ORIENTAL PRESS GROUP LTD AND OTHERS v. GOOGLE INC.

HCA 2474/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTIONS NO 2474 OF 2015

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HCA 2476/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTIONS NO 2476 OF 2015

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HCA 2477/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTIONS NO 2477 OF 2015

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(Heard Together)

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JUDGMENT

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1.  Public concern about some media institutions is largely concentrated upon the need for integrity, honesty, reliability and the capacity to report objectively. It is also rightly alert to scurrility and other offensive material.

2.  The public has come to use social media, in particular, in a sense of trust.  But social media is open to abuse.  Its ability to control and discipline the material which it disseminates is highly questionable and sometimes wholly absent.  Some would argue that it has abdicated a sense of responsibility in that regard.

3.  On occasions it has regarded challenges to it with an arrogant disregard of its obligations, or perhaps because it simply does not know how to regulate itself, or even because of the immense potential financial return, it does not want to exercise self‑regulation.

4.  It is in the public interest that modern technological means of disseminating offensive material, which may or may not be actionable, should not be free to use subterfuge, camouflage and secret methods to hide the sources of and full nature of its published information, so as to conceal those sources or withhold the means of access to the information and thereby defeat remedial action.  To be able to do so with impunity would bestow upon such organs of the media a protection from accountability and create a barrier to individual freedom.

5.  Some argue, with force, that the essential freedom of the press is a luxury indulged in with frequent examples of unwarranted harm to an individual’s basic human rights.  To allow an organ of the media the right to withhold details of publication — the sources of potentially, offensive material and the extent to which members of the public have had access to it — is to accord to it an immunity from litigation and offend all notions of justice with the inevitably dangerous consequences.

6.  Google — in this case — has admitted the fact of publication, now said to be in limited circumstances, somewhat belatedly in the hearing before me on 20 October 2016.  Prior to that it was seeking to argue what was patently unarguable.

7.  It contends that the extent of publication is limited, trivial and therefore should not be litigated.

8.  Who is in possession of the source, nature and extent of this publication to as to be able to determine this?  It is the defendant.

9.  Who ought to be in possession of the material in order to make the independent objective judgment?  The court.

10.  The defendant’s argument, stripped bare of its verbiage, and it is notably devoid of legitimate clothing, is that it should be the judge in its own cause, sadly a frequent contention in litigation or inquiries involving organs of the media.  It is not an argument to be tolerated.

11.  There are many circumstances in which a plaintiff is without the evidence to support its case simply because the alleged tortfeasor is in exclusive possession of it and has to be forced to divulge it.

12.  It is also contended that access to the offending material can only be obtained by using some key words, as if somehow the generality of those words and the absence of a specific identity, diminished the force and effect of the material ultimately received.  That is, I regret to have to say, nonsense.  The material revealed by the keyed in words is unarguably libellous, imputing to the plaintiff criminal, illegal, immoral and unethical activities.  It is offensive and actionable material, however directly or indirectly a member of the public gains access to it.

13.  I do not propose to comment in detail on the other grounds save to say they lack logic and/or proceed from a misunderstanding of my findings or my language.  It is not helpful to read into my judgment what is not there for the purpose of embellishing an argument. I make the following comments in order to illustrate this.

Ground (1)    “No presumption that material on internet has been published to substantial albeit unquantifiable number of people within the jurisdiction.”

Publication was admitted even if only for the purpose of these proceedings.  The basis of the plaintiffs’ claim is made out.  The defendants are in possession of the degree/extent of publication.  There is an inference that by withholding that information it is substantial.  I made no mention of presumption. Inference and presumption are entirely different things. 

Ground (2)    Publication minimal / proceedings disproportionate. 

This is virtually same point as in (1)

The material is unarguably libelous. Prima facie it affects the plaintiffs’ reputation.  The defendants are withholding from disclosure the extent and basis for reasonable assessment.

Ground (3)    320 hits is trivial

This is not a numbers game.  The defendants are not to be allowed to hide behind a self‑serving subjective analysis or statistic to fob off the plaintiffs and mislead a court by preventing it from having regard to accuracy, extent and nature.

Ground (4)    Search results generated by use of key words to record the material.

This is a bizarre argument.  The key words — being “key” words — lead directly to the offensive material. I have already dealt with this.

Ground (5)    Extent of alleged damage and vindication in the present case would be minimal.

It is impossible to advance this without complete examination of all material and sources.  There is no defence as yet, so it is impossible to consider whether fair comment or justification is likely to be advanced.  It impliedly concedes at least minimal damage etc. Once again defendant is seeking to impose its own self‑serving assessment without revealing the material on which it is to be based.

14.  Not only is it my view that there are no reasonable grounds for an appeal and it would not be in the interests of justice for leave to be granted but also that the defendant is wasting time and effort when it should be serving and filing its defence if it has one, so that the action can proceed.

15.  This application for leave to appeal is dismissed with costs.

HCA 2474/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2474 OF 2015

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HCA 2476/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2476 OF 2015

________________________

________________________

HCA 2477/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2477 OF 2015

________________________

(Heard Together)

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J U D G M E N T

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1.  This is a dispute between two heavyweight institutions of the media world. The plaintiffs are suing the defendant for defamation arising out of the publication by the defendant, an American corporation, on its website, which is available to people in Hong Kong, of material which is unarguably defamatory.

2.  The publication of the alleged libel was in Chinese and the translations appear in paragraph 13 of the affidavit of See Ling Yee Biana, the Vice‑President of the 1^st plaintiff, the holding company of the 2^nd and 3^rd plaintiffs, and in paragraphs 6, 8(2) and 8(3) of the Statement of Claim.  Assuming that there has been publication, the words and sentences of which the plaintiffs complain are clearly capable of constituting a libel.  I do not consider that there is any tenable argument against that.

3.  Furthermore, such words and sentences, if published in Hong Kong, are capable of exposing the plaintiffs to public hatred, contempt and/or ridicule and embarrassment, and loss.

4.  They have appeared, it is alleged, in a posting on a website address operated and/or managed and/or administered and/or hosted by the defendant since May 2008 (see paragraphs 4(1) and 12 of the affidavit ofSee Ling Yee Biana).

5.  User names have been identified in paragraph 4(5) and the plaintiffs seek the full details, identity, address, e‑mail address etc. of them.

6.  As far as publication is concerned, the defendant is in possession of the fact and extent of the publication, being the number of hits on the website.  The plaintiffs seek this information by way of an order for disclosure.  Although alerted to the defamatory content on the website by the News Agency of the 1^st plaintiff, and thus publication, the plaintiffs need to establish that there has been publication in Hong Kong.

7.  Before the issue of proceedings, the plaintiffs sent letters to the defendant in October 2013, February 2014 and April 2015 being notification of the alleged offending material on the website.  The defendant, it is alleged, failed to remove the offending material.  One calls to mind a paragraph in the judgment of Richards LJ in Tamiz v Google Inc [2013] 1 WLR 2151:

“... if Google Inc allows defamatory material to remain on a Blogger blog after it has been notified of the presence of that material, it might be inferred to have associated itself with, or to have made itself responsible for, the continued presence of that material on the blog and thereby to have become a publisher of the material.”

The failure of the defendant to act upon the requests in those letters is sufficient re‑inforcement of the plaintiffs’ case.

8.  The state of play thus far is that the plaintiffs have, on the face of it, a good cause of action in defamation.  In view of the experience of the plaintiffs and their solicitors, there is an overwhelming probability that there has been publication in Hong Kong and that people in Hong Kong have had access to the material.  In contrast to traditional forms of publication, only potential publishers, ie owners or managers of websites, have information as to how many persons have “hit” upon the material and where such persons are resident or based.  That information needs to be divulged.  The defamatory material is clearly capable of bearing the meaning alleged.  It is in some cases so explicit that there can be no argument.  Itis certainly capable of bearing the inferences and causing the harm and loss alleged.  The action is therefore well‑constituted.  In November last year (2015), the plaintiffs obtained leave to serve the proceedings upon the defendant out of the jurisdiction under Order 11, rule 1(1)(f) because it was seen that the claim was founded on tort and the damage was sustained, or resulted from an act committed within the jurisdiction.

9.  The defendant now seeks to set aside that leave on the basis that:

(1)  there is not a good arguable case that the claims fall within the ambit of that order/rule; and

(2)  there is no serious issue to be tried on the merits.

10.  Any defence that may or may not be available to the defendant on the basis of justification — fair comment or truth — is irrelevant at this stage.

11.  Miss Queenie Lau has provided me with a 27‑page skeleton argument which I have carefully read.  Many of those pages (8 or 9 in total)replicate contents of a number of cases whose facts and circumstances bear no resemblance to the case and situation before me.  I will deal shortly with some of them. Today Ms Lau concedes that publication is not in issue.

12.  In Jameel’s case (Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946) the defendants appear to have disclosed all the contacts ie recipients of the publication, which were two in number, apart from the ones upon which the claimant relied (who were described as being in the plaintiff’s camp — his solicitor and two others).  Neither of those two disclosed could recall the name of the claimant.  In contrast to the matter before me, the defendant has not provided even the number of “hits” so that the approach adopted in Jameel’s case does not apply.  As is so often the case, disputes of this nature, and others, are fact sensitive.  The circumstances vary so much.  The basic finding of fact was that:

“... the five publications that had taken place in this jurisdiction did not, individually or collectively, amount to a real and substantial tort. Jurisdiction is no longer in issue, ... it would not be right to permit this action to proceed. It would be an abuse of process to continue to commit the resources of the English court ... to an action where so little is now seen to be at stake. ...”

Lord Philips at paragraph 50 of his judgment was echoing the approach of Slesser and Scott LJJ in Kroch v Rossell et Cie Société des Personnes à Responsibilité Ltd [1937] 1 All ER 725.

13.  In relation to Jameel’s case, before I move on, it was asserted:

“ 74. Where a defamatory statement has received insignificant publication in this jurisdiction, but there is a threat or a real risk of wider publication, there may well be justification for pursuingproceedings in order to obtain an injunction against republication of the libel. ...”

14.  A relevant question identified by Eady J in Schellenberg v British Broadcasting Corporation [2000] EMLR 296 — is “the game ... worth the candle” or is there “any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources.”?

15.  Another is whether there has been a real and substantial tort within the jurisdiction (or arguably so).  This cannot depend upon a numbers game, with the court fixing an arbitrary minimum according to the facts of the case (Mardas v New York Times Company [2008] EWHC 3135).  Once again, inevitably and logically, the courts advert to the basis of each judgment — “according to the facts of the case.”

16.  Underlining this and the need properly to consider the factual matrix is a passage (§30) of the judgment of Sharp J in Sir Stelios Haji‑Ioannou v Dixon, Regus Group Plc and Regan [2009] EWHC 178:

“... it is not normally helpful to make detailed reference to the facts of other cases in which the court was invited to strike an action out as abuse. ...”

followed by (§31):

“Publication of a libel or indeed a slander, to one person may be trivial in one context, but more serious than publication to many more in another. Much depends on the nature of the allegation, and the identity of the person about whom and the person or persons to whom it is made. To that extent, the decision in eachcase is ‘fact sensitive’. However, the court should not be drawn into making its decision on the basis of contested facts material to the issue of abuse which ought properly to be left to the tribunal of fact to decide.”

17.  The scale of the current problem of communication of comments and assertions was succinctly expressed by the Lord Chief Justice, Lord Judge, in the judgment of the Court in Cairns v Modi [2012] EWCA Civ 1382 at §27:

“ ... we recognise that as a consequence of modern technology and communication systems any such stories will have the capacity to ‘go viral’ more widely and more quickly than ever before. Indeed it is obvious that today, with the ready availability of the world wide web and of social networking sites, the scale of this problem has been immeasurably enhanced, especially for libel claimants who are already, for whatever reason, in the public eye. In our judgment, in agreement with the judge, this percolation phenomenon is a legitimate factor to be taken into account in the assessment of damages.”

18.  In deference to Ms Queenie Lau’s industry and submissions I have paid more attention to the cases cited than is justified. It is not helpful or relevant in my view to lift general statements from judgments and seek to apply them to the broadest, and in some instances so far, unclear scenarios of fact, as absolute statements of universal applicability.

19.  A court:

“... would be entitled to take into account, as a matter of judicial notice, that the use of the internet, to ascertain information aboutparticular people, is now commonplace. Indeed, those searches have entered the everyday lexicon of the community, and the process of undertaking such a search, is commonly referred to as ‘to google’.” (Trkulja v Yahoo! Inc LLC [2012] VSC 88)

20.  The very fact that the defendant has not chosen to reveal (even as the basis of this application) the extent of publication by disclosing the “hits” and pertinent details, serves only to encourage the view that publication has indeed been on a scale which cannot be described as trivial or minimal.

21.  It is clear that the nature of the alleged offending material was aimed at an audience primarily within the jurisdiction of Hong Kong.  One of the primary reasons for these proceedings is to establish from material within the possession and/or control of the defendant, the nature and extent of the publication.  To date it is entirely reasonable to infer that there has been such significant publication.

22.  Publication to the plaintiffs’ agent, a third party, is nonetheless actionable publication, and the statistics from the “Average Monthly Searches” of a keyword in Hong Kong — 320 — is clearly sufficient to support the inference to which I have referred.

23.  As was observed by Callinan J in Dow Jones & Co Inc v Gutnick (2002) 194 ALR 433 at §181:

“A publisher, particularly one carrying on the business of publishing, does not act to put matter on the Internet in order for it to reach a small target. ‌It is its ubiquity which is one of the main attractions to users of it. And any person who gains access to the Internet does so by taking an initiative to gain access to it in a manner analogous to the purchase or other acquisition of a newspaper, in order to read it.”

24.  The history of the defendant’s involvement in litigation in Hong Kong is self‑evident and instructive, and especially so for the defendant — or ought to be so.  It is not necessary for me to review it.

25.  Of course, we come nowhere near the situation whereby this court is able to assess the full nature and extent of damage to the plaintiffs’reputation.  Therefore it is quite unnecessary for me to consider the range or extent of compensatory damages to which the plaintiffs may or may not be entitled.  That is a matter for the consideration of the trial court.  It is sufficient for present purpose that there has been clear evidence of publication of an actionable libel in Hong Kong.

26.  I regret to have to say that this application is misconceived and appears to be born out of an attempt to “put up the barricades”. Time, court time at least, has been wasted.  The plaintiffs’ action is well and properly constituted, whatever merits, or otherwise, of the cause of action may, in due course, be shown.  It is not to be stifled at birth.  The defendant’s summonses are dismissed with costs.  

27.  It is sad that it appears that many bad or weak cases generate excessive paperwork.  I express, also as a matter of some concern and regret, that much of the material in the affidavit and argument used in this application is naive.  It also, unfortunately, implies that judges either cannot or do not read and understand developments in the world of communications and their implications.