Google liable for defamation through search and autocomplete features: Duffy v Google

November 5th, 2015 by Barry Sookman Leave a reply »

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 Google being a publisher of them after notification by Dr Duffy. If Google personnel were made aware of the existence of the paragraphs generated by Google’s own software programs and failed to remove them, their continuing existence thereafter was the direct result of human action or inaction rather than merely the result of machine operation.

Approaching the question from first principles, Google was a secondary publisher of the paragraphs after notification and lapse of a reasonable time to allow for their removal (if that occurred).

There is no case in which it has been held that a search engine operator does not publish such paragraphs after the operator has been notified of them and failed to remove them within a reasonable time. In Metropolitan International Schools Ltd (trading as SkillsTrain and/or Train2Game) v Designtechnica Corp (trading as Digital Trends) and others,[143] Eady J held that Google was not a publisher of such paragraphs before notification or while taking reasonable steps to remove them after notification. Eady J did not go so far as to hold that Google could not be a publisher if it refused to remove them after notification. McCallum J in Bleyer v Google Inc LLC[144] and Fenlon J in [the British Columbia case] Niemela v Malamas[145] each held that Google was not a publisher of such paragraphs before notification but explicitly said that the same conclusion did not necessarily apply after notification. The reasoning of Fenlon J strongly suggests that her Honour would have concluded that Google was a publisher of such paragraphs after notification. In particular, Fenlon J considered that the only real difference between the innocent dissemination test and the passive instrument test involves the burden of proof.

I conclude that Google was a publisher of the paragraphs relating to Dr Duffy if and to the extent that Google failed to remove them after a reasonable time elapsed after effective notification by Dr Duffy.

The second issue in the case was whether the content of the external webpages was republished by Google when users clicked on hyperlinks displayed by the Google website when conducting searches for Dr Duffy’s name. An example is the search result below which contains the hyperlink to allegedly defamatory material.

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

The Court held that publishing a hyperlink to defamatory material along with search results information made Google a secondary publisher of the information. In reaching its conclusion, the court relied on, among others, the important decision of the Supreme Court of Canada in the Crookes case. According to the court:

In the case of the URL contained in the paragraph extracted at [214] above, it is necessary to have regard to the text of the title and the snippet in conjunction with the fact that the title functions also as a hyperlink. The text and the hyperlink comprise an integrated whole. The text says that Dr Duffy is a stalker of psychics of whom psychics should beware and offers by clicking on the title on the Google webpage to deliver to the user the Ripoff Report webpage that provides more detail. The user does not need to enter the URL into the user’s web browser; the Google website is programmed automatically to cause the browser to display the Ripoff Report webpage by clicking on the hyperlink. In these circumstances, Google is a secondary publisher of the Ripoff Report webpage if and to the extent that Google failed to remove the paragraph incorporating the hyperlink after a reasonable time elapsed after effective notification by Dr Duffy.

This conclusion is supported by the judgment of Beach J in Trkulja v Google Inc LLC (No 5),[152] in which his Honour held that it was open to the jury to conclude that Google was a publisher of the snippets and hyperlink alike, treating the two as an integrated whole.

In Crookes v Wikimedia Foundation Inc,[153] the Supreme Court of Canada considered that it was critical to take into account the text comprising or surrounding a hyperlink to determine whether the operator of the website upon which the hyperlink resided was a publisher of the material contained on the external webpage to which the hyperlink led. The Court held that merely creating a hyperlink without more did not amount to publication of the material on the external webpage. The Court held that the position might be different if some text from the external webpage were reproduced. Abella J (with whom Binnie, LeBel, Charron, Rothstein and Cromwell JJ agreed) gave as an example:

This might be found to occur, for example, where a person places a reference in a text that repeats defamatory content from a secondary source.[154]

Another issue in the case was whether the generation by Google’s Autocomplete and Related Search features at the Google websites of the words “janice duffy psychic stalker” when a user entered the search term “Janice Duffy” was a publication by Google after notification and failure by Google to remove it within a reasonable time thereafter.

The court found Google liable for not ceasing to publish the defamatory search suggestions to users. It did so relying, in part, on a prior Hong Kong case, Dr Yeung Sau Shing Albert v Google Inc.[158], where Deputy Judge Marlene Ng held that there was a good arguable case that an operator whose search engine generates objectively defamatory materials by its automated processes is a “publisher” and that Google was more than a passive facilitator vis-à-vis its Autocomplete and Related Search utilities.

 

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