"BigTech" in the Financial Sector, In Conversation with Douglas Arner (SEACEN Podcast Season 3 Episode 1)

SEACEN Podcast Season 3 Episode 1 - In Conversation with Prof. Douglas Arner

14 January 2020

Summary: “BigTech” in the Financial Sector: More Choice for the Consumer, More Challenges for the Regulator? SEACEN financial sector supervision experts Mark McKenzie and Glenn Tasky talk with prolific writer and educator Professor Douglas Arner, Kerry Holdings Professor in Law and Co-Founder, Asian Institute of International Financial Law, Faculty of Law, University of Hong Kong, about the entry of BigTech – companies such as Facebook, Apple, Google, Microsoft, Amazon, Alibaba, and Tencent – into the provision of financial services such as lending, payments, and even exotic cross-border instruments such as stablecoins. What are the benefits these big players bring, and what are the risks of allowing firms that are already big in other markets potentially dominate banking as well?

Haochen Sun on Copyright Law as an Engine of Public Interest Protection (NW J Tech & IP)

"Copyright Law as an Engine of Public Interest Protection"

Haochen Sun

Northwestern Journal of Technology & Intellectual Property
2018, vol 16, p 123
Abstract: Courts around the world have been confronted with bewilderingly complex challenges in protecting the public interest through copyright law. This article proposes a public interest principle that would guide courts to settle fair use cases with better-informed decisions. I argue that the proposed principle would legally upgrade fair use from serving as an engine of free expression to serving as an engine of public interest protection.

     Based on comparative study of the conflicting rulings handed down by the U.S. and Chinese courts on Google Library, the article first considers the necessity of adopting the public interest principle in guiding the judicial settlement of fair use cases substantively and procedurally. The article then canvasses the two substantive legal standards to be embodied in the public interest principle. First, the principle would create a public interest use standard for courts to utilize in weighing the first fair use factor without applying the dichotomy of transformative and non-transformative use. At the same time, it would also require courts to employ the significant market harm standard when considering the fourth fair use factor. Second, the public interest principle would also modify the procedural rules concerning the assignment of burden of proof in fair use cases. It would place only the burden of proving a public interest use under the first factor on the user of a work who is the defendant in the judicial proceedings at hand.

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.