Oriental Press Group Ltd and Others v. Google Llc. (Formerly Known As Google Inc.)
Read the full judgment text of CACV 53/2017 on BabelCite. This Court of Appeal judgment was delivered on 6 February 2018.
1. In these three actions, the plaintiffs obtained leave to serve the writ against the defendant outside the jurisdiction pursuant to Order 11, rule 1(1)(f) of Rules of the High Court . The defendant applied to set aside the leave. Deputy High Court Judge Seagroatt dismissed the application and gave costs to the plaintiffs. The defendant now appeals.
Cited by 1 case · Cites 2 cases
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CACV 53/2017, CACV 54/2017 & CACV 55/2017 (HEARD TOGETHER) [2018] HKCA 69 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 53 OF 2017 (ON APPEAL FROM HCA NO. 2474 OF 2015) ________________________
________________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 54 OF 2017 (ON APPEAL FROM HCA NO. 2476 OF 2015) ________________________
________________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 55 OF 2017 (ON APPEAL FROM HCA NO. 2477 OF 2015) ________________________
________________________ (HEARD TOGETHER)
________________________ J U D G M E N T ________________________ Hon Cheung JA : I. The appeal 1.In these three actions, the plaintiffs obtained leave to serve the writ against the defendant outside the jurisdiction pursuant to Order 11, rule 1(1)(f) of Rules of the High Court. The defendant applied to set aside the leave. Deputy High Court Judge Seagroatt dismissed the application and gave costs to the plaintiffs. The defendant now appeals. II. The three actions 1) CACV 53/2017 2.1.The plaintiffs in CACV 53/2017 are as follows :
2.2.The plaintiffs’ claim is that on a day shortly before 8 April 2015, a search was carried out by the plaintiffs’ solicitors on the website with the words「白粉報」(translation : ‘white powder newspaper’). The website generated and published eight search results or snippets which contained words that are defamatory of the plaintiffs. 2.3.The Chinese names of the 1st plaintiff, ODN and TS, namely, 「東方報業集團」, 「東方報業」, 「東方日報」and 「太陽報」were expressly referred to in each of the search results. The plaintiffs complained that the words contained in the search results are defamatory of the plaintiffs and they meant and were understood to mean that :
2.4.The plaintiffs’ solicitor by a letter dated 8 April 2015 demanded the defendant to remove the offending words from the website but the defendant had refused to do so. 2) CACV 54/2017 2.5.The two plaintiffs in CACV 54/2017 are the Oriental Daily Publisher Limited and the Sun News Publisher Limited. The plaintiffs complained that the defendant is the provider, administrator, manager and operator of two websites. 2.6.On 3 March 2005 one of the websites (‘the CACV 54 first website’) posted and published an article, the title of which bears the words ‘white powder newspaper’. On the previous day, TS had published an editorial entitled「官僚蟻禍再毒咬 陰謀迫害何足懼」(translation : ‘bureaucrats harm [us] like [red] ants and bite [us] with poison [we have] no need to fear conspiracy to persecute’). The article published by the first website bears the same title of the TS editorial with the additional words「白粉報奇文共賞」(translation : ‘sharing of a peculiar article in white powder newspaper’) placed in front of that title. 2.7.On 31 December 2006 another article was posted on another website (‘the CACV 54 second website’), the title of which bears the words ‘white powder newspaper’. Earlier that day, ODN had published an editorial entitled「民主選出了狗熊~~梁立人」(translation : ‘Villains elected by democracy~~Leung Lap Yan’). The article published on the second website bears the same title with the additional words 「白粉報奇文共賞」(translation : ‘sharing of a peculiar article in white powder newspaper’) placed in front of the title. 2.8.The plaintiffs complained that the words in these two articles are defamatory and carried the same meaning as pleaded by the plaintiffs in CACV 53/2017. By three letters dated 7 November 2013, 11 March 2014 and 8 April 2015, the plaintiffs requested the defendant to remove the articles but the defendant had failed to do so. 3. CACV 55/2017 2.9.In CACV 55/2017, the plaintiffs are the same three plaintiffs in CACV 53/2017. The plaintiffs claimed that the defendant is the provider, administrator, manager and operator of two other websites. 2.10.On 13 May 2008 an article was posted in one of the websites (‘the CACV 55 first website’) which contained the words「仲以為睇緊白粉報功夫茶」(translation : ‘I thought I was reading white powder newspaper’s Ku Fu Tea column’) (‘the 1A Posting’). On the same day another article was posted on the same website with the words「基本上蘋果，東方，太陽等幾份報紙的評論、新聞報導大部份都是垃圾」(translation : ‘Basically the majority of the comments and news report of Apple Daily, Oriental Daily News and The Sun are rubbish’) (‘the 1B Posting’). 2.11.The plaintiff complained that the words ‘white powder newspaper’ in the 1A Posting were defamatory of the plaintiff with the same meaning as stated in paragraph 2.3 herein. The plaintiffs complained that in respect of the 1B Posting the words were defamatory of the plaintiffs and meant :
2.12.On 4 April 2012 an article was published in another website (‘the CACV 55 second website’) which contained the following words :
2.13.In respect of the 1B Posting the plaintiffs complained that the words bear the same meaning as stated in paragraph 2.3 herein. 2.14.The common thread in all three appeals is the use of the words「白粉報」(‘white powder newspaper’). 2.15.By two letters dated 28 February 2014 and 8 April 2015 respectively, the plaintiffs asked the defendant to remove the offending articles but the defendant had failed to do so. III. Real and substantial tort 1) The test 3.1.This is a unique case in the sense that the plaintiffs are not suing a local defendant in Hong Kong as of right but rather it seeks the permission of the Court to serve the proceedings on a foreign defendant outside the jurisdiction of Hong Kong under Order 11, rule 1(1)(f). It is common ground between the parties that in respect of publication on the internet, the test for the application of this rule depends on whether a real and substantial tort has been committed in Hong Kong. 3.2.In Jameel (Yousel) v Dow Jones & Co Inc [2005] QB 946, Lord Phillips of Worth Matravers MR held :
3.3.Earlier, Lord Phillips held :
3.4.In Jameel (Yousef) a foreign claimant issued defamation proceedings in England against the publisher of a US newspaper in respect of an article posted on an internet website in the USA, which was available to subscribers in England. The publisher averred that only five subscribers within the jurisdiction had accessed the internet article. The claimant accepted that there had been minimal publication within the jurisdiction. The first instance Judge refused the publisher’s application for summary dismissal of the claim. The English Court of Appeal allowed the appeal and struck out the claim as an abuse of process. 2) Striking a balance 3.5.The Court’s role in a defamatory action is to strike a balance between freedom of expression and protection of reputation. The Court of Final Appeal in Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 held :
3.6.In Jameel (paragraph 33) Lord Phillips referred to the following established principles : freedom of expression is one of the essential foundations of a democratic society and accordingly any restriction must be convincingly established, the burden of proof being on the party seeking to justify the interference. Further, restrictions directed against the media should be particularly closely scrutinised, since the media have a special place in any democratic society as purveyor of information and public watchdogs. 3) Requirement of substantial publication (1) Mere publication not sufficient 3.7.There is no dispute in the present case that the words complained of are capable of constituting a libel. Publication in Hong Kong is also admitted by the defendant. The defendant, however, disagreed that a real and substantial tort has been committed in Hong Kong. The contention in this appeal is whether there has been substantial publication. Mr Yu SC(together with Ms Queenie Lau) for the defendant submitted that the Judge had wrongly treated mere publication as sufficient and the Judge was also wrong to infer substantial publication. Mr Yu referred to Gatley on Libel and Slander 12th ed., which summarised the position :
3.8.In the words of Gray J in Al Amoudi :
3.9.The approach was followed in Tamiz v Google Inc [2012] EMLR 24 where Eady J held that :
3.10.At the same time, while the extent of the publication has to be established by the plaintiffs, one has to recognise the unique feature of publication on the internet. As Ribeiro PJ stated in Fevaworks Solutions Ltd :
3.11.Further the High Court of Australia observed in Dow Jones & Company Inc v Gutnick [194 ALR 433] :
(2) Corporate plaintiffs 3.12.Specifically, in respect of the plaintiffs who are corporations, Mr Yu submitted that they have failed to show any evidence of actual damage being suffered by them as a result of the publication. He referred to Euromoney Institutional Investor plc v Aviation News Ltd [2013] EWHC 1505 where Tugendhat J held that :
(3) Presumption of damage 3.13.Mr Yu argued that this is so notwithstanding the common law presumption that damages are presumed in a libel action because such presumption is qualified by the decision in Jameel (Yousef) which established that if the claimant’s reputation has suffered no or minimal actual damage, the action is acceptable to be struck out as an abuse of the process. 3.14.Gatley at paragraph 32.51 summarised the presumption of damage :
3.15.Lord Wolf in Jameel held that :
3.16.Gatley paragraph 32.51 suggested that :
(4) Reputation 3.17.Mr Yu further complained that the Judge had failed to consider the fact that the persons who had access specifically searched for the words「白粉報」(‘white powder newspaper’). The defendant argued that the Judge failed to consider sufficiently how the words complained of would damage the plaintiffs’ reputation in the eyes of a person who specifically searches for (and apparently already knows) the words「白粉報」. Mr Yu argued that the damage which a plaintiff has sustained must depend almost entirely upon the estimation in which he was previously held. He referred to Scott v Sampson (1882) 8 QBD 491 where Cave J at 503 held that :
3.18.Mr Yu argued that the ‘audience’ of the words complained of in the present case is even narrower than those in Jameel (Yousel),where the article was only accessible to the defendant’s subscribers, because they were persons who chose to search specifically for the words 「白粉報」(‘white powder newspaper’). 4) My view (1) Inference and substantial publication 3.19.In my view the Judge did not decide the case against the defendant simply because of the existence of publication. In my view, he had considered the evidence on the extent of publication and inferred that there was indeed substantial publication. 3.20.The plaintiffs in support of the application for service out of jurisdiction in CACV 53/2017 had given an estimate of the number of persons who might have read the defamatory words in that action. They used a tool provided and operated by the defendant, namely ‘Google AdWords’, which according to the defendant, is capable of showing the monthly average of the number of searches conducted on the ‘Google Search’ engine for any particular keyword in any specified location (the ‘Monthly Search Volume’). Such evidence was also used by Deputy High Court Judge Marlene Ng in Dr Yeung Sau Shing Albert v Google Inc [2014] 4 HKLRD 493. 3.21.By using the search keyword「白粉報」(‘white powder paper’) on ‘Google AdWords’ the search results show that for the ‘Average Monthly Searches’ in the approximate 12‑month period, the average of the number of searches on Google in Hong Kong was 320. 3.22.Mr Whitehead SC (together with Mr Lawrence Ng) for the plaintiffs submitted that the average figure translated into real terms, during the relevant period from 8 April 2015 (the date of the plaintiffs’ letter before action) to 26 October 2015 (the date of the writ, a period of 6.5 months), meant that there were approximately 2,000 publications/hits (320 x 6.5 equals to 2,080). 3.23.In my view, the Judge’s reliance on the ‘Average Monthly Searches in CACV 53/2017 clearly refutes the argument that the Judge had wrongly treated mere publication as sufficient. 3.24.Although the plaintiffs in CACV 54/2017 and CACV 55/2017 did not adduce any evidence on the number of searches of the offending articles, nonetheless, the relevance of the evidence in CACV 53/2017 set out in paragraphs 3.20‑3.21 above is arguably equally applicable to these two other appeals where the defamatory articles contained the words 「白粉報」(‘white-powdered newspaper’). This, as I have said, is the common thread of the three appeals. 3.25.It is argued by the defendant that the Judge was wrong to infer substantial publication and wrong to criticise the defendant for not disclosing the number of hits when the plaintiffs themselves had chosen to adduce this evidence. I think the real point is that if the defendant wishes to mount a case that the search was conducted by the same group of people associated with the plaintiff, then it should lay the evidence on the table. At the moment there is no evidence that the search results relied upon by the plaintiffs is somehow contrived and artificially created. 3.26.In my view based on this evidence it is arguable at this stage of the proceedings that, not only is there a sufficient platform for facts to be drawn, but also inference of substantial publication can be drawn as well. (2) Corporation 3.27.As to the position of the plaintiffs as corporations, this Court in Oriental Press Group Ltd Fevaworks Solutions Ltd [2012] HKLRD 848 [CA] had summarized the law :
3.28.I consider, for the purpose of the setting aside application, that if a corporation is accused of being associated with illegal and immoral activities, this must arguably be seen ‘as having a tendency to damage it in the way of its business’. 3.29.Further as Lord Bingham of Cornhill observed in Jameel (Mohammed) and another v Wall Street Journal Europe Sprl [2007] 1 AC 359 :
3.30.Baroness Hale of Richmond and Lord Hoffmann giving the minority view in Jameel (Mohammed) suggested that words formulated by Lord Keith in Derbyshire County Council that ‘which can be seen as having a tendency to damage it in the way of its business’ are to be substituted with ‘which can be shown to be likely to cause it financial loss’. At this stage of the proceedings, in the light of the evidence in which substantial publication can be inferred, the question of damages is clearly an issue that requires full discussion in the trial. 3.31.Further, as pointed out by Mr Whitehead, the requirement on financial loss under section 1 of the English Defamation Act 2013 which requires a body that trades for profit to prove that the harm to its reputation has caused or is likely to cause it serious financial loss has no equivalent statutory provision in Hong Kong. 3.32.As to the argument that ‘if there is no evidence of damage in respect of a trading corporation’s business, the inescapable inference is that it has not suffered any’, this is clearly a matter for full discussion at the trial. (3) Reputation 3.33.I do not see the relevance of the submission on the plaintiffs’ reputation. As correctly pointed out by Mr Whitehead, it is equally arguable that, on hearing the expression「白粉報」, a member of the public decides to find out which newspaper that refers to, then enters a search and then the plaintiffs’ names appear. Without proceeding to trial, the Court is not in a position to determine this issue in isolation of the relevant findings of fact. Accordingly, this issue is not appropriate to be dealt with on an interlocutory application. (4) Not a number crunching exercise 3.34.Both parties had cited a great number of cases on internet publication. Mr Whitehead had further referred this Court to cases lodged against Google in Hong Kong and also in Australia, such as Duffy v Google Inc (No. 1) [2015] SASC 170 (27.10.2015); Duffy v Google Inc (No. 2) [2015] SASC 206 (23.12.2015); Duffy v Google Inc [2017] SASCFC 130 and Trkulja v Google Inc LLC (No. 5) (2012) VSC 533. 3.35.In my view, it is important to bear in mind the principles rather than to look for the specific results in these cases by reference to the evidence on the extent of publication. The extent of publication in each case is fact sensitive. The Court is not concerned with a number crunching exercise. As Eady J observed in Tamiz (at paragraph 15) this cannot depend upon a numbers game, with the court fixing an arbitrary minimum according to the facts of the case. What matters is whether there has been a real and substantial tort within the jurisdiction (or, at this stage, arguably so). 3.36.In my view the plaintiffs have shown that there has been a real and substantial tort committed in Hong Kong for the purpose of service out of jurisdiction. The defendant’s appeal in CACV 53/2017 is misconceived. As to the other two appeals, notwithstanding the relatively old publication in CACV 54/2017 and CACV 55/2017, the offending articles have remained on the internet despite the plaintiffs’ request to remove them. Riberio PJ in Fevaworks (paragraph 111) observed that once an internal intermediary has received complaint or otherwise becomes aware of defamatory material on its website, ‘it is appropriate to require prompt action to take down’ such offending materials. Eady J in Mardas v New York Times Co [2008] EWHC 3135 referred to the continuing presence of the offending words on the website and held that :
3.37.In this case there is evidence of substantial publication which goes beyond modest readership. As Sir Thomas Bingham MR(as he then was) in John v MGN Ltd [1997] QB 586 at 607F‑G said ‘the most important factor is the gravity of the libel’ and the extent of circulation is also very relevant. With the existing state of evidence, the issue of how the balancing exercise is to be performed in these two appeals should best be left for the trial. At this stage, the plaintiffs have satisfied the threshold for their service out of jurisdiction application. IV. Respondent’s notice 4.It is not necessary to deal with the respondent’s notice in the light of my view on real and substantial tort. V. Conclusion 5.Accordingly, the three appeals are dismissed. VI. Costs 6.I will make a costs order nisi that the plaintiffs are to have the costs of the appeals against the defendant with a certificate for two counsel in all three appeals. Hon Yuen JA : 7.I agree with the judgment of Cheung JA. Hon Kwan JA : 8.I agree with the judgment of Cheung JA.
Mr Robert Whitehead SC and Mr Lawrence K F Ng, instructed by Iu, Lai & Li, for the Plaintiffs in CACV53/2017, CACV54/2017 and CACV55/2017 Mr Benjamin Yu SC and Ms Queenie Lau, instructed by Deacons, for the Defendant in CACV53/2017, CACV54/2017 and CACV 55/2017 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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