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In Hong Kong, online auctions and market places providers are well established. On these platforms, the sale of fake items and other forms of intellectual property infringements are an all too common occurrence despite measures in place to curb them. Intermediary online auction sites and market place providers are often found liable for the activities of third parties and legislation was adopted in many jurisdictions to carve out ‘safe harbour’ provisions protecting intermediaries. In Hong Kong no such general shield exists and intermediaries are protected on a piecemeal basis. These intermediaries may often find themselves attracting civil liabilities (e.g. in the areas of defamation and copyright) even though they may not have sufficient knowledge about the activity in question. The current framework in place in Hong Kong to control liability for defamation and copyright infringement unhelpful regarding the liability of online auction intermediaries and more comprehensive protection is necessary. This article highlights the inadequacies of existing laws in Hong Kong and compares with regimes in other jurisdictions. It analyses the positions in the United States, China and the European Union and concludes that the EU approach of offering a uniform test for different liabilities and different intermediaries offers the best starting point for Hong Kong.

Mind the Gap: Modelling the Liability of Online Auction Intermediaries and Market Places in Hong Kong on the EU Regime