Google Inc and Duffy [2017] SASCFC 130 (4 October 2017)

Video Overview by Natalia Weir of Duffy v Google [2017] SASCFC 130

Duffy alleged defamation against each of Google’s USA and Australian entities in respect to material appearing on websites owned by the USA (i.e. parent company) Google entity. Searches of her name produced URL links to the websites and snippets, containing allegedly defamatory material, from those websites. Dr Janice Duffy has paid for and received psychic readings over the internet and her predictions proved to be false. Dr Duffy then engaged in an online conflict with the psychics, posting unfavourable remarks on a consumer website called Ripoff Report. Defamatory paragraphs about her were then posted, calling her a ‘psychic stalker’ and referring to her conflict with psychics on Ripoff Report. When Google’s search engine was used to search Dr Duffy’s name the autocomplete function produced an alternate search term ‘Janice Duffy Psychic Stalker’. Furthermore, the search engine reproduced content from, and hyperlinked to, the Ripoff Report material. The court subsequently found these allegations to be defamatory.

Both the USA and Australian Google entities were requested by Duffy to remove the URL links and associated snippets. As neither entity acceded to the numerous requests, Duffy applied for interlocutory relief for the removal of the URL links and associated snippets.

The relief sought was initially not granted against either of the defendants. With respect to Google Australia, this was because there was no evidence it had the ability to remove the URL links and snippets from the Google Search index. Instead, the evidence indicated that Google Inc – not Google Australia – exercised control over the Google Search (See video overview by Jack Howe of Duffy v Google [2011] SADC 178).

In 2017, the Full Court of the South Australian Supreme Court held that Google Inc was liable for publication of defamatory content through search result snippets and by hyperlinking to defamatory articles hosted on other websites. The Court found that the “search results amounted to a publication because they facilitated the reading of the defamatory material in a substantial and proximate way, which drew attention to the defamatory remarks and provided instantaneous access to them through a hyperlink.” If users were required to copy a link into their browser, it is likely Google may not have been found liable.

Google sought to rely on several defences, most notably statutory qualified privilege and innocent dissemination. These were rejected by the Court of Appeal. The innocent dissemination defence was unsuccessful because Google were aware of the defamatory material. Statutory Qualified Privilege was not made out as Google was unable to prove that all persons googling Dr Duffy’s name were concerned with her dispute with the psychics.

Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766)

Video overview by Brenton Poynting: Voller v Nationwide News

The plaintiff was Dylan Voller, a former youth detainee who was mistreated in detention. The defendants were three media companies - Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd, and Australian News Channel Pty Ltd. Mr. Voller commenced defamation proceedings against the defendants over allegedly defamatory comments written by members of the public in reply to news articles posted on their respective Facebook pages. The issues to be considered were first, whether the media defendants should be considered to be “publishers” (the first element to make out in a defamation claim) of Facebook comments made by third parties. Secondly, whether the defendants were the primary or secondary publishers of third-party comments.

The Supreme Court of New South Wales ultimately held that the defendants were publishers of the third-party Facebook comments. Furthermore, the Court found that the defendants would be liable as primary publishers. Justice Rothman found that the compiler of a comment does not publish it as a result of her or his authorship. Rather, it is the publisher of a comment in a comprehensible or legible form that publishes the comment. The Court held that the criteria to determine whether a publisher is a “primary publisher” are that, before publication, the publisher knows or can easily acquire knowledge of the content of the article being published, and secondly, has editorial control involving the ability and opportunity to prevent publication of such content. The Court deemed that the defendants satisfied both elements. Consequently, the defence of innocent dissemination was unavailable.

Clarke v Nationwide News Pty Ltd (t/as The Sunday Times) (2012) 289 ALR 345; [2012] FCA 307

Video Overview by Steven McMahon on Clarke v Nationwide News

A single justice sitting as the Federal Court was asked to decide whether the newspaper company contravened s 18C of the Racial Discrimination Act 1975 (Cth) when a reader published racially-fuelled comments on an article published about the death of several Aboriginal boys. The comments were moderated by the newspaper prior to publication. This was an application for damages, which were awarded in the sum of $12,000.

The court rejected the newspaper’s argument that it merely moderated the comments and wasn’t in contravention of the Act:

… where the evidence is that a respondent actively solicits and moderates contributions from readers before publishing them, and reserves the right not to publish or modify them, the potential for a finding of contravention of s 18C is real. If the respondent publishes a comment which itself offends s 18C, where the respondent has “moderated” the comment through a vetting process, for example, in order not to offend the general law, then the offence will be given as much by the respondent in publishing the offensive comment as by the original author in writing it. In such circumstances, it will be no defence for the respondent media outlet to say, “But we only published what the reader sent us”. (see para [110])

The control over publication on the website, coupled with the knowledge of the publication’s contents, therefore sufficed for the newspaper to be considered responsible over the publication. Barker J distinguished this case from cases where no such moderating was undertaken, and cases where the existence of the comment was unknown by the media company. Implicit in his Honour’s reasons is this: since the newspaper did not exercise its right to refuse to publish or modify the comments, that meant it approved of them.

Trkulja v Google Inc. & Google Australia Pty Ltd (No 5) [2012] VSC 533

Video Overview by Patrick Johnson: Trkulja v Google

The plaintiff successfully obtained a verdict of defamation against Google Inc. in a trial by jury in respect of photos posted on the internet. The plaintiff claimed that a Google search of his name showed results that displayed his picture and name together with pictures of other individuals either known to have committed serious criminal offences or against whom serious criminal allegations had been made and an article with the heading Melbourne Crime.

The photos appeared in an online news article about a Melbourne shooting. The plaintiff successfully convinced the jury that the photos imputed that he was a prominent figure in the Melbourne criminal underworld, and Google Inc. (but not Google Australia) was ordered to pay damages.

Google Inc. then applied to have the verdict set aside on the basis that there was no evidence upon which a reasonable jury could return a verdict for the plaintiff. Google argued this was because, amongst other things, it was not a “publisher” of the images; rather, even with notice of the material, it was merely a passive platform provider not capable.

The plaintiff argued that Google Inc. was a “publisher” of the images, on two bases: first, Google’s automated systems were programmed by humans to do exactly as intended and publish the material; and second, Google’s failure to take steps to remove the relevant URL for the page on which the defamatory material appeared after the plaintiff’s several requests it do so.

The court declined to overturn the jury’s verdict, accepting the arguments put forth by Trkulja.²⁰

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In respect of Trkulja’s first argument, the Court focused its reasoning heavily on Google’s intention as manifested in the operation of its automated system, comparing Google to a newsagent selling a newspaper containing a defamatory article. While not specifically intending to publish defamatory material, it intended, the Court held, to publish the material it produced (see [18]). Google Inc. could not here say that its conduct was merely passive. Beach J distinguished Tamiz v Google Inc [2012] EWHC 449 and even doubted whether Google could be described as an “internet intermediary” in this context since the material was produced as a result of the operation of its search engine (see [29]). Interestingly, Tamiz was the case which was held to be persuasive by the court in Duffy, so there is an inconsistency of judicial opinions here.

So far as Trkulja’s second argument was concerned, the Court held that after being given notice, Google’s power and failure to stop publication was capable of leading to an inference that it consented to the publication (see [31]). Google was aware of the defamatory material, and could have removed from its searches the URL to the page with the defamatory photographs.

Trkulja v Google LLC [2018] HCA 25

Video overview by Elizabeth MacGillivray: Trkulja v Google LLC [2018]

In 2012, Trkulja successfully sued Google in the Victorian Supreme Court, arguing that the publication of such web pages was defamatory. In 2015, Trkulja alleged that Google had engaged in further defamatory conduct by way of auto-complete search predictions and associative image search results. Trkulja provided evidence of his name in a search bar, with autocomplete predictive words that linked him with the underworld killings and criminals, and photos of his face in the image search tab next to other known Melbourne criminals. Upon Trkulja’s success, Google then successfully appealed the decision in 2016, with the Court of Appeal ruling that Trkulja would have ‘no real prospect of success’. However, in 2018 Trkulja subsequently appealed to the High Court of Australia, where it was held that the Court of Appeal had erred in its decision and had applied the wrong test in determining whether defamatory conduct was evident. With the High Court’s go-ahead, Trkulja’s case can therefore proceed in the Supreme Court of Victoria.

Defteros v Google Inc LLC [2018] VSCA 176 (25 July 2018)

Overview by Stacey M: Defteros v Google Inc LLC [2018] VSCA 176 (25 July 2018)

This case controversially found that merely linking in search results to third party pages can be defamatory. The Court held that provision of a hyperlink to content amounts to publication – the hyperlink is the means of communicating the content. The hyperlinks facilitates communication of the content to such a substantial degree that it amounts to publication.

An intermediary publisher can only rely on the innocent dissemination defence until they receive a cease-and-desist notice. Once notice is received, it must be acted on within a reasonable timeframe to avoid liability. In this case, that timeframe was 7 days.

Rana v Google Australia Pty Ltd [2013] FCA 60

Video Overview by Carlie McCulloch: Rana v Google

Rana sought leave to serve proceedings on Google Inc (USA-based), claiming Google was liable as publisher of a third party’s defamatory websites as appearing in Google’s search results; significant reliance was placed on the Trkulja case. Google sought summary judgment dismissing the claim, on the basis of no reasonable prospect of establishing Google was the publisher of the websites.

Justice Mansfield granted leave to serve the proceedings (see [58]). His Honour found it inappropriate to refuse leave on the basis that Google Inc. was not the “publisher” of the defamatory material, given the inconsistency between Duffy and Trkulja.

Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350

Video Overview by Matthew Dolan: Visscher v MUA

This was a (non-jury) defamation trial before the New South Wales Supreme Court. The court held that an online article’s hyperlink to another, defamatory, article amounted to a “publication” according to the Urbanchich test.

A critical factor was that the hyperlink was prefaced by words inviting the reader to read the “full story” which, in the Court’s view, made clear that the hyperlinked material was being endorsed/adopted/promoted by the defendant. Thus, while Beech-Jones J seemed to accept that posting of a hyperlink on its own may not amount to publication of the linked material (see [28]), his Honour considered that context was important:

By publishing the MUA article with its hyperlink to the Cootamundra Herald article, the MUA clearly accepted responsibility for the continued publication of the Cootamundra Herald article. Its actions amounted to, at the very least, an adoption or promotion of the content of the Cootamundra Herald article. The MUA article introduced the reader to the danger faced by the MUA crew. It provided details about their plight and then invited a viewing of the “full story” by having the reader click on a hyperlink. In context, it conveyed that the details published in the MUA article were part of a more complete version (the “full story”) which was to be found by clicking the hyperlink. (See [30])

The Court here rejected the approach adopted by the majority in the Supreme Court of Canada case of Crookes v Newton [2011] 3 SCR 269. In Crookes, it was held that the online posting of a hyperlink does not constitute publication of a defamatory statement, as an online link will only be defamatory if it actually repeats defamatory material. The reasoning here is that a hyperlink merely identifies the location of an article, but does not incorporate the text or in any way adopt it. Links among websites create the fabric of the web and play a pivotal role in social media as users rapidly share links amongst each other. The threat of liability for the mere posting of a link would unnecessarily chill the further development of online media and social spaces.

Beech-Jones J distinguished Crookes on three grounds. First, that the Supreme Court of Canada’s reasoning was informed by the Canadian Charter of Rights and Freedoms – of which there is no equivalent in New South Wales. Secondly, that it was difficult to accept that the hyperlink would need to repeat the defamatory material to amount to “publication”. Such an approach, in his Honour’s view, takes context out of the analysis and forecloses the ability for the law to conform to changing internet norms in the future. Thirdly, that the Court’s reasoning was inconsistent with the principle in Urbanchich – namely, that defamation can be imputed against a defendant who approved, adopted, promoted or in some way ratified the content.

Trkulja v Yahoo! Inc LLC [2012] VSC 88

Video Overview by Stuart Efstathis: Trkulja v Yahoo

In Trkulja v Yahoo! LLC, T sued Yahoo for publishing a story on an attempted hit on T’s life through the Yahoo!7 search service on a website entitled “Melbourne Crime”. Next to a large photo of T appeared the text of the article:

“Police Chief Christine Nixon has been urged to re-open an investigation into an unsolved murder attempt. Former music promoter Michael Trkulja was shot in the back by a hitman wearing a balaclava while dining at a St Albans restaurant in June 2004.The would-be killer fled after his pistol jammed as he prepared to fire a second shot at Mr Trkulja, who had been enjoying a Sunday lunch with his elderly mother.

A Victoria Police document reveals detectives dropped the investigation because of a lack of evidence. But Mr Trkulja, 58, now claims to know the identity of the hit man and those who hired him. He says he has passed the names to the police. ‘He (the hit man) was offered $10,000 to kill me, I know who sent him and they know that I know who they are,’ Mr Trkulja told the Herald Sun.

‘Nobody should be shot like this.’ Mr Trkulja’s lawyer, high profile solicitor George Defteros, has written to Ms Nixon seeking a fresh investigation and the request is being considered.”

T was a well-known music promoter who regularly appeared in the media. T alleged that the article was defamatory due to the imputations:

• That the plaintiff was a criminal;
• The plaintiff was so involved in crime that his rivals had put a hit on him; and
• That the plaintiff was such a significant figure in Melbourne crime that the events involving him were recorded on a website that commonly reported on matters of Melbourne crime.

Yahoo ultimately admitted publication, but submitted that the article did not convey the imputations and denied that the plaintiff had been defamed. Question of whether the indexation of the article on the Yahoo search engine constituted publication was not determined.

HELD, the article carried imputations 2 and 3 and those were defamatory of the plaintiff. The article reached a widespread audience and thus the damage to the plaintiff’s reputation was similarly widespread. The fact that the material remained available through the Yahoo! search engine, without being removed, served to increase the damage to the plaintiff’s reputation throughout the community. Aggravated damages was not awarded, but T still received $225,000.

Bleyer v Google Inc LLC (2014) 311 ALR 529

Video Overview by Claire Stewart: Bleyer v Google Inc

Facts: Proceedings in the NSW Supreme Court; B alleged that Google published seven defamatory items about him to three people when those people performed Google searches; Material was made up of ‘snippets’ (the excerpts a user sees in a list of search results) and hyperlinks to the offending articles; B alleged that two of the three readers accessed the material in December 2012; In March 2013, B’s solicitor asked Google to remove the items from its search; Google didn’t do this until May 2013 and even then not everything was removed; Another person accessed the information in April; and Google applied to the NSWSC for the proceedings to be stayed or dismissed as an abuse of process.

Issue: Was google a publisher of the material for the purposes of defamation law? Was there a substantial disproportion between the cost of the proceedings reaching a conclusion and the potential outcome?

Decision: The proceedings were permanently stayed. Justice McCallum firstly considered whether or not Google was a publisher. Her Honour chose the follow the UK authorities c.f. Victorian authorities (see, for eg, Trkulja v Google (No 5)) given that there was no human input in the search engine apart from setting it up in the first place “at least prior to notification of a complaint … Google Inc cannot be liable as a publisher of the results produced by its search engine”. Her Honour did not rule on whether Google had published the material accessed in April, after Google had become aware of B’s complaint.

Ultimately the case was decided on whether it was proportionate for the case to continue (i.e. whether it was worth continuing given the potential costs and outcome of the decision to the plaintiff): Google referred to Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA CIV 75 (a UK Court of Appeal defamation case) where an insignificant level of publication in the UK meant that there was not a “real and substantial tort”. In the words of the Court, even if the claimant succeeded, “the game will not merely not have been worth the candle, it will not have been worth the wick”. This approach had not been followed in Australian courts before but her Honour agreed that the Court is able to stay or dismiss proceedings if “the resources required to determine a claim and the interest at stake” were vastly disproportionate. Considerations beyond monetary value such as vindication of reputation are relevant.

After the decision about Google’s status as a publisher had been made, the case rested on one potential publication to a reader in April. The claim would be difficult to make out and defend and any judgment would more than likely be unenforceable against Google in the US anyway. As such, her Honour held that the resources of the court and parties to determine the claim would be “out of all proportion” to B’s interest.

Crookes v Newton [2011] 3 SCR 269

Video Overviews on Crooks v Newton by Clairlaw and Daniel Hill

Facts: C sued N for defamation after N refused to remove a pair of links on his website. The links pointed to materials elsewhere on the web that C alleged were defamatory. N did not author the materials nor locate them on C’s website. The only connection between the materials and N was the hyperlink on C’s website.

Decision: Appeal dismissed. The online posting of a hyperlink does not constitute publication of a defamatory statement. There is no liability for posting such hyperlinks nor any obligation to remove them. Upholds online free speech rights, maintaining that an online link will only be defamatory if it actually repeats defamatory material.

Reasoning: A hyperlink merely identifies the location of an article. It does not incorporate the text or in any way adopt it. Links among websites create the fabric of the web and play a pivotal role in social media as users share links amongst each other. The threat of liability for the posting of a link would unnecessarily chill the further development of online media and social spaces.

Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475

Facts: Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475 explores the liability of Internet forum operators for racial vilification pursuant to the Racial Discrimination Act 1975 (Cth) (“RDA”). The applicant (Dr Silberberg) was the managing director of the Housing Industry Association Ltd (HIA). HIA was a company representing the interests of people involved in the residential building industry. The Builders Collective of Australia Inc (BCA) was an incorporated association made up of predomonantly small builders and opposed policies of the HIA in many areas. The BCA operated a website. On that website there was a discussion forum which contained confidential information surrounding the building of transmitter sites for the Digital Radio Oceane project. In May 2005 and January 2006, a registered user of the forum posted messages suggesting that Dr Silberberg’s Jewish background was responsible for a perceived unhealthy monetary focus on the part of the HIA. Dr Silberberg complained to the Human Rights and Equal Opportunity Commission, which was subsequently terminated. Dr Silberberg commenced proceedings in the Federal Court against the BCA and the forum user.

Decision: In sum, the forum user had unlawfully racially discriminated against Silberberg. The failure of the forum operator to remove the discriminatory postings was not proven to be racially motivated.

Held (per Gyles J): The forum postings conveyed the anti-Semitic imputations alleged by Silberberg. The forum user (the second respondent) posted the comments because of Silberberg’s Jewish background. The messages were reasonably likely, in all the circumstances, to offend and insult Dr Silberberg or other Jewish people. Their posting contravened s.18C of the Racial Discrimination Act 1975 (Cth). The BCA had knowledge of the presence of one of the offensive postings in the forum and failed to remove it. Not proven that the BCA failed to remove it because of the race or ethnicity of Dr Silberberg, as required by the RDA. The case against the BCA was dismissed.