Google found to be a ‘publisher’ and liable for defamation

Google found to be a ‘publisher’ and liable for defamationBy Ted Guthrie, Johnston Withers, Lawyers, Adelaide.

Earlier this year we published an article discussing the serious reputational harm that can be suffered by people defamed on the internet, particularly by bloggers and third party publishers.

Since then, MSI Global Alliance firm – Johnston Withers, has been involved in two actions before the South Australian Supreme Court in which the Court has been prepared to make findings and orders protecting defamed plaintiffs.

Google found to be a ‘publisher’ and liable for defamation

In the first action, MSI Global Alliance client, Dr Janice Duffy, sued Google for defamation. Dr Duffy was gravely defamed when a number of reports were posted concerning her by anonymous bloggers on a website based in the United States called ‘Ripoff Report’. On searching for Dr Duffy’s name (or variants of it) on Google’s search engine snippets from the ‘Ripoff Report’ reports were produced by Google, displaying the defamatory matter and also providing access (via hyperlinks) to the reports. Dr Duffy notified Google of the defamatory matter on its search engines, but it failed to remove it and therefore, she issued Court proceedings (electing to sue Google as bloggers were anonymous).

In October, the Supreme Court delivered judgment. The judge undertook an extensive analysis of the cases going right back to Victorian England, when the law had to deal with defamation in the context of mass printing. In these cases, the English Courts held that distributors of defamatory material, such as newsvendors and circulating libraries, were not liable when distributing defamatory matter of which they were not aware – but once a distributor of defamatory matter became aware of it, they lost any defence of being an innocent disseminator and were liable as the publisher of defamation.

Google contended that the law took a ‘wrong turn’ back in the late 19th century; and that mere disseminators of material, such as newsvendors or libraries (and Google), are not publishers at all. Google also contended that it could not be a publisher, as it does not intend to publish anything but instead, its search engine results are entirely automated.

However, the Court did not agree. It found that Google did not play a passive role of a mere conduit. Instead, the Court found Google was a publisher, and intended to publish, defamatory material on its search engines, once Google was notified of the existence of defamatory matter generated by its own software but failed to remove it, within a reasonable period of time.

To our knowledge this is the first time a Commonwealth judge has expressly found Google to be liable as a publisher for defamation.

Although it may be novel for Google to have been found liable, there was nothing novel in the application of well-settled (and centuries old) principles of defamation law. There will be no doubt cries that this case will result in censorship. However, there is no reason why Google (or anyone else operating on the internet) shouldn’t be required to assess complaints about alleged defamatory matter, and remove it if necessary – in the same way that newsvendors, libraries and the like have had to do for over 100 years.

Reddit required to take down defamatory material

The second action in which MSI Global Alliance firm – Johnston Withers was involved related to a business, and its director, being defamed very seriously by an anonymous blogger on the popular blogging website, reddit Inc. The reddit Inc posts caused our clients very serious reputational harm, but as the author was unknown, no action could be taken against them. Our clients therefore promptly applied to the Supreme Court for an injunction order, requiring reddit Inc to remove the defamatory blogs. Although Courts have historically been reluctant to order injunctions in defamation actions, the Court in this instance did order the injunction. And once the injunction order was served on reddit Inc in the United States, under the appropriate international treaty regarding foreign service, the defamatory blogs were removed.

People defamed on-line are no longer helpless

The important consideration to be taken away from these actions is people defamed on the internet, by anonymous parties, are no longer helpless. The Courts do recognise that very serious harm can be suffered by people defamed on the internet and will be prepared to provide appropriate relief to protect against that harm.

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