Lin Yang (current PhD) on China’s Three Internet Courts (Amicus Curiae)

"China’s Three Internet Courts"
Lin Yang (Currently PhD candidate, supervisor: Professor Zhao Yun)
in Amicus Curiae, Series 2, Vol 2, No 3, 531-538
Published in 2021

Introduction: With arguably the most developed e-commerce business in the world, the People’s Republic of China has recently set up several Internet Courts to handle internet-related cases. Alongside this new development in information technology use by the Chinese judiciary, there have also been reforms in the direction of ‘diversified dispute resolution’ processes, encouraging greater processual pluralism. The development of internet courts is part of China’s larger project of ‘judicial reform’ and combines deployment of new information and communication technologies. The internet and other information technology tools are used to handle litigation more efficiently and are also seen as contributing to the building of a more pluralistic dispute resolution system. China’s Supreme People’s Court in particular is encouraging digitization and utilization of cyberspace and technologies such as blockchain and cloud computing to streamline the handling of cases within China’s vast court system. China established three Internet Courts in Hangzhou, Beijing and Guangzhou on 18 August 2017, 9 September 2018 and 28 September 2018, respectively. The emergence of Internet Courts as sites of court ‘informatization’ and multiple processes of dispute resolution has led to new discussions within China about such issues as potential challenges to the traditional rules of judicial adjudication, and how best to integrate emerging technologies with the processes of trial and adjudication in the court.

Haochen Sun Interviewed on National Security Law Implications for Facebook, Twitter, Google in Hong Kong (WSJ)

"Facebook, Twitter, Google Face Free-Speech Test in Hong Kong: New national-security law means authorities can ask companies to delete users or their content"
Newley Purnell and Eva Xiao

The Wall Street Journal
3 July 2020

HONG KONG—U.S. technology titans face a looming test of their free-speech credentials in Hong Kong as China’s new national-security law for the city demands local authorities take measures to supervise and regulate its uncensored internet.

     Facebook Inc. and its Instagram service, Twitter Inc. and YouTube, a unit of Alphabet Inc.’s Google, operate freely in the city even as they have been shut out or opted out of the mainland’s tightly controlled internet, which uses the “Great Firewall” to censor information....

     “Tech companies will absolutely receive more requests to remove information that is allegedly harmful to national security from the relevant authorities,” said Haochen Sun, a law professor at the University of Hong Kong. He said companies will face difficulties especially with borderline cases, such as potential requests to remove songs, for instance, that protesters have used in antigovernment demonstrations... Click here to access the online article.

Congratulations to HKU Law Student Finalists in Law Reform Essay Competition 2020

Congratulations to the 7 HKU Law student finalists in this year's Law Reform Essay Competition organised by the Law Reform Commission of Hong Kong. The topic was 'Internet Intermediaries Liability in Defamation – Should the Law in Hong Kong be Reformed'?  We are very pleased to see that all the finalists this year are HKU law students.  The seven students are

• KWOK Yu Hin (PCLL), 
• LAM Ching Wang (Bachelor of Laws (Year 2)), 
• LAW Kwan Pui Paul (Bachelor of Laws (Year 3)), 
• LEE Wai Chau (Bachelor of Social Sciences (Government and Laws) and Bachelor of Laws (Year 3)), 
• NGAN Sum Long Nicole (Bachelor of Business Administration (Law) and Bachelor of Laws (Year 5)), 
• WAN Pui Hin (Bachelor of Arts and Bachelor of Laws (Year 5)) and 
• YEUNG Jun Tao (Bachelor of Social Sciences (Government and Laws) and Bachelor of Laws (Year 4)). 

All of their essays can be downloaded here. The Law Reform Commission will normally hold a ceremony to honour the students later in the year.

Yun Zhao et al on Identity Construction of Suspects in Telecom and Internet Fraud (Social Semiotics)

"Identity construction of suspects in telecom and internet fraud discourse: from a sociosemiotic perspective"
Ning Ye, Le Cheng & Yun Zhao
Social Semiotics
Published online: 25 Mar 2019

Abstract: As a new kind of contactless crime, the telecom and internet fraud has become a public hazard, with criminals targeting massive numbers of innocent victims. It is a prominent criminal problem that currently affects social stability and the sense of security of the public. Since the six Ministries and Commissions jointly cracked down the crime in 2016, the number of cases and the number of people deceived have decreased, but the occurrence and frequency has still been at a high rate, and the situation is deteriorating. Regardless of the scientific and technological means used by fraudsters, the main medium is language. From a sociosemiotic perspective, this study identifies that the criminal suspects use the discourse resources to fabricate false information and construct false identities through discursive practice, with the aim of achieving the communicative purpose of obtaining victims’ trust, tricking, deceiving and manipulating their victims into giving out confidential information and funds. This study, taking telecom fraud discourse as one type of genre, examines the dynamic process of selecting and constructing identities by manipulating related discourse resources and strategies in the social-cultural context. This study further provides a sociosemiotic solution to telecom fraud prevention.

Yun Zhao on Online Privacy and Personal Data Protection in China (new book chapter)

"Online Privacy Protection: A Legal Regime for Personal Data Protection in China"
Yun Zhao
in Chinese Legal Reform and the Global Legal Order: Adaption and Adoption, (Cambridge University Press, Nov 2017), pp. 156 - 178

Introduction: Privacy is an important right in modern society, but we lack a clear and universal definition of the concept of 'privacy'.  Generally speaking, privacy belongs to the set of human rights that protects individuals' private information from unlawful interference, use and disclosure.  Private information can include personal life, personal information and private communication.  The Electronic Privacy Information Center (EPIC) and Privacy International (PI) divide privacy into four categories: information privacy, bodily privacy, privacy of communications and territorial privacy.

     The cyberspace created by the Internet has brought the world closer than ever before; geographical boundaries are no longer important, as information can transcend national borders easily. Technological developments have rendered the easy collection, storage, analysis, instantaneous disclosure and wide dissemination of private information possible at low cost.  Such tools as cookies and web bugs are widely used for online information collection, which is often carried out without users' knowledge.  The online sharing culture and active netizen participation pose serious challenges to privacy protection online.  First, the scope of online privacy and information is expanding rapidly.  In addition to such traditional data as land line and mobile telephone numbers, the privacy of such online personal data as email addresses, user names and instant messaging information (e.g. QQ numbers) is receiving increasing attention from the public.  Second, online data are increasingly important to merchants.  Hence, online privacy and information should be understood in both personal and economic terms.  For example, personal data have become a valuable asset in transactions carried out online.  Information collected by online merchants is used to create personal profiles indicating consumer preferences, which subsequently helps merchants to devise tailored marketing strategies.  Privacy protection online is thus receiving unprecedented attention.  As far as the Internet is concerned, of the four categories identified by EPIC and PI, information privacy is the primary concern.  Discussions in this arena concern how best to ensure the legal and reasonable use of online information.  Accordingly, this chapter examines the protection of online information, or personal data protection, rather than other aspects of privacy in the context of China.
     China does not have a strong tradition of privacy protection.  As one scholar has correctly observed, the general population of China does not know what the concept of privacy is.  Chinese history presents a picture of non-respect for privacy protection, particularly during the country's successive dynasties and, more recently, the Cultural Revolution period.  The online censorship created by the Great Firewall of China is another example of the downplaying of privacy protection in China.  However, the situation is changing.  The Chinese government has realized the importance of online privacy protection and taken initiatives to improve the legal regime governing it.  Chinese citizens' awareness of the need for privacy is also rising along with serious threats to personal data.   Furthermore, an increasingly globalized marketplace requires the existence of a data protection regime on par with the standards of other jurisdictions for the promotion of economic activities.  

     This chapter starts the discussion against this backdrop.  Section 2 briefly examines the current situation of privacy protection at the international level, followed by a closer examination of the current legal regime for privacy protection in China in Section 3.  The discussion of the relevant laws and regulations in China is by no means exhaustive.  In recent years, the Chinese government has taken a number of important steps to protect personal data.  Section 4 discusses these new initiatives and confirms that we would be optimistic about future developments in the field in China.  Section 5 continues with analysis of the problems with the current legal regime in China and shows the possible ways ahead for personal data protection in the country in future.  The chapter concludes in the final section that China is moving steadily, though slowly, towards the construction of a fair legal regime for personal data protection.

Artem Sergeev on The Right to Internet Access in China (Int'l J L & IT)

"The right to internet access: assessing the impact and the merits of compliance through an example of modern China"

Artem Sergeev (PhD candidate)
International Journal of Law and Information Technology

Oct 2017 (Advance Articles), 27 pp

Abstract: Considering the valuable effect of the Internet on the modern world, it was argued that the cyberspace is protected under international law. Following the argument, the article discusses to what extent the Internet is protected under international law and what is the possible qualitative impact of the general right to the Internet. Primarily relying on examples of Chinese internet policy, the article deals with three key issues. First, the article evaluates the legal grounds to claim the existence of the right to the Internet. Secondly, the article outlines the international protection given to the internet by studying whether online censorship in China violates international treaties. Third, the article argues the possible qualitative impact of the widespread internet access on other civil rights. The focus on China is explained by Chinese far-reaching censorship and a general amount of internet users. The article concludes that the internet per se despite being considered as a right has a limited impact on democratization and protection of civil freedoms. As to the broader academic implications, first, the article illustrates the ways of indirectly applying treaties through Article 18 of VCLT. Secondly, it exemplifies the practical means to assess compliance with Human Rights norms academically. Lastly, it illustrates that implementation of certain Human Rights can have a limited impact.

Farzana Aslam Interviewed on Apple's Removal of New York Times App in China (NY Times)

"Apple Removes New York Times Apps From its Store in China"
Katie Benner and Sui-Lee Wee
The New York Times
4 January 2017

Apple, complying with what it said was a request from Chinese authorities, removed news apps created by The New York Times from its app store in China late last month.

     The move limits access to one of the few remaining channels for readers in mainland China to read The Times without resorting to special software. The government began blocking The Times’s websites in 2012, after a series of articles on the wealth amassed by the family of Wen Jiabao, who was then prime minister, but it had struggled in recent months to prevent readers from using the Chinese-language app.

     Apple removed both the English-language and Chinese-language apps from the app store in China on Dec. 23. Apps from other international publications, including The Financial Times and The Wall Street Journal, were still available in the app store.

     “For some time now the New York Times app has not been permitted to display content to most users in China and we have been informed that the app is in violation of local regulations,” Fred Sainz, an Apple spokesman, said of the Times apps. “As a result, the app must be taken down off the China App Store. When this situation changes, the App Store will once again offer the New York Times app for download in China.”

...

     Farzana Aslam, associate director of the Center for Comparative and Public Law at the University of Hong Kong, noted that in matters involving customer privacy, Apple requires governments to submit subpoenas, search warrants or other legal documents. 

     “Maybe in the end they have to do it, but I think there’s something to be said about standing up for what you believe in and purporting to put principle before profit in a country like China, to show that actually there is this tension there,” Ms. Aslam said. “It’s not as simple as, ‘Because we operate in your jurisdiction, we’ll do anything you ask of us.’”... Click here to read the full article.

Li Yahong Partners in HK$1.44M ARC Project on Digital China

The Australian Research Council has awarded a HK$1.44M Discovery Project to Professor Michael Keane of Curtin University of Technology for the inter-disciplinary project "Digital China: from cultural presence to innovative nation". The project investigates how digital platforms and technologies are enabling Chinese culture and ideas to reach the world. It argues that while China's global cultural presence has increased it is yet to be seen as an innovative nation. The project examines how the Chinese government’s internet+ strategy is changing power dynamics among political institutions, commercially motivated digital companies, and online communities. Through investigating internationalisation strategies and consumption of Chinese culture on digital platforms in China, Australia, Hong Kong, Singapore and South Korea the project contributes to understanding the implications of China's digital ascendency and the lessons for Australia in the post-resources boom era.  Li Yahong is a partner investigator to this project which involves institutions from Australia, Hong Kong and Mainland China.  The project will run for five years starting from 2017.

Marcelo Thompson Speaks on AI Panel at Peking-Stanford-Oxford Conference (9-11 Dec 2016)

Marcelo Thompson was a panelist on "The Future of Artificial Intelligence, Law and Policy" at the Peking-Stanford-Oxford Internet Law and Policy Conference 2016 held in Shenzhen, China from 9-11 December 2016. The panel description was as follows:

"Though artificial intelligence (AI) technologies are at the primary stage, AI devices, which are designed for certain tasks, with self-learning and decision-making capability that based on big data analysis are showing us the broad and promising application prospect. What will be the future of artificial intelligence? How to make AI be the safe and trustable tools? How to avoid and prevent the bias and discrimination cause by insufficient data sources and algorithms? How will the accidents and disputes caused by AI decisions challenge the implementation and evolution of current rules of tort laws, contract laws, criminal law, etc.? What role will government regulation play in the development of AI? This panel will explore a series of cutting-edge issues on AI, law and policy."

New Book: Copyright, the Internet and the Balance of Rights (Yahong Li)

Copyright, the Internet, and the Balance of Rights

Edited by Li Yahong

Hong Kong University Press

November 2016, 176 pp., Language: Chinese

Description: Creativity is the engine of social and economic development. In a legal system, the copyright law system is closely related to creativity, especially the creativity in the cultural and creative industries. But only a balanced copyright system that takes account of the interests of different parties can promote creativity. Therefore, we must constantly examine whether the existing copyright system can reflect the interests and practical needs of different parties, especially in the context of the Internet.

     Copyright, Network and Balance of Rights explores the issues of fair use of copyright in the Internet environment, the rights and status of users, the abuse and balance of rights, piracy and the responsibility of network service providers. It discusses the legislation and judicial reform for the above-mentioned issues in Mainland China, Hong Kong and Taiwan, and explores how to achieve the best balance among parties and maximise social creativity under the internet environment. This book has eight chapters in total, divided in two parts. The first part discusses the balance, abuse and fair use of copyright; the second part focuses on the identification of internet infringement and liability.

The Author: Li Yahong, JSD, Stanford University; Associate Professor, Faculty of Law, The University of Hong Kong; Program Director, Intellectual Property and Information Technology; has long been engaged in teaching and researching on patent and technology innovation, copyright and creative industries.  Contributors include Dr Tao Zhongyi (SJD 2015) on fair use in the digital environment in China, Dr Hua Jie (PhD 2013) on constructive knowledge on ISP liability, and Dr Hu Ling (PhD 2011) on the commercial origin of China's digital copyright.

"This book examines the copyright, network and rights balance matters from a cross-strait and comparative perspective, it helps to promote the development of the copyright law system in the three places, which is worth reading."

   - Professor Liu Chuntian, President of Intellectual Property Law Association, Professor of Renmin University of China

"This book provides an in-depth discussion of key issues in the field of Internet copyright (copyright) in the three places and provides insightful analysis for intellectual property scholars, students and practitioners." 

   - Prof. Kung-Chung Liu, External Director, Applied Research Center for Intellectual Assets and the Law in Asia, School of Law, Singapore Management University; Research Fellow, Institutum Jurisprudenliae of Academia Sinica 

"This book brings together senior and young intellectual property scholars from China, Hong Kong and Taiwan, exploring the important issues related to copyright reform, cybercrime and fair use. Audiences who are interested in understanding the copyright law system in Mainland China, Hong Kong and Taiwan should not miss it. " 

   - Peter K. Yu, Co-Director, Center for Law and Intellectual Property, School of Law, Texas A & M University, USA

Anne Cheung on Microbloggers' Battle for Legal Justice in China (new book chapter)

"Microbloggers' Battle for Legal Justice in China"
Anne Cheung
in Jacques deLisle, Avery Goldstein & Guobin Yang (eds), The Internet, Social Media, and a Changing China (University of Pennsylvania Press 2016)
pp 129-149

The relationship between courts and the media is not an easy one in many countries, and China is no exception. While trial by media is often frowned upon in the West, its close variation—known as “public opinion supervision”—has been embraced in China. The latter term was coined by the Chinese Communist Party (the Party) in the 1980s to describe the mobilization of citizen awareness and public opinion by the media to check deleterious forces within the state under the guidance and supervision of the Party. The objects of scrutiny by public opinion supervision have included the courts, with the media acting as a state agent between the authorities and the citizenry. 

     By the dawn of the twenty-first century, Web 2.0 had changed this dynamic. Armed with the Internet, public opinion has become a powerful force. Free from Party supervision and seemingly holding the potential to provide genuine monitoring, this “public opinion monitoring” differs from public opinion supervision. It is an independent force arising from the citizenry and seeking to hold the government accountable, to prevent abuses of power, and to bring justice and fairness to society. The Internet has played an indispensable and prominent role in fostering this form of citizen monitoring. As Guobin Yang points out, the Internet in China is an arena of intense struggle, full of complex dynamics and participatory and contentious in nature. This struggle is also being played out in legal disputes, posing new challenges to the judiciary... Click here to read further.

Marcelo Thompson on the Normative Responsibility of Internet Intermediaries (Vanderbilt JETL)

"Beyond Gatekeeping: The Normative Responsibility of Internet Intermediaries"

Marcelo Thompson
Vanderbilt Journal of Entertainment & Technology Law
Summer 2016, Vol. 18, Issue 4, pp 783-849

Abstract: This Article puts forward a normative approach to the responsibility of Internet intermediaries for third-party content they host. It argues that, in thinking about intermediary liability, the focus should be on intermediaries’ responsibility towards the reasoning processes in reaching decisions, rather than on the outcomes of intermediaries’ decisions. What is necessary is a framework that, while attaching responsibilities to such decisions, creates a cushioning system for their making, mitigating the hardship of honest mistakes. Within this framework, intermediaries must be seen not as mere keepers of gates, but as designers of artifacts whose use plans settle normative questions and play a vital role in the construction of our normative reality. Accordingly, an interpretive commitment must be required toward the integrity of such a reality. Every time intermediaries make a decision, as they always will and should—in all of this hidden jurisprudence—the integrity of our normative order and the values it reflects are at stake. This commitment to integrity must be seen as part of a broader concern with justice (both corrective and normative) in the internal life of the information environment. For the same reason, however, we should expect responsible efforts, not perfection, from intermediaries. Like journalists who are entitled to make mistakes, if only they seek responsibly to avoid the same (which is the idea of responsible communication in defamation), so it should be with Internet intermediaries. Understanding the above enables us to move away from outcomes-based approaches towards a more granular and fair system of intermediary liability.  Click here to download the article.

Marcelo Thompson on Responsible Communications by Internet Intermediaries (LSE Blog)

"Responsible Communications by Internet Intermediaries"
Marcelo Thompson
LSE Media Policy Project Blog
8 July 2016

In debates concerning Internet intermediary liability, an often-expressed view is that intermediaries (such as Facebook and Google) shouldn’t be turned into adjudicators, who reason and decide about the legal or illegal nature of content they host, and thus about whether or not to take such content down. But is that a plausible view?

     Intermediaries, after all, necessarily must and will make such decisions in one way or another. Once notified of the existence of content that violates people’s privacy, reputation, or children’s rights, can intermediaries avoid weighing those rights against freedom of expression and vice-versa?

     Sure, we could compel intermediaries to defer everything to the courts. Yet, courts don’t work in Internet time, geography, or economy. The consequence would be that, with content remaining online, freedom of expression would always win, and other rights lose.

     But there is a second reason why we wouldn’t want to defer everything to courts. Isn’t it at the very core of any activity to make decisions that are central to it? And what is more central to being a host than making decisions about … hosting? Remove the reason element from any practice and we are left with a rather impoverished expression of it.

     The real problem with Internet intermediaries isn’t having private actors making legal decisions. We all make decisions about right and wrong all the time, and the law is, ultimately, a living expression of the multitude of these decisions. The real problem with Internet intermediaries is rather how, with what diligence, public spirit, and, indeed, responsibility they make the decisions they make.

     Yet, a concern with this ‘how’ is nowhere to be found in existing liability regimes. Rather, these regimes rely on arbitrary, outcomes-based approaches that entirely do away with reason. Their focus is placed on the – however wrongful – legally automatic tilting of the takedown scale to favour rights on one side or another, rather than on the reasoning processes through which the scale tilts... Click here to read the full article.

Dr Yahong Li Delivers CREATe Studio IP Lecture at Glasgow University

On 25 May 2016, Dr Yahong Li delivered a public lecture on user generated-content and fair use in Hong Kong in the CREATe Studio Spring/Summer 2016 Lecture Series at the University of Glasgow. The description of her lecture is as follows:

"Aiming at bringing Hong Kong’s copyright protection in line with the international trend, particularly with regard to copyright protection over Internet, Hong Kong government started copyright law amendment in 2006. 10 years have passed but the law is still unchanged. The Copyright (Amendment) Bill has been repeatedly dropped by Hong Kong Legislative Council (LegCo) due to pan-democratic lawmakers’ filibusters. Outside the LegCo, Hong Kong netizens used violence to protest the Bill. The legal issues such as whether the user-generated-content (UGC) should be treated as a fair use, and whether online copyright infringement should be criminalized have been escalated to a political issue of freedom of speech and press.

Why has the law reform encountered the unprecedented opposition from the public in Hong Kong (and the political party representing them)? What is the cultural, social and political backdrop that has influenced the amendment process? This talk will answer these questions by looking at not only the legal issues being debated, the respective positions taken by the Hong Kong government and the public, but also the complicated relationship between Hong Kong and the Mainland China, and the cultural and social changes caused by this relationship during the past 10 years. The talk will also shed some light on how Hong Kong government should move forward with respect to its copyright law reform, and why its copyright law reform should not only follow the international trend but also be watchful of the copyright law reform in the mainland China, particularly on UGC and fair use."

Dr Li was the second invited speaker in this lecture series.  CREATe is the RCUK Centre for Copyright and New Business Models in the Creative Economy based at the University of Glasgow. CREATe Studio is an "interdisciplinary reading group which encourages researchers from a variety of academic backgrounds to read new things, obtain feedback and meet with peers to share ideas".

Report on the HKU Big Data and Privacy Workshop

The Law and Technology Centre (the “Centre”) of The University of Hong Kong’s Faculty of Law had the pleasure to host the Workshop: Big Data and Privacy on 30 November 2015. The Workshop was part of a collaborative research project on Big Data and Privacy by Professor Anne SY Cheung of the Centre and Professor Wolfgang Schulz of the University of Hamburg. It was supported by the Germany-Hong Kong (“DAAD”) Research Grant.

     Revolutionary means of generating and processing voluminous and diverse data sets across different sectors are constantly being developed, with big data increasingly being employed in business, governance and social life. While big data has the potential to add immense social and economic value and serve the common good, it also impacts on the privacy of individuals and challenges the effectiveness of traditional legal frameworks for data protection.

     As solutions to many of these data privacy issues remain obscure, speakers from the University of Hamburg, Germany, Academic Sinica, Taiwan, and HKU (not only from the Faculty of Law, but also from the Faculty of Social Science, the Departments of Computer Science and Statistics) gathered to discuss these weighty issues. In addition to having input from academics, the Workshop also had speakers from regulatory body, the IT industry and a private law firm, including the Privacy Commissioner’s Office, Microsoft and Winston & Strawn LLP.

     Speakers reviewed the challenges that Big Data has posed for business, medical and healthcare providers and social movements. Furthermore, it also explored privacy implications and data protection measures in data-driven businesses, including profiling, monitoring and predictive analysis. Rather than providing ready solutions, the workshop aimed to shed light on our understanding of the desirable use of Big Data. Legal developments in Hong Kong, Taiwan, mainland China, Germany and the European Union were discussed... Click here to read the rest of the report published in Hong Kong Lawyer (Jan 2016).  The photos from the workshop can be accessed here.

James Fry on Internet Surveillance in the US and China (UPenn J Int'l L)

"Privacy, Predictability and Internet Surveillance in the U.S. and China: Better the Devil You Know?"

James D. Fry

University of Pennsylvania Journal of International Law

Vol. 37, Issue 2, 2015, pp 419-501

Introduction (excerpt): The People’s Republic of China (“PRC”) has received considerable criticism from the United States for the human rights issues raised by its Internet surveillance program. For example, according to a 2012 Congressional Research Service (“CRS”) Report for Congress, Freedom House ranked the People’s Republic of China as “one of the five countries with the lowest levels of Internet and ‘new media’ freedom.” Some Western commentators echo this same type of criticism of the PRC’s Internet surveillance program. At first glance, such criticism seems overwhelmingly justified, if not for any other reason that approximately seventy PRC citizens have been incarcerated for writing about politically sensitive topics online in the past few years, which has raised serious concerns over the freedom of speech there. It is difficult to assess the validity of this criticism of the PRC’s Internet surveillance laws and policies without clearly designating a referent. Using U.S. Internet surveillance laws and policies as the referent, PRC Internet surveillance laws and policies arguably can be seen as more in line with international human rights norms, especially with regard to predictability, although that might be changing on account of the recent Snowden revelations. While the Snowden revelations undoubtedly have had catastrophic effects on national security, they potentially have helped improve the human rights situation in the United States by disabusing U.S. citizens of the notion that the U.S. Constitution actually protects them from unreasonable Internet searches and seizures by the government.
     In presenting and defending this argument, this article is divided into five parts, including this brief introduction and an equally brief conclusion in Parts 1 and 5, respectively. Part 2 sets out the obligations under international law concerning Internet surveillance, which is helpful in assessing the U.S. and PRC approaches to Internet surveillance. Part 3 explores the U.S. laws governing Internet surveillance — especially the Foreign Intelligence Surveillance Act (“FISA”) and the USA Patriot Act. Part 4 analyzes the PRC laws governing Internet surveillance. While there are numerous articles that analyze the PRC approach to Internet surveillance, it would appear that none of them provide the actual language of the PRC laws that directly relate to Internet surveillance, let alone analyze the actual PRC laws, as this article does. Moreover, this article appears to be the first to mention the predictability issues associated with Internet surveillance laws. These two features of this article in and of themselves make this a valuable contribution to the literature, with the other features — including the comparative elements of this analysis — only adding to this article’s overwhelming value. Again, this article’s thesis is that the PRC’s Internet surveillance laws, while not ideal, are better than the U.S. laws with regard to predictability inasmuch as there is no reasonable expectation of privacy in the PRC. Admittedly, the United States might be catching up in the sense that U.S. citizens might not have a reasonable expectation of privacy anymore after the Snowden revelations, notwithstanding the Fourth Amendment. To be clear, this certainly is not something to be proud of in either jurisdiction... Click here to download the full article.

Anne Cheung on the Autocomplete Defamation Cases Against Google

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

Anne Cheung

in Andras Koltay (ed.) Comparative Perspectives on the Fundamental Freedom of Expression (Budapest: Wolters Kluwer, 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.  Click here to download the full chapter.

New Issue: SSRN Legal Studies Research Paper Series (HKU)

Vol. 5, No. 10: 7 December 2015

Table of Contents

1. Beyond Gatekeeping: The Normative Responsibility of Internet Intermediaries 

Marcelo Thompson, The University of Hong Kong - Faculty of Law 

2. Google Book Search, Transformative Use, and Commercial Intermediation: An Economic Perspective 

Kelvin H. Kwok, The University of Hong Kong - Faculty of Law 

3. The Evolution of Fintech: A New Post-Crisis Paradigm? 

Douglas W. Arner, University of Hong Kong - Faculty of Law 

Janos Nathan Barberis, The University of Hong Kong - Faculty of Law 

Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law 

4. Building Judicial Integrity in China 

Fu Hualing, The University of Hong Kong - Faculty of Law

Clement Chen Interviewed on China's Draft Cyber Security Law (Tech in Asia)

"China to codify internet control measures"
Jennifer Zhang
Tech in Asia
12 July 2015

China has been eager to claim its “internet sovereignty” since the 18th party congress, with internet control naturally topping the central leadership’s agenda. The recently released cyber security law draft, while aiming to codify the previously scattered internet regulation policies and solidify Cyberspace Administration’s status as the leading internet governing body, has demonstrated the country’s determination to take a more effective and concentrated approach to make the cyberspace a “safe and harmonious” territory...

     The draft also duplicates the stringent requirements on the real identity registration system of the NPCSC’s 2012 Decision on Strengthening Network Information Protection, according to Clement Chen, a post-doctoral fellow at the Faculty of Law, HKU. Article 20 of the draft prescribes that network operators shall require users to provide real identity information when signing service agreements to ensure the traceability of the internet content. Where users do not provide real identify information, network operators must not provide them with relevant services. Chen adds that while the draft imposes obligations to protect privacy on the ISPs, it does not impose equally comprehensive obligations on public authorities in relation to their collection and processing of personal information within the broad scope of ‘internet security maintenance’...  Click here to read the full article.

New Issue: SSRN Legal Studies Research Paper Series (HKU)

Vol. 5, No. 5: 24 June 2015

Table of Contents

1. Legal Pluralism, Institutionalism, and Judicial Recognition of Hong Kong-China Cross-Border Insolvency Judgments
Emily Lee, The University of Hong Kong - Faculty of Law

2. The Evolution of Relational Property Rights: A Case of Chinese Rural Land Reform
Shitong Qiao, University of Hong Kong Faculty of Law
Frank K. Upham, New York University School of Law

3. What Determines M&A Legal and Financial Advisors’ Competitiveness in an International Financial Centre: Using China's Going Out Policy as a Natural Experiment
Bryane Michael, University of Hong Kong Faculty of Law, University of Oxford
Dariusz Wojcik, University of Oxford, St. Peter's College
Douglas W. Arner, University of Hong Kong - Faculty of Law
Chen Lin, The University of Hong Kong - Faculty of Business and Economics
Wilson H.S. Tong, Hong Kong Polytechnic University - School of Accounting and Finance, Hong Kong University of Science & Technology (HKUST) - Department of Finance
Simon X. Zhao, The University of Hong Kong - Department of Geography

4. Defaming by Suggestion: Searching for Search Engine Liability in the Autocomplete Era
Anne S. Y. Cheung, The University of Hong Kong - Faculty of Law

5. Trade Finance in East Asia: Potential Responses to the Shortfall
Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law
Douglas W. Arner, University of Hong Kong - Faculty of Law
Rebecca Stanley, University of New South Wales (UNSW) - Faculty of Law