The South Australian Supreme Court has broken new legal ground this week after finding Google legally responsible for hyperlinks to defamatory paragraphs published on a US based website. Justice Blue of the South Australian Supreme Court found that Dr Janice Duffy’s case against the search engine could proceed to trial, dismissing Google’s argument that they should not be responsible for material linked from its website.
According to an article in The Conversation by Queensland University of Technology Senior Lecture Nicolas Suzor, the case demonstrates an emerging conflict between enforcement of laws and freedom of speech:
“The trade-offs here are extremely difficult. On the one hand, where search engines and other intermediaries are not held to account, people are exposed to real harm by the continued availability of abusive and defamatory content.
On the other hand, holding these private companies responsible, particularly if they are forced to pay damages, means that they will often either leave the country or limit their risks by removing speech that may not actually be unlawful.”
He also pointed out that the case raised some questions about jurisdiction, noting that “Dr Duffy lost a case against Google Australia several years ago, because the court found that the search giant’s Australian arm had no effective control over search results”. He also expressed concern that continued uncertainty over legal liability in the technology sphere was unfair to Australian technology companies, who would be disadvantaged over international companies who could ignore Australian judgments.
Dr Duffy sued Google after finding links to articles she considered defamatory on a US based website called “Ripoff Report”. Similar articles were published on a number of other websites. Between 2009 and 2011 Dr Duffy sent a number of emails to Google Australia asking for the links to be removed. Following the initiation of proceedings, Google removed some links from the Google Australia website (but not from the Google.com homepage). Dr Duffy also sued in relation to Google’s “autocomplete” search facility that produced the phrase “Janice duffy psychic stalker” when her name was searched.
The trial focused purely on “liability issues”, meaning a trial held this month will cover issues relating to damages. Justice Blue focussed on whether Google could be said have published the material in question and whether a number of defences (innocent dissemination, qualified privilege, justification and contextual truth) could be successfully made out.
The case contains a lengthy discussion on whether or not Google should be considered a publisher for the purpose of defamation law. Justice Blue wrote [at 204]:
“Google was the sole operator and controller of the Google website. The paragraphs [the search results] 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.”
He also found that the various defences argued by Google failed and ordered the case to proceed to trial on the remaining issues “being the defences of triviality and time limitation, the application for an extension of time, and causation and quantum of damages” [at 481].
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Duffy v Google Inc  SASC 170
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