In the case of Bleyer v Google ([2014] NSWSC 897) the Supreme Court of New South Wales stayed a libel action against Google Inc based on defamatory snippets because the resources of the court and the parties that would be expended were disproportionate to the plaintiff’s interest in obtaining vindication. In the course of her judgment McCallum J held that Google was not the publisher of the results produced by its search engine.
Background
Mr Bleyer sued Google over seven publications. Two were alleged defamatory “snippets” produced on Google searches, the others were snippets together with the material made accessible by means of the hyperlink. Mr Bleyer alleged that the matters complained of conveyed imputations that he was reasonably suspected by police in California of being criminally involved in illegal drug activity; that he had committed multi-billion dollar scams; that he had stolen credit card numbers and, broadly, a series of further imputations alleging various levels of criminality including serious fraud.
The only particulars of publication were to three individuals, two in the state of Victoria and one in New South Wales.
Google applied for a stay of the action on the ground that no “real and substantial tort” was disclosed. It relied on four points
“(a) [The principle in Jameel v Dow Jones [2005] QB 946)] … is engaged and there is an obvious and substantial disproportion between the cost of the exercise and conceivable vindication;
(b) Google is not a publisher in defamation law of its search engine results web page;
(c) …the innocent dissemination defence prescribed by common law and under s 32 of the Defamation Act 2005 is positively engaged; and in any event
(d) a judgment in Mr Bleyer’s favour will, more than likely, be unenforceable in the United States.”
Judgment
Jameel in New South Wales
The first issue considered was whether there was, in New South Wales, a jurisdiction to stay proceedings on the grounds identified by the English Court of Appeal in Jameel. After considering a number of authorities the Judge concluded that
“the court has power, in an appropriate case, to stay or dismiss an action on the grounds that the resources of the court and the parties that will have to be expended to determine the claim are out of all proportion to the interest at stake. In my view, such disproportionality can properly be regarded as a species of abuse of process”. [62]
She went on to say, however, that the cases in which such a stay would be granted would be rare and the interest at stake will have to be assessed having regard to broader considerations than the sum of money involved [63]. Before considering the application of this principle to the facts of the case the Judge considered the other issues raised by Google.
Google as Publisher
The second issue which the Judge considered was whether Google is a publisher of its search engine results.
Google contended that it was not, relying on the English decisions of in Metropolitan International Schools Ltd v Designtechnica Corporation [2009] EWHC 1765 and Tamiz v Google Inc [2012] EWHC 449. In the former case Eady J had held that because Google search results involved no human input from Google it could not be characterised as a publisher of them at common law.
The claimant relied on the decision of the Victorian Supreme Court in Trkulja v Google Inc (No 5) ([2012] VSC 533) in which Beach J held that
The jury were entitled to conclude that Google Inc intended to publish the material that its automated systems produced, because that was what they were designed to do upon a search request being typed into one of Google Inc’s search products. In that sense, Google Inc is like the newsagent that sells a newspaper containing a defamatory article. While there might be no specific intention to publish defamatory material, there is a relevant intention by the newsagent to publish the newspaper for the purposes of the law of defamation. [18]
He held that Metropolitan Schools and Tamiz did not represent the common law of Australia,
McCallum J did not agree. She held that
The evidence before me establishes that there is no human input in the application of the Google search engine apart from the creation of the algorithm. I would respectfully disagree with the conclusion reached by Beach J in Trkulja that the performance of the function of the algorithm in that circumstance is capable of establishing liability as a publisher at common law. I would adopt the English line of authority to the effect that, at least prior to notification of a complaint (and on the strength of the evidence before me), Google Inc cannot be liable as a publisher of the results produced by its search engine. [83]
As a result, she concluded that it was highly unlikely that Mr Bleyer would be able to establish at trial that Google was liable for the downloads before it had received notice of his complaint.
Innocent Dissemination
The Judge held that, in respect of pre-notification publications, the overwhelming likelihood was that this defence would succeed.
Unenforceability in the United States
The Judge noted that, since 1964 when the Supreme Court of the United States decided New York Times v Sullivan 376 US 254 (1964), there has not been a single reported State or Federal decision in which a foreign defamation judgment has been recognised and enforced in the United States [89].
However, she went on to hold
“I do not think a defamation action must inevitably be characterised as being futile on the grounds that any judgment obtained will be unenforceable against the defendant. An aspect of the remedy afforded by the tort of defamation is that it vindicates a person’s reputation by enabling him or her to “nail the lie”” [93].
Judge’s Conclusion
In conclusion the Judge noted that the case raised complex issues which were estimated to require a 5 day trial. She noted that Google’s estimated costs to the conclusion of the trial were Aus$370,000. Although the plaintiff had a proper interest in vindicating the alleged harm to his reputation, this was only in the eyes of one person. As a result, she said
“In all the circumstances, … the resources of the court and the parties that will be expended to determine the claim are out of all proportion to that interest” [97].
A permanent stay of the proceedings was, therefore, ordered.
Comment
This decision is, from an English perspective, plainly right. It would have been struck out as an abuse under the Jameel principle and would now fail, on any view, to surmount the “serious harm” hurdle in section 1 of the Defamation Act 2013. Two interesting points arise out of the judgment.
First, there is the cautious recognition in New South Wales of what amounts to the English “Jameel” jurisdiction to refuse to allow a claim to proceed where “the game is not worth the candle”. The Australian courts have been slow to adopt the robust approach to “trivial” libels of the English courts and defendants will welcome this development.
The second point is of more general interest. There has been a considerable debate in the common law world on the question as to whether Google is a “publisher” at common law of search results. In England the position is clear: Google is not a publisher. The decision in Trkulja v Google Inc (No 5) appeared to suggest that the Australian common law had developed in a different direction but McCallum J was not persuaded and supported the English approach.
She did not, however, have the benefit of the recent decision in Yeung v Google ([2014] HKCFI 1404) in which the reasoning in Trkulja was adopted – and found to be consistent with the Hong Kong Court of Final Appeal decision in Oriental Press Group v Fevaworks Solutions [2013] HKCFA 47 (a case not cited to McCallum J). This is a complex issue which awaits a definitive decision by the common law courts.
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