Google Australia Pty Ltd – it looks like Google, smells like Google and it very much tries to act like it is not Google. For several years there have been several people who have all tried to sue Google Australia or Google New Zealand or Google UK, perhaps trying to get a local defendant when it is Google Incin America that produces the search results which they complain about.
Consistently, courts have found that those plaintiffs have over-reached. Consistently, those claims have been struck out on a summary basis.
Melbourne lawyer George Defteros believed his claim was different. Thankfully, he also sued Google Inc for the publication of search results for his name, and not just Google Australia, since the latter claim was, as His Honour Justice Dixon concluded – hopeless ( VSC 158).
The plaintiff sued the two Google entities as a result of the publication of search results on the Google website. These included a hyperlink to an article that was written in 2004 entitled “Underworld loses valuable friend at court”, that referred to him.
After he sued, Google Australia wrote to the plaintiff and stated that the case against the Australian entity was hopeless. It asked that the plaintiff agree to discontinue that claim and it would agree that there be no orders as to costs. In hindsight, a good offer. The plaintiff rejected it and Google Australia applied for summary judgment.
The plaintiff alleged there were a number of different arguments, which made his case different from every other case before it in Australia and around the world. He argued that Google Australia participated in the business of Google USA and therefore was a publisher of search results. Creative. The evidence, at its highest, showed that Google Australia provided sales and marketing support to Google USA, it provided advertising services, it provided research and it received payment from Google USA for those services.
However, this had nothing to do with the search results on which the plaintiff sued. His Honour concluded that this was not participation in the publication at all. The contention that Google Australia was a publisher as a result of those matters was “fanciful”. His Honour noted that there would be many aspects of the business of a publisher that were unrelated to the actions of communication or publication. In the case of Google, there were presumably thousands of companies participating in its business in advertising, marketing, assistance, revenue collection and so on. None of those would be publishers, such an outcome would be absurd.
As an example, His Honour noted that if the plaintiff was right, then if a vendor were to sell a car in a newspaper, and in an unrelated article in that edition, a person was defamed, the car vendor, like the newspaper employee who sold the advertising space, would have arguably participated in the business and would arguably be publishers. Absurd.
So the case against Google Australia was struck out, with an order that the plaintiff pay its costs on an indemnity basis. It may have only been a battle in a broader war, but having to pay for Google’s QC and its other lawyers on this application on an indemnity basis ( VSC 189) …. not a good start for this plaintiff at all.
This post originally appeared on the Defamation Watch blog and is reproduced with permission and thanks