Defaming by Suggestion: Searching for Search Engine Liability in the Autocomplete Era

in "Comparative Perspectives on the Fundamentals of Freedom of Expression" (Andras Koltay, ed), Forthcoming

University of Hong Kong Faculty of Law Research Paper No. 2015/018

30 Pages Posted: 30 May 2015 Last revised: 17 Jul 2015

See all articles by Anne S. Y. Cheung

Anne S. Y. Cheung

The University of Hong Kong - Faculty of Law

Date Written: May 27, 2015

Abstract

Whilst different jurisdictions have yet to reach consensus on search engines’ liability for defamation, Internet giant Google is confronting judges and academics with another challenge: the basis of liability for defamation arising from its Autocomplete function. In 2014, for example, the Hong Kong Court of First Instance held that a claimant whose name was often paired with ‘triad member’ in Autocomplete had a good arguable case of defamation to proceed with and dismissed a claim of summary dismissal application made by Google in Dr Yeung Sau Shing Albert v Google Inc (Yeung v Google). Earlier, in 2013, the Federal Court of Germany held Google to be liable for violating a plaintiff’s personality rights and reputation for associating his name with ‘fraud’ and ‘Scientology’ in an Autocomplete search RS v Google).

The legal debate over the liability arising from the Autocomplete function captures the empowering and forbidding power of search engines. In examining the legal reasoning behind the Hong Kong case of Yeung v Google and German case of RS v Google, and comparing the two, this article argues that the orthodox approach to fixing responsibility for defamation, based either on the established English common law notion of publisher or innocent disseminator or the existing categories of passive host, conduit and caching in the relevant European Union Directive, is far from adequate to address the challenges brought about by search engines and their Autocomplete function. Whilst orthodox common law is strict in imposing liability in the case of a person’s participation in publication, and is fixated on identifying his or her state of knowledge and extent of control in the defamation action, the European Union approach is preoccupied with the over-simplified binary of seeing an intermediary as either an active or passive entity. The legal challenge posed by search engines, however, stems from the fact that they run on artificial intelligence. The legal issue should be redirected towards examining the possible role played by the algorithm creators in the content or result generated. Thus, this article argues that, in its Autocomplete function, Google indeed plays a unique role in contributing to defamatory content. Although the Hong Kong Court has not delivered any definitive answer on the role and liability of Google Inc., in a summary application, the German Court has rightly recognised the novel legal challenge that search engine prediction technology presents and treated search engines as a special intermediary processor. In the ‘search-in-progress’ of Autocomplete, Google is neither entirely active nor entirely passive, but rather interactive. Thus, imposing liability on Google in a defamation action based on its Autocomplete function is justified in a notice-and-takedown regime when a substantive complaint has been made.

Keywords: Autocomplete, search engine, defamation, Hong Kong, Germany, Google

Suggested Citation

Cheung, Anne S. Y., Defaming by Suggestion: Searching for Search Engine Liability in the Autocomplete Era (May 27, 2015). in "Comparative Perspectives on the Fundamentals of Freedom of Expression" (Andras Koltay, ed), Forthcoming; University of Hong Kong Faculty of Law Research Paper No. 2015/018. Available at SSRN: https://ssrn.com/abstract=2611074

Anne S. Y. Cheung (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://hub.hku.hk/rp/rp01243

Register to save articles to
your library

Register

Paper statistics

Downloads
257
rank
115,327
Abstract Views
1,482
PlumX Metrics