Duffy v Google Inc - [2011] SADC 178

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DUFFY v GOOGLE INC & ANOR
[2011] SADC 178
Judgment of His Honour Judge Millsteed
15 November 2011
DEFAMATION - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS
Plaintiff initiated proceedings in defamation against first and second defendants - first defendant and second defendant incorporated in United States of America and Australia respectively - second defendant wholly owned subsidiary of first defendant - first defendant internet search engine provider - plaintiff applies for injunctive relief in respect of alleged offending material appearing on first defendant's websites - second defendant had no control over publication of material - application against second defendant dismissed - application against first defendant dismissed on consideration of balance of convenience.
Limitation of Actions Act 1936 s 37, referred to.
Australian Broadcasting Corporations v O'Neill (2006) 227 CLR 57 ; Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440; Active Leisure Sports Pty Ltd v Sportsmans Australia Limited [1991] 1 Qd R 301; Metropolitan International Schools Ltd v Designtechnia Corp [2010] 3 A11 ER 548; Remm Construction v Allco Newsteel (1990) 53 SASR 471, considered.

DUFFY v GOOGLE INC & ANOR
[2011] SADC 178
Introduction

The plaintiff Dr Janice Margaret Duffy has instituted proceedings in defamation against the first defendant, Google Inc, and the second defendant, Google Australia Pty Ltd (“Google Australia”), in respect of certain alleged defamatory material appearing on internet websites or domains, owned by Google Inc. The plaintiff now applies for interlocutory injunctive relief against both defendants. The application is opposed.
Background
Google Inc is incorporated in the state of Delaware in the United States of America. The company conducts a global business providing internet based services. Those services include the use of internet search engines known as “Google Search” which are accessible at numerous world wide domains owned by Google Inc including and Google Australia is a private company incorporated in Australia and is a wholly subsidiary of Google International LLC of which Google Inc is the ultimate holding company.
[1] Domains which include a country specific extension such as "au" for Australia, "nz" for New Zealand, "uk" for the United Kingdom and "fr" for France are generally intended for access by users located in that particular country.
Google Search
In order to understand some of the issues in these proceedings it is necessary to provide a brief explanation of how Google search engines operate.
Broadly speaking the internet is a global network of interconnected computers. The World Wide Web (the web) comprises a series of web pages hosted on computers (servers) connected to the internet. Each web page has an address called a Uniform Resource Locator (URL). A person searching the Web (the user) is able to view a web page by using a software program on his or her computer called a web browser. The user is required to type into the web browser the URL of the web page to be viewed. The web page is then sent by the server to the user’s computer. There is no central control or cataloguing system of information available on the web. Accordingly, locating particular information can be difficult unless the user knows the URL of a webpage containing information the user is after.
Google Search and other internet search engines are automated information retrieval systems which “crawl” the web and index web pages. The indexed web pages are stored in a database (“the index”). When a person uses Google Search the automated search process extracts information from the index about web pages that contain, or are relevant to, keywords or queries entered by the user. This is achieved by the search engine’s use of pre-programmed algorithms. The search produces a list of URL’s. Above each URL appears a brief extract or ‘snippet’ from the web page to which it is linked. I will refer to the URL list and accompanying snippets as the Google Search results.
The above explanation of how Google search engines operate was derived primarily from information contained in the affidavit of Andrew Gavin Stewart, the defendant’s solicitor (FDN 13).
The plaintiff does not dispute the automated nature of Google search engines but, nevertheless, asserts in her statement of claim (FDN 3) that Google Inc:
·has complete control over the form of Google Search results that appear on its domains;
·provides its determination and opinion as to the relative importance of URL’s listed in Google Search results in response to a users search queries; and
·makes editorial decisions as to the content of Google Search results.
The plaintiff further asserts that Google Australia carries on or participates in Google Inc’s business in Australia by assisting Google Inc to operate domains accessible in Australia including the making of editorial decisions as to the content of Google Search results that appear on those domains.
These assertions are disputed by the defendants.
The affidavit of Mr Stewart states that Google Inc alone controls the Google Search operations for all Google domains and does not allow Google Australia to exercise any control over the functioning of Google Search. Accordingly, the removal of specific URL’s and snippets from the index is governed by Google Inc alone. Furthermore, Google Inc’s only editorial involvement in relation to Google Search results is the design of the algorithms used to compare search queries with the index. Exhibits annexed to Mr Stewart’s affidavit (the “Terms of Service” for users in Australia issued by Google Inc (FDN 13.3) and a copy of Google web search pages explaining the process for removing information on Google domains issued by Google Inc (FDN 13.4)) support the defendants’ case on these issues.
Brief history of plaintiff’s claim
According to the plaintiff’s statement of claim (FDN 3), and her affidavit (FDN 7) filed in support of this interlocutory application, she is a qualified researcher in the fields of clinical medicine and public health. She was employed as a Senior Research Officer with the South Australian Department of Health (SA Health) for about 7 years. Her employment ended on 10 August 2010.
In February 2009 she discovered that Google searches of her name, or variants thereof, produced search results of URL links to web pages and snippets from those web pages containing material about her of an alleged defamatory nature. For the purposes of this application it is not necessary to explain in any detail the content of that material. It is sufficient to say that the impugned material attacks the plaintiff’s personal and professional probity and suggests that she is or may be mentally unstable.
On or about 12 September 2009 the plaintiff, by email, notified both Google Inc and Google Australia of the impugned URL’s and their associated snippets and requested their removal from the index. Between then and early December 2010 the plaintiff sent a further seven emails or letters to Google Inc and a further six emails or letters to Google Australia in which she repeated her requests. Google Inc informed the plaintiff by emails dated 7 October 2009 and 16 December 2010 that it would not accede to her requests.
On 16 February 2011 the plaintiff instituted proceedings in defamation against both defendants claiming damages in respect of the publication of the impugned URL links and snippets on Google domains and during the period 12 September 2009 and 13 October 2010.
By e-mails dated 17 March 2011 and 24 March 2011 the plaintiff’s solicitors requested that the defendant remove the relevant URL links and snippets from the Google Search index. The requests were declined.
It should be observed that the parties are in dispute over the adequacy of the particulars of the defamatory imputations asserted by the plaintiff in her statement of claim. An application by the defendants for further and better particulars has been set down for hearing before a Master. The defendants contend that pending resolution of that issue they are not in a position to file defences.
Application for interlocutory injunction
On 24 May 2011 the plaintiff filed her application for injunctive relief. In essence the plaintiff applies for the following orders:
·That until further order the defendants remove from any Google domains accessible in Australia (including the domains and the impugned URL links and associated snippets.
·That the defendants remove any new URL links, and associated snippets, that are published on the Google domains within three days of being notified of their existence by the plaintiff or her legal advisers.
The grounds for the application advanced by the plaintiff in her affidavit may be summarised as follows:
·Since the commencement of proceedings the defendants have continued to publish the material about which the plaintiff complains on and and on a further 136 domains operated by Google Inc worldwide.
·Since her employment with SA Health ended on 10 August 2010 the plaintiff has been unable to find work and fears that potential employers may be deterred from employing her if they undertake an internet search of her name using Google Search and discover the material.
·The stress caused by the ongoing publication of the material exacerbates medical conditions from which she suffers; namely, clinical depression, severe androgyny and progesterone deficiency (which causes a range of symptoms including physical exhaustion) and alopecia (which can cause her hair to fall out when placed under stress).
·The humiliation she has suffered has caused her to become socially withdrawn.
·The plaintiff would be devastated if her elderly parents, who are currently unaware of the impugned material, were to discover its existence and content.
Legal Principles
In Australian Broadcasting Corporation v O’Neill[2] the High Court held that the issues to be considered by a court in determining applications for injunctive relief were those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd[3]:
The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be entitled to relief…The second inquiry…is whether the inconvenience …or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the plaintiff would suffer if an injunction were granted.
[2] (2006) 227 CLR 57.
[3] (1968) 118 CLR 618 at 622.
Gummow and Hayne JJ[4] explained (at 82) that by using the phrase “prima facie case’ the court in Beecham did not mean that the plaintiff had to show that it is more probable than not than not that at the trial the plaintiff will succeed. It is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial.
[4] (2006) 227 CLR 57.
In Jakudo Pty Ltd v South Australian Telecasters Ltd[5] Doyle CJ emphasised that in determining applications for interlocutory injunctions in defamation proceedings attention must be paid to the importance of the public interest in free speech. His Honour said:[6]
The grant of an interlocutory injunction, in my opinion, involves the application of equitable principles that are the same in all cases. The grant of interlocutory injunctions in respect of defamatory material is not the subject of principles unique to that area of the law. In all cases the ultimate issue is whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted, and has shown that the balance of convenience favours the granting of an injunction: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153, per Mason ACJ. These are the principles to be applied in the present case. In that respect I respectfully agree with and adopt what was said by Ormiston J and, on appeal, the Full Court of the Supreme Court of Victoria in National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 and by Hunt J in Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153.
The reason why interlocutory injunctions are rarely granted in respect of defamatory material is, as Ormiston J pointed out in the case just cited, that the courts have recognised the substantial public interest in the free discussion of matters of public or general interest. That means that when the balance of convenience comes to be weighed, the public interest in free discussion of matters of public or general interest weighs heavily against the grant of an injunction. Particularly will this be so if the defendant puts forward material which shows that there are reasonable grounds to think that a defence of justification may succeed. In that respect I accept what was said by Walsh J in his frequently cited judgment in Stocker v McElhinney (No 2) (1961) 79 WN (NSW) 541. When the real issue is not whether the words are defamatory, but that of justification, the plaintiff will have shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief. But, if there are reasonable grounds to suppose that a defence of justification may succeed that, coupled with the substantial public interest in the free discussion of matters of public and general interest, will usually mean that the balance of convenience is in favour of the refusal of a grant of an injunction. Of course, that assures that damages will be an adequate remedy.
[5] (1997) 69 SASR 440.
[6] (1997) 69 SASR 440 at 442-443.
These remarks were referred to with approval in Australian Broadcasting Corporation v O’Neill in the joint judgment of Gleeson CJ and Brennan J:[7]
As Doyle CJ said in the last-mentioned case [Jakudo] in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be followed. In the context of a defamation case, the application of those organising principles will require particular attention to the considerations which courts have identified as dictating caution. Foremost among those considerations is the public interest in free speech.
(Footnotes omitted)
Consideration
[7] (2006) 227 CLR 57 at [19].
Google Australia
The plaintiff’s application for injunctive relief against Google Australia must fail if for no other reason than there is no evidence Google Australia has the ability to remove URL links and snippets from the Google Search index.
The plaintiff’s case in this regard is based upon a weak inference that she seeks to draw from the following circumstances. After the plaintiff’s proceedings were served on Google Australia, on or about 18 February 2011, but before they served on Google Inc, six of the URL links that were the subject of her claim were removed from the domain On 29 May 2011 a Google search conducted by or on behalf of the plaintiff on using the keywords “Dr Janice Duffy” provided a list of URL links at the bottom of which appeared the words “In response to a legal request to Google, we have removed 6 result(s) from this page”.
As I understand the plaintiff’s argument it is suggested that it can be inferred from the removal of the URL links prior to Google Inc being served that Google Australia had some control over their removal. The argument is entirely speculative. Google Inc may have decided, as a result of earlier requests from the plaintiff, to remove the URL links without any input from Google Australia. It may be the case that Google Australia contacted Google Inc and requested the removal. Even then it does not follow that it has the legal capability to conduct such removals whether acting alone or as an accessory to Google Inc. There are, of course, other possible explanations for the removal of the URL’s upon which the plaintiff relies.
A court will not make an injunctive order which cannot be complied with: Active Leisure Sports Pty Ltd v Sportsmans Australia Limited [1991] 1Qd R 301 at 308. There is no evidence before me that supports the plaintiff’s assertion that Google Australia exercises some relevant legal control over Google Search and would, therefore, be able to meet the terms of the proposed orders. It is not sufficient for the plaintiff merely to assert in her statement of claim that Google Australia in some way shares control of Google search with Google Inc. The assertion has been contradicted by the contents of Mr Stewart’s sworn affidavit and documents exhibited to it.
Accordingly, the application for injunctive relief against Google Australia must be dismissed.
Google Inc
Serious issue to be tried
As earlier stated the defendants have yet to file their defences but have indicated through their solicitor’s affidavit that may argue that the plaintiff’s claim is not maintainable under s37 of the Limitation of Actions Act 1936. They may also rely upon defences of justification, qualified privilege, honest opinion, innocent dissemination and triviality.
It is not possible to assess the merits of such possible defences on the material before me. While the defendants may ultimately succeed on one or more of those grounds I am of the view that there is a serious question to be tried.
In reaching this conclusion I have not overlooked Google Inc’s contention that it is not a ‘publisher’ of Google Search results. Mr Swan, counsel for the defendants, argued that by providing a search engine for customers Google Inc is a mere facilitator, rather than a publisher, in respect of the publication of search results on its domains. Put another way, because Google search results are produced by automated search systems, without human input, Google Inc cannot be characterised as a publisher of such results. It does not cause or authorise particular URL links and snippets to appear on computer screens.
This point has not been decided by any court in this country but has been determined in the United Kingdom. In Metropolitan International Schools Ltd v Designtechnia Corp [2010] 3 All ER 548 Eady J held Google Inc was not a publisher of Google Search results for the reasons contended for by Google Inc in the present case. Mr Swan argued that I should follow the decision in Metropolitan International Schools and find that Google Inc did not publish the URL links and snippets about which the plaintiff complains and, without the need for further consideration of the matter, dismiss the application for injunctive relief.

It is well established that a court has a discretion not to decide a question of law on an application for an interlocutory injunction though determination of the question might be fatal to the application: Remm Construction v Allco Newsteel (1990) 53 SASR 471. I consider the reasoning of Eady J to be persuasive but I have not had the benefit of full argument on this point and it is one of such importance that it should, in my opinion, be determined by the trial judge. In any event, it is unnecessary to decide the point because the application for injunctive relief must, in my view, be dismissed for the reasons expressed below.
Balance of convenience
In my opinion, a weighing of the balance of convenience clearly favours rejection of the plaintiff’s application having regard to the following factors.
First, the public interest in free discussion of matters over the internet weighs against the grant.
Second, there is no sound basis for apprehending that if the plaintiff succeeds at trial that an award of damages would not be an adequate remedy for the stress and humiliation about which she complains or for any financial loss she might sustain as a result of not being able to secure employment.
Third, even if the application were granted it would not necessarily prevent continuing injury to the plaintiff. The allegedly defamatory material remains on host web sites. People searching the internet can locate those web sites using other internet search engines such as Yahoo and Bing. Counsel for the plaintiff, Mr Heywood-Smith QC, submitted that Google is by far the most popular search engine. That may be so but the fact remains that an injunction will not necessarily stop publications of the alleged defamatory remarks. There is also, in my opinion, considerable force in Mr Swan’s submission that it would be inequitable to require Google Inc to remove material from its index database in circumstances where its competitors are free to publish the same material.
Fourth there is no element of urgency about the plaintiff’s application. So much can be inferred from the delay in the plaintiff instituting her action and the further delay in her filing the application for injunctive relief.
As earlier noted the plaintiff asserts that she first became aware that Google searches produced URL links to defamatory web pages in about February 2009. However, it is evident that the plaintiff was previously aware of the existence of the material on web sites, in particular
In the plaintiff’s statement of claim there are five annexures (Nos.9-14) of downloads from One of the annexures (No.12) also contains a communication from the plaintiff, posted on the website on 17 August 2008, in which she complains about two people, apparently residents in the United States, making defamatory comments about her. She concludes by saying:
BUT KNOW THIS! I AM DEADLY SERIOUS! I AM TAKING BOTH OF YOU TO COURT FOR DEFAMATION. IT IS GOING TO BE EXPENSIVE FOR YOU BOTH AS YOU WILL BE REQUIRED BY US LAW TO FLY YOURSELF AND AN ATTORNEY OUT TO AUSTRALAI ATTEND COURT.
Furthermore, the plaintiff in her affidavit [14] states:
The defamatory material published on the Google domains is very humiliating to me. Since I became aware of the defamation, I stopped socialising because I fear that I will meet people who will do a search name for me and locate the defamatory material (which would increase my humiliation). This has already happened to me, when an employee at my former workplace found the defamatory material and spread it around to my colleagues, in between December 2008 and February 2009.
The plaintiff has not told me when she first became aware of the existence of websites hosting defamatory remarks. But it is apparent, from the material outlined above, that she was aware, at least as early as 17 August 2008, of one such site and that material from that site and/or another site or sites had been discovered by one of her work colleagues sometime between December 2008 and the day upon which she found out about the content of Google searches. Despite her awareness of the existence of such material, no attempt was made then nor since to institute proceedings against web sites or authors of publications appearing on those sites.
Furthermore, after the plaintiff found out about the content of Google Search results in February 2009 she failed to take any action in respect of those results until she instructed her solicitor some eighteen months later in October 2010. After she consulted her solicitor the proceedings in defamation were not instituted until four months later on 16 February 2011. A further three months elapsed before the application for injunctive relief was filed on 24 May 2011.
The plaintiff’s affidavit offers the following explanation for her failure to take earlier action:
22.     I did not take any action with respect to this matter earlier, as:
22.1   I was not able to instruct solicitors until October 2010, as:
22.1.1        It was not until after I received a payout from the South Australian Department of Health in September 2010 that I could do so;
22.1.2 I was suffering exacerbated symptoms associated with my physical and psychological conditions referred to in paragraph 17 herein (including physical exhaustion and lack of motivation) that prevented me from instructing solicitors;
22.2   Prior to instructing solicitors, I was not aware that it was possible to apply for an interim injunction ordering the removal of the defamatory material (although I did request on numerous occasions that the Defendants remove the defamatory material…, and hoped that the Defendants would do so voluntarily, without the need for me to instruct solicitors);
22.3   After I instructed my solicitors in October 2010, it took them some time for them to review the matter and the (sic) prepare Court proceedings. My hope was that once Court proceedings were issued, the Defendants would remove the defamatory material of their own accord. After proceedings were served on the Second Defendant… some of the defamatory material was removed from the domain I hoped that the Defendants would continue to remove the remaining defamatory material thereafter. However, as it has become apparent that the Defendants will not voluntarily remove the remaining defamatory material, I have now instructed my solicitors to seek an injunction for its removal.
I am not impressed by these explanations. The plaintiff says that she found it necessary to wait for a pay out before she consulted solicitors. Does that mean that she would never have taken action if her employment had not ended in late August 2010? More significantly, after the plaintiff had obtained funds, and found the motivation to see her solicitors, some eight months elapsed before the plaintiff filed for injunctive relief though she and her solicitors were well aware that Google Inc had previously declined to remove the material from the index despite numerous requests from the plaintiff. Even after further unsuccessful requests were made by the plaintiff’s solicitors on 17 and 24 March 2011 two months were allowed to pass before the application for interlocutory relief was filed.
The lack of any element of urgency is also reflected in the grounds upon which the plaintiff seeks an injunction. The feelings of stress and humiliation about which she complains presumably have been with her since she first discovered the existence of the defamatory material on the web in 2008, possibly earlier. The plaintiff fears that her elderly parents might discover the existence of the defamatory material but that has been a risk since the material was first posted on the internet. The plaintiff also says that she is currently looking for work and that a potential employer might discover the material when conducting a Google search of her name. But that has been the case since August 2010. Furthermore, as earlier pointed out, a grant of the injunction sought would not necessarily prevent a prospective employer locating the material on the internet. The material could be found by an employer using another internet search engine such as Bing or Yahoo. Also, it seems to me that it may well be in an employer’s interest to locate the material if the remarks about the plaintiff are true.
Fifth, the breadth of the orders sought by the plaintiff cannot be countenanced. The plaintiff seeks an order that the defendants remove URL links and snippets from any Google domains accessible in Australia. If granted, that order would require removal of material from Google domains in other countries regardless of whether the plaintiff has a reputation or cause of action in those countries. The other order sought requires the removal of any new URL links and snippets that appear on Google domains within three days of the defendants being notified of the existence of that material by the plaintiff or her legal advisers. The effect of the proposed order is that any new material would have to be removed though the plaintiff might not have a cause of action in respect of that material.
For these reasons the application against Google Inc must be dismissed.
I earlier indicated that the application for an injunction against Google Australia had to be dismissed because there was no evidence that it exercised any form of legal control over Google Search. I should make it plain that even if such evidence had been available I would have rejected the application for an injunction against Google Australia for the same reasons that I have dismissed the application against Google Inc.
Orders
The application for an injunction against the first and second defendants is dismissed.
I will hear the parties as to costs.