Tort – defamation – libel – whether Internet search engine is a “publisher” in respect of Autocomplete and related search suggestions generated by automated process
In a defamation action, the Deputy Judge dismissed the application of D, an Internet service provider, to set aside leave to serve out of the jurisdiction obtained by P (see  4 HKLRD 493) (the “Decision”). D sought leave to appeal against the Decision, arguing that inter alia the Deputy Judge erred in holding there was a good arguable case that: (a) publication of the offending words to P’s IT department and solicitors tasked to search/print them constituted “publication” to a third party (“Ground 1”); and (b) D was a “publisher” rather than a passive facilitator whose Autocomplete and Related Searches suggestions on its home pages were driven by algorithms which merely reflected users’ search activity (“Ground 2”). On Ground 1, D argued that the proceedings should be stayed as an abuse of process based on the proportionality principle laid down in Jameel (Yousef) v Dow Jones & Co. Inc.  QB 946. D relied on Bleyer v Google Inc.  NSWSC 897, dated shortly after the Decision, which held that given the very minimal scope of publication in that case, the legal costs and resources required to determine the claim would be “out of all proportion” to the interest at stake (ie, the vindication sought).
Held, granting the application, that:
- On Ground 1, given the evidence and the contextual background of the alleged defamatory words, including P’s public profile, his involvement in the entertainment business and the subject matter of those words being of continuing interest, the ready accessibility of the Autocomplete and Related Searches features to Internet users and statistical information compiled by D on Google searches using the keywords, it was an open question of fact, by inference or otherwise, that there might have been real and substantial publication. Further, the Court had considered the balance of interests between the scale of publication and the vindication of reputation, and between freedom of speech, press and publication and respect for others’ rights/reputations, before concluding that P had a good arguable case.
- Notwithstanding, in light of the novelty of D’s argument on abuse of process as set forth in Jameel and on staying/dismissing proceedings on the proportionality principle in this jurisdiction, guidance by the Court of Appeal on the balancing of factors, especially in the post-Civil Justice Reform regime, which might encourage courts to halt costly and time-consuming defamation actions would be relevant and useful; and it was inappropriate for this Court to make an unseemly spectacle of standing in the way of such an appeal. This fell within the “some other reason in the interests of justice” for granting leave to appeal under s. 14AA of the High Court Ordinance (Cap. 4).
- On Ground 2, while the algorithmic processes were automated, D deployed artificial intelligence to amass information from previous search queries and web content and then generated predictive keywords for the Autocomplete and Related Searches features. Thus, it was arguable that Google Search did deal with content and, unlike mere conduits or passive facilitators, D might be considered as a publisher of injurious content of the predictive suggestions. Notwithstanding, leave should be also be granted on the “some other reason in the interests of justice” limb so the Court of the Appeal could impart their wisdom on the implications of divergent views in international jurisprudence on Internet defamation law for this jurisdiction.