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Google Inc V Duffy

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Google Inc V Duffy 304 SUPREME COURT OF SOUTH AUSTRALIA [(2017) SUPREME COURT OF SOUTH AUSTRALIA (FULL COURT) Google Inc v Duffy [2017] SASCFC 130 Kourakis CJ, Peek and Hinton JJ 4-6 May 2016; 4 October 2017 Defamation — Publication — Generally — Internet publications — Defamatory material published on various websites — Internet search engine displayed extracts from material, presented hyperlinks to material and autocompleted searches — Whether search engine a secondary publisher of defamatory material. Defamation — Publication — Generally — Republication — Whether search engine republished defamatory material published on third party webpages by displaying URLs of webpages. Defamation — Other defences — Innocent dissemination — What constitutes. Defamation — Privilege — Qualified privilege — Statements made in respect of a duty or interest — Internet publications — Defamatory material published on various websites — Internet search engine republished defamatory material — Whether search engine entitled to statutory defence of qualified privilege — Whether recipients of search results have interest or apparent interest in having information on subject matter of defamatory material — Whether search engine’s conduct reasonable — Defamation Act 2005 (SA), s 28. Between December 2007 and January 2009, six articles concerning the respondent were published on a website (the primary website) which the respondent claimed contained defamatory imputations, including that she stalked and harassed psychics. Other websites published material derived from the primary website concerning the respondent. In July 2009, the respondent became aware that searches for her name on the websites of the appellant (Google) resulted in the display of extracts from the alleged defamatory material that referred to her as a “psychic stalker” (the paragraphs), hyperlinks to that material and past searches of the respondent as a “psychic stalker” by virtue of the operation of Google’s “autocomplete function”. In September 2009, the respondent notified Google of the alleged defamatory material which was being published (in the case of the paragraphs and the autocompleted searches) or republished (in the case of the hyperlinks) by Google and requested the removal of that material. After it refused the request, the respondent commenced defamation proceedings against Google. The trial judge 129 SASR 304] GOOGLE INC v DUFFY 305 found in favour of the respondent and awarded her $115,000, inclusive of interest, in general damages but did not make an award for loss of earning capacity or aggravated damages. Google appealed against the judgment of the trial judge and the respondent cross-appealed against the award of damages. Although Google did not disagree with the finding that the material published by or derived from the primary website was defamatory, it challenged the trial judge’s conclusion that it defamed the respondent and related findings. In addition, Google claimed to be entitled to the statutory defence of qualified privilege contained in s 28 of the Defamation Act 2005 (SA) on the basis that its conduct was reasonable and that the persons to whom the paragraphs were published had an interest in their subject matter. Section 28(1) relevantly provided: (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the “recipient”) if the defendant proves that — (a) the recipient has an interest or apparent interest in having information on some subject; and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. Held, by Peek J and Hinton J, Kourakis CJ dissenting, dismissing the appeal: (1) (by Kourakis CJ, Peek J agreeing, and by Hinton J) The trial judge was correct to find that Google published the search results. [181], [354], [594], [597] Trkulja v Google Inc LLC (No 5) [2012] VSC 533, followed. Bunt v Tilley [2007] 1 WLR 1243; Tamiz v Google Inc [2012] EWHC 449, not followed. (2) (by Kourakis CJ, Peek J and Hinton J agreeing) The trial judge was correct to conclude that Google republished the relevant articles from the primary website by abstracting sufficient material to inform the searcher of their contents, by repeating and drawing attention to the defamatory imputation, and by providing instantaneous access to them though the hyperlinks. [187], [354], [562], [599] Per Kourakis CJ, Peek J agreeing: (i) The tort of defamation has the following elements: (i) The defendant participates in the publication to a third party of a body of work containing the defamatory material; (ii) The defendant does so knowing that the work contains the defamatory material. That knowledge is presumed conclusively in the case of a primary participant, but may be rebutted by a secondary participant who does not know and could not reasonably have known of the presence of the material; (iii) The passage conveys an imputation; (iv) The imputation is about the plaintiff; (v) The imputation is damaging to the plaintiff’s reputation. [87], [102], [354] Emmens v Pottle (1885) 16 QBD 354; Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170, followed. (ii) In the case of dissemination through the World Wide Web, the first issue to be considered is whether an entity’s role as facilitator through its search engine is sufficiently proximate to the display of the search results themselves to constitute participation in the publication of their contents. [135], [354] (iii) It is not necessary in order to prove an intentional act of publication that Google had knowledge of or adopted, in any sense, the content of its search results. [156], [354] Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 69,190 306 SUPREME COURT OF SOUTH AUSTRALIA [(2017) (81-127); Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366, discussed. Per Hinton J: The elements of the tort of defamation differ depending upon whether the defendant is a primary or a subordinate publisher. Characterisation of a defendant as either a primary publisher or a subordinate publisher is determinative of whether a defendant may take advantage of the defence of innocent dissemination. [578], [584] Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574, applied. Trkulja v Google Inc LLC (No 5) [2012] VSC 533; Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366, followed. Further held, by Kourakis CJ, Peek J agreeing and by Hinton J: (3) Google should be regarded as a secondary publisher of its search results. [184], [354], [597] (4) Google only became liable as a secondary publisher after it was put on notice. It could then reasonably be attributed with knowledge of the subsequent publications its search engine was likely to produce if it did not take steps to block the offending URL. Google could therefore be excused from liability for publications made by its search engines for such time as was reasonably necessary to block the source URL. [185], [354], [598] Crookes v Newton [2011] 3 SCR 269, followed. Metropolitan International Schools Ltd (t/a SkillsTrain and t/a Train2Game) v Designtechnica Corp (t/a Digital Trends) [2011] 1 WLR 1743, discussed. Per Kourakis CJ, Peek J and Hinton J agreeing: In the circumstances, it was necessary to modify the innocent dissemination rule to allow a reasonable time in which to alter and modify the results obtained using Google’s search engine before imposing liability on Google for the publication of the defamatory material. [184], [354], [598] Further held, by Peek J and Hinton J, Kourakis CJ dissenting: (5) The trial judge was correct to conclude that Google’s defence of qualified privilege was not made out. [354], [620]-[621] Per Peek J: (i) For an individual to have an interest in having information on some subject sufficient to satisfy s 28(1)(a), the interest must be more than a matter of mere curiosity, but a matter of substance apart from its mere quality as news. A user does not, by merely entering a search term into a search engine, establish an interest so as to satisfy s 28(1)(a). [357] Guise v Kouvelis (1947) 74 CLR 102; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, applied. (ii) The fact that defamatory words were published at the same time as words giving readers information about a relevant subject does not mean that the defamatory words were published in the course of giving readers information about the relevant subject. To fall within s 28(1)(b), the defamatory words must be sufficiently connected with the subject that may have been of interest. [357], [434] Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, applied. (iii) The trial judge was correct to conclude that, because Google published the defamatory words indiscriminately to anyone who wanted to search for references on the web to the respondent, regardless of the person’s purpose or interest, the requirement that the recipients had an interest in having information on the subject was not satisfied. [357], [470]-[471] 129 SASR 304] GOOGLE INC v DUFFY 307 Per Hinton J: Google published the content of the paragraphs and underlying web pages to anyone who chose to use the Google search engine and the relevant search terms. However, the evidence did not establish the requisite interest possessed by those who used the Google search engine and searched the respondent’s name during the relevant period for the purposes of s 28(1)(a). The trial judge was correct to reject the statutory defence of qualified privilege on the basis that Google failed to prove the relevant interest. [607], [614]-[615], [620] Stone v Moore (2016) 125 SASR 81, followed. Per Peek J, Hinton J agreeing: In respect of each publication by Google, having regard to all of the facts and circumstances, including the actions of Google towards the respondent throughout her efforts to have the defamatory search results removed, the trial judge was correct to conclude that Google failed to establish that its conduct was reasonable under s 28(1)(c).
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