Is Google liable for defamation for not removing defamatory information in search results? Is Google liable for defamation as a secondary publisher by including hyperlinks to a website that contains defamatory materials when the hyperlink is included in search results? Finally, is Google liable for defamation when its Autocomplete and Related Search features produce suggested search inquires that are defamatory? According to the recent decision of an Australian Court in Duffy v Google Inc., [2015] SASC 170 (27 October 2015), yes to all, at least once Google has received notice of these activities and fails to stop them within a reasonable period of time.
The case contains a treasure trove of Commonwealth law summarizing decisions on the liability of Internet intermediaries and service providers for defamation committed or facilitated by their online activities. Sadly, the decision, and the cases against Google relied on in the decision, illustrate the plight of individuals who sought and were denied the help asked for from Google to stop publishing information that damaged their reputations. Invariably, after being forced to litigate against one of the world’s wealthiest companies, their claims were vindicated by the courts which made findings that Google has a corporate responsibility to act, at least once it is put on notice that its search results are alleged to be defamatory. See, for example, Trkulja v Google Inc LLC (No 5) [2012] VSC 533 (summarized here), Tamiz v Google Inc [2013] EWCA Civ 68 (summarized here), Dr Yeung Sau Shing Albert v Google Inc [2014] HKCFI 1404, A v Google New Zealand Ltd [2012] NZHC 2352, Rana v Google Australia Pty Ltd [2013] FCA 60, Bleyer v Google Inc LLC [2014] NSWSC 897.
The Duffy v Google case arose from six articles that were published on the Ripoff Report website about the plaintiff, Dr. Duffy, and later published on other sites ostensibly derived from the Ripoff Report articles. The plaintiff notified Google and asked that the offending text and hyperlinks be removed from its search indexes. After many attempts to get Google to change its search results it removed the material relating to the six Ripoff Report webpages but not the other webpages. The plaintiff also notified Google that searches for her name on its websites resulted in the display by it’s Autocomplete utility of defamatory alternative search term “Janice Duffy Psychic Stalker” and requested its removal. Google did not comply.
The first issue in the case was whether the paragraphs (title, snippet and URL) displayed by the Google websites to users in response to searches for Dr Duffy’s name were published by Google. An example of a search alleged to be defamatory is the following:
R1 Ripoff Report Janice Duffy – Psychic Stalker Psychics Beware Of… Dr Janice Duffy is truly an embarrassment to her profession as a Senior Researcher in Adelaide Australia #2 Consumer Comment. Respond to this report… www.ripoffreport.com/…Janice-Duffy…/janice-duffy-psychic-stalker-98d93.htm Cached
Google argued it could not be liable for defamatory information published in search results as the information was produced without human intervention through the use of its computer systems and processes. It contended that for it to be liable it would have to authorize or accept responsibility for the publication. The court rejected this defense finding that Google played a critical role in publishing the defamatory content, once it became aware of what its systems were disseminating. Google could not be likened to a passive telecommunications carrier given the active role its systems played in generating and transmitting the offending information to the public.
I reject Google’s contention that a defendant can only ever be a publisher if the defendant authorises or accepts responsibility for the publication… Google was the sole operator and controller of the Google website. The paragraphs resided on Google’s website. The paragraphs were communicated by Google to the user conducting a search. Google played a critical role in communicating the paragraphs to the user. The physical element of publication is present. Google did not play the passive role of a mere conduit such as an internet service provider who merely provides access to the internet or a telecommunications carrier who merely provides access to the telephone network. Google played an active role in generating the paragraphs and communicating them to the user. The mere fact that the words are programmed to be generated because they appear on third party webpages makes no difference to the physical element. It makes no difference to the physical element whether a person directly composes the words in question or programs a machine which does so as a result of the program. I agree with the analysis of Beach J in Trkulja v Google Inc LLC (No 5)[140] in this respect… The mere fact that the paragraphs were generated automatically by Google’s software programs does not prevent