Albert Yeung's court victory over Google shows need for law to adapt
Cliff Buddle says our internet freedoms are increasingly being challenged in court, not least in Hong Kong where a ruling against Google has underscored the need for our laws to adapt
Entertainment tycoon Albert Yeung Sau-shing's court victory over Google earlier this month has raised fresh concerns about the use of libel laws to restrict the free flow of information on the internet. Yeung was given the green light by the High Court to pursue a novel defamation action against the US-based internet giant. He complains that when people google his name, they are prompted by the search engine's autocomplete function to use the term "albert yeung triad", damaging his reputation.
This, it seems, is the first case of its kind concerning autocomplete to be heard by a court anywhere in the common law world. And the stakes are high. Google's lawyer, senior counsel Gerard McCoy, told the judge the entire basis of the internet could be compromised.
Certainly, our ability to easily access the websites we want could be undermined if search engines are required to police the results automatically generated by tools such as autocomplete.
Deputy High Court Judge Marlene Ng May-ling's ruling is a preliminary one. She found the Emperor Group chairman to have a "good arguable case" against Google. This means - subject to any appeal by the company - the action can proceed to a full hearing. So the big decisions are yet to come.
The case is one of many in recent times in which courts find themselves striving to apply rules fashioned more than a century ago to today's world of internet surfing and social media.
During the Yeung case, Google's search engine was compared to a librarian sifting through index cards to identify relevant books for a reader interested in a particular topic. Among the more than 50 cases referred to Madam Justice Ng by lawyers in the case was one from England in the 1930s involving the posting of an item on a golf club's notice board and another dating back 150 years involving a newspaper article about the Duke of Brunswick.
It is easy to agree with the remark made by a Canadian judge that strict application of these old rules to the internet is "like trying to fit a square archaic peg into the hexagonal hole of modernity".
However, common law necessarily involves the application of principles established by the courts in past cases to new circumstances. As Madam Justice Ng said, the law must adapt. However, in the case of the internet, this is not an easy process. And there is a danger it will lead to a tamer, heavily censored internet.
At the heart of the Yeung case is the rather technical question of whether Google is to be treated by the law as a publisher of the results generated by its autocomplete function. If not, it cannot be liable should those results be damaging to someone's reputation.
Google argues it is merely a "passive facilitator". No human hand is involved in the creation of the results, which are generated automatically by computer programs and depend on web page content and previous search activity, the judge was told.
The company says it therefore has no control over the results thrown up by its algorithms. It would be impossible for it to monitor the outcome of a billion searches a day in 181 countries.
This is not necessarily the case, said Madam Justice Ng, who took the view it can be reasonably argued that Google is the publisher of the results.
Interestingly, the judge suggested Hong Kong has taken a more conservative line than the courts in England in this regard, pointing to a Court of Final Appeal decision concerning internet forums last year.
Madam Justice Ng also relied on cases from Australia and New Zealand which did not work in Google's favour.
The company, however, may take some comfort from the fact that a week after her ruling, the Supreme Court of New South Wales ruled in favour of it in a case raising similar search engine issues and stated that one of the key Australian decisions she relied on was wrong. Clearly, this is a fast-developing area of the law.
Other issues raised by the Yeung case are whether a ruling in his favour would amount to an improper curb on freedom of expression and whether he is abusing the court system by bringing a case in which the only people proved to have actually accessed the autocomplete results he complains of are members of his own staff and legal team.
There is a growing trend for the law to be used in an attempt to restrict what we can access on our computers, tablets and smartphones.
In May, the European Court of Justice ruled that Google must entertain requests from people wanting "irrelevant" information about them removed from internet search results. A right to be forgotten, it seems, is emerging. Privacy Commissioner Allan Chiang Yam-wang is pushing for the same principle to apply in Hong Kong, a worrying development.
Libel judges are now just as likely to be assessing the "sting" of a tweet or Facebook posting as they are that of a newspaper article or book chapter. Such is the reality of the way we exchange and access information today.
The internet makes it easier for our privacy to be invaded and our reputations tarnished. But it has also transformed our ability to communicate, to express ourselves and access information. We must be careful not to allow the law to sweep away the benefits of the worldwide web.
The courts have a responsibility to strike the right balance between privacy and reputation on the one hand and free expression on the other. It is not an easy line to draw. This can be seen by the fact that judges frequently disagree and the law in this area remains unpredictable.
Hard cases, it is said, make bad law. The Yeung case, if it proceeds to a full hearing, will be complex. The law which emerges must be clear - and must not unduly curb the internet freedoms we enjoy.
Cliff Buddle is the Post's editor, special projects