DEFAMATION - PUBLICATION - GENERALLY - AS CAUSE OF ACTION
DEFAMATION - PUBLICATION - GENERALLY - REPUBLICATION
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE
DEFAMATION - OTHER DEFENCES
DEFAMATION - JUSTIFICATION - TRUTH - SUBSTANTIAL TRUTH AND CONTEXTUAL TRUTH
Action for defamation.
Between December 2007 and January 2009, six articles were published on the Ripoff Report website about the plaintiff. Other websites published material about the plaintiff ostensibly derived from the Ripoff Report articles.
In September 2009, the plaintiff notified the defendant that searches for her name resulted in defamatory paragraphs displayed on the defendant’s websites derived from and containing hyperlinks to six defamatory webpages on the Ripoff Report website and some of the secondary websites. The plaintiff requested removal of the paragraphs and hyperlinks from the defendant’s websites. The defendant did not remove the material until 2011 when it removed the material relating to the six Ripoff Report webpages but not the other webpages.
In July 2011, the plaintiff notified the defendant that searches for her name on its websites resulted in the display by the defendant’s Autocomplete utility of the defamatory alternative search term “Janice Duffy Pyschic Stalker” and requested its removal. The defendant did not remove it.
The plaintiff contends that after receiving notification from her the defendant published on its websites material the subject of the notifications that was defamatory of her. The plaintiff contends that publication was made to Ms Palumbo, Mr Trkulja and substantial numbers of persons unknown.
The defendant denies publication and relies on defences of innocent dissemination, qualified privilege, justification and contextual truth. Other defences and issues relating to damages are to be determined at a subsequent trial.
Held:
1. The defendant was a publisher of allegedly defamatory paragraphs on its websites and a republisher via hyperlinks to the Ripoff Report webpages the subject of those paragraphs being those for which the plaintiff sues and of which the plaintiff gave notification and which the defendant failed to remove within a reasonable time. This applies to the first four Ripoff Report webpages and the paragraphs referring to them and several paragraphs referring to secondary websites' (at [204]-[207], [221], [226]-[230], [233], [240]-[255]).
2. The defendant published to Ms Palumbo in mid and late 2010 paragraphs relating to the first and second Ripoff Report webpages and republished the webpages themselves and in 2012 the Autocomplete words “Janice Duffy Psychic Stalker” (at [267]-[270], [273]-[274], [279]-[282], [284]).
3. The defendant did not relevantly publish any material to Mr Trkulja (at [288]-[293]).
4. The defendant published to substantial numbers of persons unknown in Australia the first and second Ripoff Report webpages and republished the webpages themselves. The defendant also published two paragraphs relating to Complaints Board webpages, one paragraph relating to a 123 People webpage and the Autocomplete words “Janice Duffy Psychic Stalker” (at [313]-[319], [322]-[325], [329], [343]-[345]).
5. The paragraphs relating to the first and second…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Duffy v Google Inc [2015] SASC 170
Case
[2015] SASC 170
Decision Date
CaseChat Overview and Summary
The case of Duffy v Google Inc involved a claim of defamation brought by Dr Janice Duffy against Google Inc. Dr Duffy alleged that Google was responsible for the republication of defamatory content about her on the internet, which had been originally published on third-party websites. The dispute centred on whether Google was liable for the defamatory content published on these websites, which was accessible through Google search results. The case was heard in the Federal Court of Australia.
The central legal issues addressed by the Court were whether Google had republished the defamatory content, and if so, whether Google could rely on any defences to the defamation claim. The Court had to determine if Google's actions amounted to republication, and if Google could claim qualified privilege or if the content was substantially or contextually true. The Court also considered whether Google could rely on other defences available in defamation law.
The Court held that Google had republished the defamatory content by including it in its search results, thereby making it accessible to a substantial number of people. The Court found that Google could not rely on the defence of qualified privilege as the defamatory content was not communicated in good faith for a legitimate purpose. The Court further held that the defence of contextual truth was not established because the defamatory content was not substantially or contextually true. The Court also noted that there were no other defences available to Google that would absolve it of liability.
The Court concluded that Google was liable for the republication of the defamatory content and awarded Dr Duffy damages for the harm caused. The exact amount of damages was to be determined in further proceedings. The Court's decision underscored the importance of search engine companies taking responsibility for the content they publish and the need for them to implement measures to prevent the republication of defamatory material.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The defence of contextual truth is not established.Conclusion Between January and December 2010, Google published to a substantial number of persons searching for “Dr Janice Duffy” or “Janice Duffy” the first Ripoff Report webpage that contained the following imputations defamatory of Dr Duffy:1.Dr Duffy stalks psychics;2.Dr Duffy harasses psychics by persistently and obsessively pursuing them;3.Dr Duffy spreads malicious lies and gossip about other people with a view to gaining sympathy for herself;4.Dr Duffy spreads lies about people dying;5.Dr Duffy spreads lies about people committing suicide;6.Dr Duffy is an embarrassment to her profession; 7.Dr Duffy is unable to function in day-to-day life;8.Dr Duffy has been laid off by the hospital where she works because she cannot function in day-to-day life. Between January and December 2010, Google published to a substantial number of persons searching for “Dr Janice Duffy” the paragraph extracted at [335] above (first occurring) relating to the first Ripoff Report webpage that contained the following imputations defamatory of Dr Duffy:1.Dr Duffy stalks psychics;2. Dr Duffy is an embarrassment to her profession. Between January and December 2010, Google published to a substantial number of persons searching for “Janice Duffy” the paragraph extracted at [358] above (first appearing) relating to the first Ripoff Report webpage that contained the following imputations defamatory of Dr Duffy:1.Dr Duffy stalks psychics. Between January and December 2010, Google published to a substantial number of persons searching for “Dr Janice Duffy” or “Janice Duffy” the second Ripoff Report webpage that contained the following imputations defamatory of Dr Duffy:1.Dr Duffy stalks psychics;2.Dr Duffy harasses psychics by persistently and obsessively pursuing them;3Dr Duffy, without their permission, fraudulently and/or maliciously accesses other peoples’ emails, stored electronic materials and/or electronic memberships; 4.Dr Duffy made unfair, inaccurate and damaging reports about psychics;5.Dr Duffy has disseminated lies about psychics; 6.Dr Duffy spreads malicious lies and gossip about other people with a view to gaining sympathy for herself; 7.Dr Duffy spreads lies about people dying;8.Dr Duffy has engaged in criminal conduct;9.Dr Duffy threatens and manipulates people to further her own ends. Between January and December 2010, Google published to a substantial number of persons searching for “Dr Janice Duffy” or “Janice Duffy” the paragraph extracted at [358] above (first occurring) relating to the second Ripoff Report webpage that contained the following imputations defamatory of Dr Duffy:1.Dr Duffy harasses psychics by persistently and obsessively pursuing them;2.Dr Duffy stalks psychics. Between January and October 2010, Google published to a substantial number of persons searching for “Dr Janice Duffy” the paragraph extracted at [358] above (second occurring) relating to the first 123 People webpage that contained the following imputations defamatory of Dr Duffy:1.Dr Duffy stalks psychics.