Duffy v Google Inc (No 3)

In Duffy v Google Inc (No 3), Dr Janice Duffy, the plaintiff, brought an action for defamation against Google Inc, the defendant. The dispute centred around the publication of certain defamatory materials on Google's Australian website, including results from the Google search engine, Google's autocomplete function, and links to external websites. The matter was heard in the Federal Court of Australia.

The primary legal issues the court had to decide included whether Google was a publisher of the defamatory materials, the extent of publication to search engine users, the defamatory imputations conveyed by the materials, and whether any published content was justified. A secondary issue was the appropriate allocation of costs between the parties under the ordinary principle of costs following the event and the statutory provisions in the Defamation Act 2005 (Cth).

The court found that Dr Duffy was successful on the majority of the liability issues, including that Google was a publisher, the extent of publication to search engine users, and the defamatory imputations. However, Dr Duffy was unsuccessful on certain imputations and the justification defence in relation to some content. The court determined that Dr Duffy unreasonably failed to accept Google's offer to settle on 10 November 2015, which led to an order for indemnity costs. The court emphasised that Dr Duffy's partial success did not entitle her to avoid the consequences of her unreasonable conduct in not accepting the offer.

The final orders included a requirement for Dr Duffy to pay Google's costs of the action on a party/party basis from the date of the reasons for judgment on liability. The court also noted the potential impact of section 38(2) of the Defamation Act, which provides for indemnity costs in cases of unreasonable failure to accept a settlement offer.