ORIENTAL PRESS GROUP LTD AND OTHERS v. GOOGLE LLC. (formerly known as GOOGLE INC.)

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)

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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)

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________________________

(HEARD TOGETHER)

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J U D G M E N T

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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 :

(1)   The 1^st plaintiff is a publicly listed company in Hong Kong and the ultimate holding company of the 2^nd and 3^rd plaintiffs.

(2)   The 2^nd plaintiff is the registered proprietor, publisher and printer of Oriental Daily News（東方日報）(‘ODN’), a daily Chinese newspaper.

(3)   The 3^rd plaintiff is the registered proprietor, publisher and printer of The Sun（太陽報）(‘TS’), a daily Chinese newspaper.

(4)   The defendant is an internet search and advertising technologies corporation with its headquarters in California, U.S.A.  It is the provider, administrator, manager and operator of the website 《www.google.com.hk》(the ‘website’).

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 1^st 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 :

(1)   The plaintiffs, ODN and TS were founded or established with money earned from drug trafficking;

(2)   The plaintiffs, ODN and TS are involved in drug trafficking activities;

(3)   The plaintiffs, ODN and TS are involved in illegal and immoral activities; and

(4)   The plaintiffs, ODN and TS are corrupt, illegal, immoral or unethical.

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 :

(1)   The plaintiffs, ODN and TS sell, print and publish rubbish newspapers; and

(2)   The plaintiffs, ODN and TS sell, print and publish newspapers not deserve reading.

2.12.   On 4 April 2012 an article was published in another website (‘the CACV 55 second website’) which contained the following words :

(1)   「抗議東方報業打壓言論自由，呼籲網民齊貼事實」(translation :‘Object Oriental Press Group’s suppression of freedom of speech, call all internet users for posting the truth’);

(2)   「東方報業上星期控告Uwants論壇誹謗，並要求論壇交出張貼文章者的個人資料。此等惡勢力利用其龐大資金濫用司法制度，大興文字獄禁止網民的言論自由，用卑鄙手段抹黑掩飾事實真相...把白粉報的惡行傳播開去」(translation :‘Last week, Oriental Press Group sued Uwants discussion forum for defamation and demanded the discussion forum to hand over the personal data of those posting the articles.  This kind of evil power, who makes use of its vast financial power to abuse judicial system, exercises literary persecution to prohibit freedom of speech of internet users, uses despicable means to blacken and cover up the truth...[we should] spread the evil deeds of the white powder newspaper’); and

(3)   「東方報業集團

1970年代香港有三大潮州幫海洛因大亨，分別是綽號「白粉馬」的馬惜如、他弟弟「金馬」馬惜珍，以及綽號「跛豪」的吳錫豪。馬惜珍在香港，負責收白粉、洗黑錢，再把賺來的錢投資在一般貿易公司，1969年，他又創辦「東方報業集團」，旗下主要報紙即是極力親台的中文東方日報，後來發展成為全港第一大報。報紙除了用作洗黑錢外，又作毒品消息通傳…馬惜珍從1978年起就定居台灣，運用洗錢過的犯罪所得開了好幾家合法公司…東方報業集團是他們事業成就最顯著的一個實例。」

(translation :‘Oriental Press Group

In the 1970s there were three Chiu Chow gang heroin tycoons, they were respectively Ma Sik Yu whose nickname is ‘white powder Ma’, his younger brother Ma Sik Chun whose nickname is ‘golden Ma’ and Ng Shek Ho whose nickname is ‘Lame Ho’.  In Hong Kong, Ma Sik Chun was responsible for dealing in ‘white powder’ (i.e. heroin) and laundering drug money, he then re‑invested the money in general trading companies.  In 1969, he established the ‘Oriental Press Group’, the flagship newspaper of which was the pro-Taiwan Chinese language ‘Oriental Daily News’, which later became the number one newspaper in Hong Kong.  Apart from being used for laundering money, the newspaper is also used for dissemination of news for drug trafficking ... Ma Sik Chun had settled in Taiwan since 1978, he used the money he had laundered from crime to establish several ‘legitimate’ companies ... The Oriental Press Group is an actual example of the achievement of their (i.e. Ma Sik Yu and Ma Sik Chun’s) careers.’)

(The 1B Posting)

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 :

‘ 50. It is in the context of an application to set aside service outside the jurisdiction on such grounds that the question of whether “a real and substantial tort has been committed within the jurisdiction” has been relevant......’ (emphasis added)

3.3.   Earlier, Lord Phillips held :

‘ 40. We accept that in the rare case where a claimant brings an action for defamation in circumstances where his reputation has suffered no or minimal actual damage, this may constitute an interference with freedom of expression that is not necessary for the protection of the claimant’s reputation. In such circumstances the appropriate remedy for the defendant may well be to challenge the claimant’s resort to English jurisdiction or to seek to strike out the action as an abuse of process....’ (emphasis added)

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 :

‘ 104. It is somewhat to state the obvious to point out that the law has always required a balance to be struck between the right to freedom of expression on the one hand, and the right to have one’s reputation protected against defamation on the other. The rights on both sides of that balance are constitutionally recognized in Hong Kong.’

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 12^th ed., which summarised the position :

‘ 32.9 Internet publication.  It has been decided that where defamatory material is posted on a website by an internet service provider there is publication of that material to any person who accesses that site and reads the material.  The place of publication is the place or places where the material is downloaded.  The same reasoning must apply to email, which is published to the persons to whom it is transmitted at the place where it is received.  Production of a printout of the offending material is likely to be regarded as sufficient evidence of publication to the addressees of email. However, as regards material posted on the internet there is no presumption that it will have been downloaded by a significant number of persons, or indeed anyone.  In Al Amoudi v Brisard [2006] EWHC 1062 (QB); [2007] 1 W.L.R. 113 Gray J. rejected a submission that once a posting on the worldwide web had been established, it was a rebuttable presumption of law that there had been publication to a significant number of identifiable persons in the jurisdiction who had downloaded the material.  It was a matter of inference, and the claimant must prove a sufficient ‘platform of facts’ for the inference reasonably to be drawn.’

3.8.   In the words of Gray J in Al Amoudi :

‘ A wider publication may be proved by establishing a platform of facts from which the tribunal of fact could properly infer that substantial publication within the jurisdiction has taken place.’ (emphasis added)

3.9.   The approach was followed in Tamiz v Google Inc [2012] EMLR 24 where Eady J held that :

‘ 24. .... Nowadays, of course, it will not generally suffice for a claimant merely to prove that the relevant material has been accessed, read or downloaded by some identified person(s). It is necessary to go further and show some ground for believing that it has been given a measure of credence and thus been liable to affect the claimant’s reputation in the eyes of such person(s). It is not enough to show, for example, that the words have been read by someone in the claimant’s “camp”, such as a solicitor, friend, relative or colleague who has attached no weight to it at all, as happened in Jameel (Yousef).’

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 :

‘ 59. In many instances, publications on the Internet involve a qualitatively different process, characterised by open, interactive, “many-to-many” communications made and accessed on platforms provided by Internet intermediaries. This is explained by Professor Jack M Balkin in the following terms.

.....

These new intermediaries are conduits for other people’s speech and communications.  Indeed, unlike twentieth century media, a key element of their business models is providing widespread, democratized, access to media and encouraging participation.  That is because their business models depend on user-generated content.’

3.11.   Further the High Court of Australia observed in Dow Jones & Company Inc v Gutnick [194 ALR 433] :

‘ [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.’

(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 :

‘ 20. ... A corporate claimant does not have feelings, and cannot therefore suffer the injury to feelings which account for a significant element of awards of damages made in favour of personal claimants. Further, in the context of a defamation claim, a corporate claimant does not have relevant rights under ECHR Art 8. On the other hand, defendants in defamation proceedings do have rights to freedom of expression at common law and under Art 10.

21.  In Derbyshire County Council v Times Newspaper [1993] A.C. 534 at 547 Lord Keith identified the kinds of damage which defamatory words might be likely to cause to a trading corporation.  He said:

“The authorities cited above clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. Examples are those that go to credit such as might deter banks from lending to it, or to the conditions experienced by its employees, which might impede the recruitment of the best qualified workers, or make people reluctant to deal with it.”

22.   This is not an exhaustive list, but few other kinds of damage have been suggested in the authorities to which I have been referred. In Adelson v Associated Newspapers Ltd [2007] EWCA Civ 701; [2008] 1 WLR 585 the Court of Appeal gave weight to a submission from counsel that there might be damage to a holding company’s activity in seeking licenses in the interest of its group.’

(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 :

‘ 32.51 Damage presumed. As a general proposition, the claimant in cases of libel or slander actionable per se need not prove actual damage, for:

“The law presumes that some damage will flow in the ordinary course of things from the mere invasion of his absolute right to reputation”.

“There is no obligation on the plaintiffs to show that they have suffered actual damage ... In every case (a plaintiff) is entitled to say that there has been a serious libel upon him, that the law assumes he must have suffered damage, and that he is entitled to substantial damages.” ’

3.15.   Lord Wolf in Jameel held that :

‘ 31 There have always been strong pragmatic reasons for proceeding on the premise that a defamatory publication will have caused the victim some damage rather than opening the door to the claimant and the defendant each marshalling witnesses to say that, respectively, they did or did not consider that the article damaged the claimant’s reputation.’

3.16.   Gatley paragraph 32.51 suggested that :

‘ It follows that trading companies should expect to lead evidence of actual or likely serious financial loss, and other claimants, including individuals, would be well advised (at least where there has been limited publication) to lead evidence of damage to reputation or evidence from which such damage may be inferred.’

(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 :

‘ Speaking generally the law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action. The damage, however, which he has sustained must depend almost entirely on the estimation in which he was previously held. He complains of an injury to his reputation and seeks to recover damages for that injury; and it seems most material that the jury who have to award those damages should know if the fact is so that he is a man of no reputation.’

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 :

‘ 12. That is not to say that the reputation of a corporate body is a thing of no value. Lord Scott of Foscote expressed it thus in the same case (para.120):

The reputation of a corporate body is capable of being, and will usually be, not simply something in which its directors and shareholders may take pride, but an asset of positive value to it.

13. For that reason, a libel is actionable at the suit of a corporation as it is at the suit of an individual without the need to prove that actual damage has been caused: see South Hetton Coal Co Ltd v North Eastern News Association Ltd [1894] 1 QB 133, CA.

14. Damages being at large, it is for the court to award such amount as it thinks fit having regard to the circumstances of the case.

15. The South Hetton Coal Co Ltd v North Eastern News Association Ltd judgment, however, contains an important qualification, one that recognises the fundamental difference in the reputation that attaches to a person and a corporation. The qualification was enunciated by Kay LJ in the following terms (p.148):

[A] trading corporation may sue for libel calculated to injure them in respect of their business, and may do so without any proof of damages general or special, although, where there is no such evidence, the damages given will probably be small.’

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 :

‘ 17 In Derbyshire the correctness of South Hetton was not challenged, but acceptance of its correctness was an important step in Lord Keith’s reasoning and I find no ambiguity in the proposition he propounded: the authorities clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. In Shevill v Presse Alliance SA [1996] AC 959, decided some three years later by a differently constituted committee of the House, one of the plaintiffs was a trading corporation and the presumption of damage in libel cases was treated as part of our national substantive law. I conclude that under the current law of England and Wales a trading company with a trading reputation in this country may recover general damages without pleading or proving special damage if the publication complained of has a tendency to damage it in the way of its business.’ (emphasis added)

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 :

‘ ..... That fact naturally gives rise at least to a possible inference that there has been a continuing, albeit modest, readership.’

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.