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

_______________________

_______________________

HCA 2476/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTIONS NO 2476 OF 2015

_______________________

_______________________

HCA 2477/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTIONS NO 2477 OF 2015

_______________________

(Heard Together)

_______________________

JUDGMENT

_______________________

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.