung has a good arguable case in relation to his claim, (2) there is a serious question to be tried on the merits of the claim and (3) that in all the circumstances, Hong Kong is clearly and distinctly the appropriate forum for the trial of the dispute.

Legal and factual analysis

In defamation cases, material is “published” and damage occurs in the location where the publication is received by the reader or viewer. In relation to electronic material, publication takes place where a person downloads the material, not where the material was uploaded. Whilst Google did not dispute this, it argued that as the claim was premised on the ability of Yeung's IT department to download the Words from Google, Yeung had failed to provide actual evidence of a genuine third party user conducting a search of Yeung's name and the Autocomplete and Related Searches generating the Words as a result. Google contended that as the IT Department was made up of “persons employed by or tasked by [Yeung] to deliberately search, find and ‘publish’ material allegedly defamatory of him”,there was no third party user and no publication of the Words. The Judge rejected this argument on the basis that there need not be publication in the commercial sense so long as there is an act of publication "on any person other the claimant", and held that there was a good arguable case that the viewing of the Words by the users at the IT department constituted publication in Hong Kong.

Google also argued that it was not a "publisher" of the Autocomplete and Related Searches results since the algorithms used to generate such results require no human input or operation. The suggestions are generated by previous search activity of Google users and the content of the webpages indexed by Google. It was contended that Google is "a mere passive facilitator in respect of the words/images seen on its domains". Yeung did not dispute the automated nature of the search process, but argued that Google essentially had control over the Autocomplete and Related Searches results and was therefore a "publisher" of such results.

The Court relied on the judgment of Ribeiro PJ in Oriental Press Group Ltd & anor v Fevaworks Solutions Ltd [2013] 5 HKC 253 and stated that "the primary question is whether or not the Defendant is within the broad traditional concept of a publisher under the strict publication rule". Under such rule, any person who takes part in making the defamatory statement known to others may be liable for it. It was established in Fevaworks Solutions Ltd that:

(a)   If the defendant 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 (Bryne v Deane [1937] 1 KB 818) 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 has established, the defence of innocent dissemination in order to be relieved of the strict publication rule that is otherwise applicable. Such defence is, however, only available to a subordinate publisher and not the main publisher.

After a careful analysis of the case law of various jurisdictions, the Court held that "it is plainly arguable that a search engine (including Google Inc) that generates objectively defamatory materials by its automated processes is a “publisher” within the meaning as explained in Fevaworks Solutions Ltd". The Court found that whilst the algorithms use several factors outside of Google's control, it is "arguable that Google Search does not simply convey information, but its Autocomplete and Related Searches features act by providing information distilled pursuant to artificial intelligence set up by Google Inc themselves by virtue of the algorithms they have created and maintained to actively facilitate the search processes." The evidence also demonstrated that Google was capable of censoring material generated through its searches. Accordingly, it was questionable whether Google is a "neutral tool" and therefore there was "a good arguable case that Google Inc is more than a passive facilitator vis‑à‑vis their Autocomplete and Related Searches features".

The Court was also persuaded that there was a serious question to be tried and as Hong Kong was the place of publication, it followed that there was a good arguable case that damage has been sustained in, or has resulted from an act committed within, the jurisdiction. Hong Kong was, therefore, deemed to be the appropriate forum to try Yeung's case.

It was concluded that whether Google was "a mere conduit or neutral distributor" of the defamatory material was an open question and, in all the circumstances, "the point of law is novel and of such importance that it should…be determined in its proper factual context at trial". Yeung's claim was, therefore, allowed to proceed and Google's summons was dismissed.

Conclusion

This decision re-opens the question of whether an internet search engine is a "publisher" for the purposes of the law of defamation. This point of law has been tried in many different jurisdictions but the possibility of liability for suggestions generated through automated processes such as Google's Autocomplete search function is a novel issue and adds another angle to the wealth of jurisprudence which has developed in this area. As mentioned earlier, this decision could potentially change the way Google and other search engines operate, in order to avoid potential defamatory liability as a "publisher", and we wait to see whether the Hong Kong courts will come to the landmark conclusion that Google is subject to liability for suggestions generated by its Autocomplete and Related Search functions.

If you wish to discuss, please contact Gareth Thomas or Dominic Geiser of our Hong Kong Dispute Resolution team.