Lugwig Ng, Senior Partner, ONC Lawyers
In Dr. Yeung Sau Shing Albert v Google Inc.  5 HKC 375, the Court of First Instance found that there is a good arguable case that Google is a publisher of defamatory material by generating defamatory search suggestions through its search engine to its users and that the Hong Kong courts have jurisdiction over it.
When the Entertainment Tycoon and the Internet Giant Clash in Court
In Dr. Yeung Sau Shing Albert v Google Inc.  5 HKC 375, the Plaintiff (“Yeung”), a Hong Kong businessman most famous for his success in the entertainment industry, discovered that typing his Chinese and English names in the search box of the Defendant’s (“Google”) search engine automatically generated below the search box a list of search suggestions that associated Yeung with criminal activities and triad groups (the “Autocomplete function”). Further, on hitting the search button with his Chinese and English names in the search box, a list of related search results of similar nature was displayed at the bottom of the page (the “Related Search function”). His solicitors wrote to Google and its legal representatives to demand removal of the defamatory words that the two functions generated. As Google failed to comply with his request, he initiated legal proceedings against Google in Hong Kong.
In order for Yeung to commence proceedings in Hong Kong against the US-based Defendant, he must show, among other things, that he has a good arguable case against Google that (1) there was publication of defamatory words by Google to a third party reader; and (2) Google can be regarded as a publisher of the defamatory words being predictions or suggestions derived from the completely automated search process.
How Google Lost the Battle (for the Time Being)
Are the Search Suggestions a Publication?
In defamation cases, material is considered “published” when and where it is comprehended by the reader. Since Yeung’s IT staff and his solicitors were able to download and print out copies of the Autocomplete and Related Search results from the Google website, the court accepted that there may have been publication by Google to third party readers in Hong Kong. Although the persons that downloaded and printed the material were connected to Yeung, the court found it to be irrelevant and that they could still be considered as third party readers. Overall, the court was satisfied that there was arguably publication of the defamatory material by Google in Hong Kong, which gave rise to its jurisdiction over the matter.
Is Google a Publisher?
Google argued that it was not a publisher because no human input was required in generating the Autocomplete and Related Search suggestions. It argued that it had no control over the automatically generated results as what results to display is based heavily on the popularity of the search queries among all Google users. It therefore followed that Google only acted as a passive medium. However, the court rejected the argument and applied the “strict publication rule”, meaning whoever takes part in making the defamatory statement known to others is liable unless the publisher (Google) can put forward a legitimate defence.
Google’s defence was that it was a subordinate publisher (like a library or a newsstand) who did not know and would not reasonably have known in the circumstances that the publication contained defamatory content. It sounded like a strong argument because, considering the high volume of information Google dealt with daily, it could not possibly have known all contents in the publication. However, the argument fell through after Google was notified by Yeung, through the letters his solicitors had written to Google and its solicitors, of the existence of the defamatory search suggestions. Since Google is capable of censoring its material, and since it chose not to take action within a reasonable time after being notified of the existence of such search suggestions, it could be argued that Google should be treated as a main publisher (instead of a subordinate publisher). As such, it is arguable that Google’s defence will not be accepted by the court.
The court also found a good arguable case that Google intends to be a publisher of the defamatory words. Due to the way the search engine works, it is arguable that Google intends to publish anything its automated system produces. As the Autocomplete and Related Search suggestions are results of multiple factors set by Google through the algorithms it designed, revised and improved, the system functions the way Google intends it to and may not be argued that it merely conveyed information neutrally or acted as a passive facilitator.
The Court’s Decision
Considering all circumstances of the case, the court found that Yeung has a good arguable case against Google that (1) Google was a publisher; and (2) there was publication by virtue of the search engine’s Autocomplete and Related Search functions. Combined with the large scale of defamatory publication from the search suggestions and the likely substantial damage to Yeung’s reputation due to such publication, the court confirmed that Yeung should be allowed to continue the proceedings against Google in the Hong Kong courts.
It should be noted that the court’s decision here is only a preliminary one on jurisdiction (not a substantive finding that Google was liable for defamation) and Google had already filed an appeal against the decision. The judge recognised the complexity and novelty of the issues and granted leave to Google to appeal her decision. Further elaboration of the law must await the ruling of the Court of Appeal and the eventual trial of the action.