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…

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.

Continue reading Duffy v Google Inc

Details

AGLC: Duffy v Google Inc [2011] SADC 178
Case: [2011] SADC 178
Decision Date: 15 November 2011

CaseChat Overview and Summary

The plaintiff, Duffy, commenced proceedings against the first and second defendants, Google Inc and Google Australia, for defamation. The first defendant is a United States company and the second defendant is its Australian subsidiary, over which it exercises complete control. Google Inc is an internet search engine provider and Duffy sought injunctive relief in relation to certain material allegedly defamatory of him, which appeared on Google's websites. Duffy's application for an injunction against Google Australia was dismissed outright, as it did not have control over the publication of the material. The application against Google Inc was also dismissed, following consideration of the balance of convenience.

The court was required to determine whether Duffy was entitled to an injunction against Google Inc to prevent the publication of the allegedly defamatory material. This involved weighing the respective rights of the parties and the balance of convenience, which required a consideration of the harm that would be suffered by each party if the injunction were or were not granted. The court had to determine whether Duffy's right to reputation and privacy outweighed Google's right to freedom of expression and the public interest in accessing information.

The court concluded that an injunction should not be granted against Google Inc. The court found that Duffy's right to reputation was not absolute and had to be balanced against Google's right to freedom of expression and the public interest in accessing information. The court also found that the balance of convenience favoured Google, as the granting of an injunction would prevent the public from accessing information that was in the public interest. The court held that the harm that would be suffered by Google and the public if the injunction were granted outweighed the harm that would be suffered by Duffy if the injunction were not granted. The court further found that the availability of other remedies, such as damages and an apology, meant that an injunction was not necessary to protect Duffy's reputation.

Orders