Google has for the most part successfully fought off attempts to make it liable for third party publications, or search results. But, given the company’s enormous power and influence over the online world, it is unsurprising that claims against it and its subsidiaries continue to be brought. In Rana v Google Australia Pty Ltd ( FCA 60), an Australian court considered whether such a claim could be made, or served on the American parent company.
Mr Rana complained about websites hosted by Google which contained defamatory material apparently authored by Darda and Nina Gregurev. He also complained about search results which appeared on Google.com and Google.au.
Among other things, material on the websites accused him of being a stalker, an “intrusive obnoxious paranoid creature”, someone who suffered from a number of physical and personality problems, and a continual bankrupt who sends money to women associated with the Russian mafia. They made other accusations of varying seriousness. One of the sites set out previous engagement between Mr Rana and the Gregurevs, including his attempts to obtain restraining orders against them. Even the extensive material referred to by the Judge was described as being by no means a complete summary of everything on the websites.
Mr Rana brought a claim for damages against the Gregurevs and Google, for the publication of defamatory material, and for discrimination on the basis of race and/ or disability. The applications before the court included one by Google Australia for an order dismissing Mr Rana’s claim as it had no reasonable prospects of success, one by the Gregurevs for summary judgment, and one by Mr Rana for leave for service out of the jurisdiction on Google Inc.
Google Australia’s application for summary judgment was brought on the basis that that there was no reasonable prospect of Mr Rana establishing that it was the publisher of any of the websites. In support of his submission that Google Australia was responsible for carrying on or participating in the business of Google Inc, he relied on the case of Trkulja v Google Inc (No 2) ( VSC 490). In Trkulja No 2 Beach J ordered better particularisation of what was otherwise an untenable claim that Google Australia owned or operated the Google site.
Google Australia submitted an affidavit from its solicitor which effectively denied any control by it over either the local Google domains or the international ones. She also stated that Google Inc owned and operated the Google search interface. Mr Rana for his part provided no evidence to support his assertions that Google Australia was the owner of the relevant search engines.
The Judge relied on the reasoning in A v Google New Zealand Ltd ( NZHC 2352) and Tamiz v Google Inc and Google UK Ltd ( EWHC 449) concerning the relationship between the national and international manifestations of Google for his holding that there was no reasonable prospect of Mr Rana proving that Google Australia owned the domains in question, or that it controlled the conduct of Google Inc.
The application for service overseas was based both in discrimination and defamation. The first cause of action had no reasonable prospect of success. The second required consideration of whether Google Inc could be considered a publisher, whether it had a defence of innocent dissemination, and of whether the website material was defamatory.
In relation to whether or not Google could be considered a publisher, the Judge said that the law in this regard was not settled. He cited Byrne v Deane ( 1 KB 818) as authority for the proposition that a failure to remove material can lead to responsibility for publication, and referred to the contrasting accounts of the significance of notification set out in Tamiz and Davison v Habeeb and Others ( EWHC 3031 (QB)). He also referred to Beach J’s decision in Trkulja v Google Inc LLC (No 5) ( VSC 533) in which it was held that a jury was entitled to conclude that Google Inc intended to publish the material that its automated system produced, as search engines, although automated, operate precisely as intended by those who own them. Given the uncertainty in this area it would not have been appropriate to refuse to give leave serve proceedings against Google Inc and on that basis dismiss Mr Rana’s claim.
The Judge then moved on to the “innocent dissemination” defence found at Section 30 of the Defamation Act 2005 (SA). He said that at common law the defence had been of no application to someone who authorises the publication, and is not available after notice is given. He referred again to Trkulja No 5 where Beach J had held that the defence was not open to Google as its search engine operated precisely as the company intended. He said that it was not clear in the present case when Google Inc became aware of the material.
In relation to the defamatory meaning of the allegations (for details of which, see above), the Judge referred to a series of authorities on the way in which the form of publication can affect the interpretation given. The general principle was set out in Amalgamated Television Services Pty Ltd v Marsden ((1998) 43 NSWLR 158), and in Smith v ADVFN Plc ( EWHC 1797 (QB)), in which Eady J examined the nature of postings on online bulletin boards, referring to them as “more akin to slanders… than to the usual, more permanent kind of communications found in libel actions” and where he referred to some of the posts in question as “mere vulgar abuse”.
There is also a defence of triviality found at Section 31 of the Defamation Act 2005 (SA), available in situations where the circumstances of publication are such “that the plaintiff was unlikely to sustain any harm”. The Judge held that “arguably, a blog might be considered circumstances in which the content shared would not be viewed seriously”. He cited Prefumo v Bradley ( WASC 251) in which social media and blogs were described as enabling instantaneous communication, a quality which affects what is regarded as defamatory, and the potential for harm. The Judge doubted whether Mr Rana had a prima facie case in defamation, although it was arguable that Google Inc was liable for the allegedly defamatory material.
There was no leave for service overseas due to the unsatisfactory form of the application and the pleadings, and the requirement for the Claimant to pay security for costs. Leave was given to file and serve amended documents pending a further application for permission.
The first point of interest here is that Google seem to have succeeded in maintaining the careful separation between national and international manifestations of the same company. This conveniently opaque relationship is hardly unusual in the structure of global businesses, particularly in relation to how they pay their taxes, but it does seem to consistently make life difficult for claimants in this area of the law. Litigants in person are at a particular disadvantage in their efforts to untangle a complex legal and factual web.
The second is that this decision surveys the law surrounding the liability at common law of Google for search results (the question of liability for the Google-hosted pages themselves which generated them does not seem to have been considered). The judgment demonstrates how things have moved on from the decision of Eady J in Metropolitan International Schools which was to the effect that the company could not be liable for them. Notification was not at issue there, and, following Davison and now the Court of Appeal’s decision in Tamiz, it is clear that this may well be a significant factor in liability. The decision also highlights how, in Australia at least, the extent to which search results can truly be said to be “automated” has been called into question following Trkulja No 5. This argument, which is of wider relevance in an online world increasingly dominated by sophisticated but ultimately man-made computer algorithms, remains untested in England and Wales.
The third and final notable aspect of the judgment is that arguments about the extent to which the words in question were in fact defamatory, given their internet context, appear to have found favour here. This is surprising when one considers the nature of the allegations. Although the particular facts found in Smith v ADVFN, in which the words complained of were on bulletin boards, might support a less stringent approach to the question of defamatory meaning, it seems doubtful that such an approach should be said to apply broadly to the internet. The application of a Thornton/ Defamation Bill Section One type seriousness test (in this instance, a “triviality” threshold) in a more stringent way to online publications similarly seems a questionable step to take. The idea that online publications are somehow less serious than their equivalents in print may ultimately do neither claimants nor defendants any favours.
Gervase de Wilde is a pupil barrister at 5RB, and a former journalist at the Daily Telegraph