In an important judgment handed down on 4 October 2017 in the case of Google Inc v Duffy ([2017] SASFC 130 [pdf]) the Full Court of the Supreme Court of Australia upheld the decision of Blue J ([2015] SASC 170) that Google Inc was liable for the defamatory content of the hyperlinks and paragraphs in search results on the claimant’s name (see our comment on the first instance decision).
The Court was unanimous on the publication issues but Kourakis CJ dissented on the issue as to whether Google Inc had a “qualified privilege” defence. The Full Court dismissed Dr Duffy’s cross appeal against the judge’s award of Aus$100,000 damages ([2015] SASC 206). We had a case comment on this judgment.
Background
The plaintiff, Dr Janice Duffy, had consulted a series of online psychics via a website called Kasamba. She later complained about some of them, including by posting reports and comments on a website called “Ripoff Report”. Dr Duffy also created a chat group on yahoo.com under the name “kasambavictims” and posted its internet address on the Ripoff Report website.
A number of reports and comments were subsequently posted on the Ripoff Report website naming Dr Duffy and making allegations against her (“the Ripoff Report material”). Dr Duffy then became aware that searches for her name on Google’s search engines resulted in the display of extracts from and hyperlinks to the Ripoff Report material. She notified Google of the material that she claimed was defamatory of her and requested removal of that material. Google declined the request.
Dr Duffy then brought proceedings for libel, pleading a broad range of defamatory imputations including that she stalked psychics; obsessively and persistently harassed psychics; fraudulently and/or maliciously accessed other people’s electronic emails and materials; spread lies; threatened and manipulated other people; was an embarrassment to her profession; misused her work email address for private purposes and engaged in criminal conduct.
Her claim was subsequently amended to incorporate an additional cause of action arising from the fact that searches for her name on Google resulted in the display by Google’s Autocomplete utility of the alternative search term “janice duffy psychic stalker”. Google denied publication and denied that the material displayed on or linked from its websites gave rise to the pleaded defamatory imputations. It also relied on defences of innocent dissemination, qualified privilege, justification and contextual truth.
In October 2015, Blue J ruled Google had exposed a “substantial number of people” to the defamatory claims published on the “Ripoff Report” website. He held that Google was a publisher of the material complained of. He further found that the imputations pleaded by Dr Duffy did arise from the material published and that none of the defences relied on by Google were made out.
In December 2015 Blue J ordered Google to pay Aus$100,000 to Dr Duffy in damages. Google appealed to the Full Court. The appeal was heard on 4 and 5 May 2017 and judgment was handed down on 4 October 2017.
Judgment
A number of issues arose on the appeal:
(1) Was Google the “publisher” of the snippets produced by its search engine, the “auto-complete” suggestions and the articles to which the snippets linked?
(2) Had Google justified the the imputations made?
(3) Did Google have a defence of qualified privilege?
This post concentrates on the first of these issues.
In relation to publication, Kourakis CJ held that a plaintiff in a defamation case had to prove
“1. the defendant participates in the publication to a third party of a body of work containing the defamatory material;
2. the defendant does so knowing that the work contains the defamatory material. That knowledge is presumed conclusively in the case of a primary participant but may be rebutted by a second participant who does not know and could not reasonably have know of the presence of the material” [102]
He held that the onus was on the defendant to establish that it did not know or could not reasonably have known that the publication contained the defamatory statement [103].
In the case of dissemination through the Internet the issue is whether Google’s role as facilitator through its search engine is sufficiently proximate to the display of the search results to constitute participation in the publication of their contents [135].
Kourakis CJ said that the concept of “passive medium” was apt to mislead because the nature of electronic media is that it is pre-programmed to fulfil a purpose [140].
Google submitted that an intention to publish had to be proved and that it could not have intended to publish any snippet when there are over 60 trillion constantly changing webpage and over 100 billion searches a month [153]. Kourakis CJ rejected this submission holding that
“Google participated in the publication of the paragraphs about Dr Duffy produced by its search engine because it intended its search engine to do what it programmed it to do” [155]
It was not necessary to prove that Google had knowledge of or adopted the contents of its search results [156].
Having considered a number of authorities Kourakis CJ concluded
“Google’s search results are published when a person making a search sees them on the screen … It is Google which designs the programme which authors the words of the snippet paragraph. Google’s conduct is the substantial cause of the display of the search result on the screen” [181]
As a result, Google was a participant in the publication of the snippets. However, it did not have any practical ability to review their contents before they are displayed. It did not have advance knowledge of the contents of search results. As a result, it was a secondary publisher of search results and knowledge of their defamatory contents should not be attributed to it until notice is given [184].
The fact that Google was a second publisher meant that notification of the fact of publication of the defamatory material denied it the opportunity to rely on the defence of innocent dissemination at common law.
Kourakis CJ went on to uphold the Judge’s finding that Google was liable for the republication of the Ripoff Report pages to which it provided hyperlinks. This was because Google’s facilitation of the reading of these pages was both “substantial and proximate” [187].
He also upheld the Judge’s findings on meaning and justification.
Peek and Hinton JJ agreed with Kourakis CJ’s reasoning on these issues. Kourakis CJ dissented on the availability of the statutory defence of qualified privilege under section 28 of the Defamation Act 2005 (SA). He held that the material was published by Google to persons who had a legitimate interest in having the information and that Google’s conduct was reasonable. Peek and Hinton LJJ held that the evidence did not establish the requisite interest.
Comment
This is an important decision on the common law approach to publication by search engines. It another personal victory for Dr Duffy who has pursued Google with great tenacity over a number of years. The story is told on her blog.
Although Dr Duffy’s initial aim was simply to have the search results removed she was required, by Google, to engage in large scale defamation litigation in order to achieve that aim. As Barry Sookman said, in commenting on the first instance decision the illustrates “the plight of individuals who sought and were denied the help ask for from Google to stop publishing information that damaged their reputations”.
On the crucial issue of publication the Full Court substantially confirmed the analysis of Blue J at first instance that Google is a “secondary publisher” of the snippets produced on its searches as well as of two of the underlying webpages from the time it was put on notice that its search engine was producing those results. There is a full and important analysis of the law on publication.
In relation to the hyperlinks, liability was established on the basis that the hyperlink and its surrounding text were defamatory, thus taking Google clearly beyond mere indexing.
This is another chapter in the worldwide battle between Google and those whose reputations have been damaged by material produced by the operation of its search engine. The statutory immunity which the company enjoys in the US does not extend to other jurisdictions and it is likely that the common law will continue to provide remedies to claimants in Dr Duffy’s situation.
Meanwhile, it seems inevitable that Google will seek to challenge this decision in the High Court of Australia. That Court is due to hear an appeal, in the case of Trkulja v. Google Inc which also deals with issues concerning Google’s status as a publisher in the near future (see our case comment).
Hugh Tomlinson QC is a specialist in media and information law at Matrix Chambers and an editor of Inforrm.
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