July 17, 2016

Shooting the Messanger

Article published in NZ Lawyer (issue 8.02)

The classic approach when a person is defamed is to sue the statement maker. However, this is not always practical when it comes to publication on the internet: that individual may be unidentifiable, in a different jurisdiction, or the type of person who will relish litigation and use the public forum of the court to continue their attack. Most potential plaintiffs merely want the statement to go away, but that can be difficult or even impossible to achieve in many cases. The test for injunctive relief in defamation proceedings is particularly onerous, and even if an injunction is granted and the material is taken down by the statement maker, it is unlikely to disappear from the internet completely.

Increasingly, potential plaintiffs are looking to sue not the statement maker but third party publishers – such as internet search engines – to force them to stop publishing defamatory pages in search requests. Removing defamatory pages from search results does not remove that material from the internet altogether, but it does make the defamatory statement much harder to find – and for many plaintiffs, that will be enough. Whether such a remedy is achievable in defamation, however, has been far from settled.

Breakdown of the law

The question of search engine liability in defamation has only been considered once in New Zealand, in the 2012 decision in A v Google NZ Ltd. A had asked Google NZ on numerous occasions to block access to foreign websites containing allegedly defamatory material – requests that were referred to Google Inc but only partially actioned. A applied for summary judgment on the basis that the material was clearly defamatory and Google NZ was aware that it was available in its search results.

The court found that Google NZ was not the correct defendant because it did not have sufficient control over the publication of the allegedly defamatory material. It was not in a position to prevent continued publication, nor to take the material down, and “merely forwarding a request for removal to [Google Inc]” was not sufficient to make it a publisher. More generally, however, the Court did not rule out the possibility that a search engine could be a publisher where there is some “stamp of human intervention” on the publication of the search results including the defamatory material.

The Court has taken a similar approach with regard to social media: in the 2014 decision of Murray v Wishart, the Court of Appeal considered whether the host of a Facebook group could be liable for defamatory statements posted by other group members. This type of case is distinct from those involving Google, because the host has the ability to delete the offending material from the page permanently, rather than just making it more difficult to access. The court concluded that a host is only a publisher when they have actual knowledge of the defamatory material published on the group page “and fail to remove it within a reasonable time in circumstances that give rise to an inference that they are taking responsibility for it.” It rejected the High Court’s suggestion of an ‘ought to know’ test on policy grounds.

Duffy v Google Inc

While the law remains underdeveloped in New Zealand, though, recent decisions of Australian Supreme Courts have shed some light on a possible way forward. The Supreme Court of South Australia decision in Duffy v Google Inc involved a plaintiff, Duffy, who had entered into extended correspondence with several online psychics over the course of more than two years, seeking predictions about her relationship. In 2009, she became aware of a number of articles online which referred to her as a “psychic stalker” and made a range of other defamatory comments. When her name was searched on Google, the results would include extracts from and hyperlinks to those articles. She subsequently discovered that when users searched her name, Google’s autocomplete tool would autocomplete it to “Janice Duffy psychic stalker.” She notified Google Inc of these issues on numerous occasions, but it declined to take action on the basis that there was nothing it could do to remove the content without the cooperation of the sites’ webmasters. After Duffy issued proceedings against both Google Inc and Google Australia, Google Inc did remove some of the material, but only from Google Australia search results.

What makes the Duffy decision unusual is the fact that Duffy was successful in her claim. The Court was satisfied that the material complained of contained defamatory imputations and all of Google Inc’s defences failed. Duffy was awarded $100,000 damages and indemnity costs.

Who is the defendant?

In an earlier application for injunctive relief, Duffy named Google Australia and Google Inc as parties. The orders sought against Google Australia were declined based on the lack of evidence that it exercised any control over – or was able to remove material from – search results. This confirms that issuing proceedings against the local subsidiary is likely to lead to a successful application for summary judgment on the subsidiary’s part. The parent, Google Inc, is the correct defendant.

Who is a publisher?

In Duffy, as in A, Google Inc argued that it was not a publisher of the defamatory material (which consisted of the paragraphs displayed in the search results, the content of the external website itself, and autocomplete/related search terms). Equally, as in A, the court considered that this question should be determined by reference to the extent of Google Inc’s participation in each publication.

It found that the paragraphs were located on the Google website, of which Google Inc was the sole operator and controller, and that Google Inc played a “critical role” in generating and communicating them to the user. After notification by Duffy, their continued existence was “the direct result of human action or inaction rather than merely the result of machine operation.” The material published on the external websites was also published by Google Inc because of the role which Google Inc played in their communication to users. The snippet published in the search results provided a summary of the material on the website, and the results were programmed to redirect the user to the website when they click on the hyperlink. However, the Court commented that posting the URL on its own, either with or without creating a hyperlink, would not make Google Inc a publisher of the material on that site. In each case, that failure to remove the defamatory material after notification meant that from that point on, Google Inc was deemed to have intended to publish it to the user.

The overall result was that Google Inc would only be deemed a publisher after notification by Duffy and after a reasonable time had elapsed for it to remove the relevant material. Based on the time it took for Google Inc to respond to Duffy’s initial requests (one month), the court concluded that one month amounted to a reasonable time. Google Inc therefore became a publisher of the defamatory material one month after Duffy alerted it to its existence.

Of course, for Google Inc to be a publisher, there must also be a person to whom the material was published. The Court found that during the relevant period there had been at least 300 searches monthly for “Janice Duffy” and “Dr Janice Duffy.” The defamatory paragraphs were published in these search results, and a significant number of users would have noticed them, read them, and clicked on the hyperlink for elaboration. Google Inc had therefore published that material to a substantial number of users.

The court concluded that the strict actual knowledge requirement imposed by the New Zealand Court of Appeal in Wishart was not available in Australia due to existing precedent, which stated that a person could also be a publisher if they reasonably ought to have known that the material was defamatory. However, had Duffy been heard in New Zealand, the outcome would have been the same, because in this case Google Inc did have actual knowledge of the defamatory material due to Duffy putting it on notice.

Innocent dissemination

The defence of innocent dissemination exists in both Australia and New Zealand, although the Australian version is narrower, only capturing publication that the defendant, as a “subordinate distributor,” “neither knew, nor ought reasonably to have known” was defamatory. In New Zealand, only the first limb exists.

Wishart canvassed international case law on innocent dissemination and concluded that the facts of that case were most analogous to those in Byrne v Dean, a UK decision concerning an anonymous notice posted on the wall of a golf club which the owners of the club did not remove after being alerted to it. That failure gave rise to an inference that the owners had assumed responsibility for its continued presence.

In Duffy, the Court accepted that Google Inc was a subordinate distributor. However, Duffy’s notification to Google Inc meant that it knew of the defamatory material, and that knowledge precluded reliance on the defence.

Innocent dissemination in New Zealand, under section 21 of the Defamation Act 1992, has not been updated to reflect developing technology – unlike the Defamation Act 2013 (UK), which includes a section governing liability for “operators of websites” – and it is possible that a search engine would not fall within the existing definitions of “processors or distributors” to which the section applies. This point was noted in Wishart, and is likely to become increasingly important if litigation of this nature becomes more common.

Whether this decision will be adopted in other jurisdictions and any long-term impact such a trend may have on the way that search engines provide their services to the public remains to be seen – but Duffy has paved the way for liability in this sphere, and hers is unlikely to be an isolated case. Equivalent proceedings could well arise in New Zealand, except now that potential plaintiff has a blueprint on how to sue Google – and succeed.

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