Judgment of the Honourable Auxiliary Justice Tilmouth
DEFAMATION - ACTIONS FOR DEFAMATION - PARTICULARS - OF STATEMENT OF CLAIM OR DECLARATION - PUBLICATION
DEFAMATION - ACTIONS FOR DEFAMATION - PLEADING - SOUTH AUSTRALIA
DEFAMATION - ACTIONS FOR DEFAMATION - TRIAL - FUNCTIONS OF JUDGE AND JURY - IN GENERAL
DEFAMATION - OTHER DEFENCES - TRIVIALITY
DEFAMATION - OTHER DEFENCES - MISCELLANEOUS DEFENCES
DEFAMATION - PUBLICATION - GENERALLY - INTERNET PUBLICATIONS
The applicant has brought an action for defamation against the respondent. The applicant alleges that the respondent published material defamatory of her by way of providing as search results on google.com and google.com.au two URLs to a third-party website, referred to as RoR1 and RoR2, and three associated search result snippets.
The respondent submits that the applicant did not make out all the elements of defamation as there was insufficient proof of publication and because the snippets, when considered in the context of the wider search results, did not amount of defamation. The respondent further relies on the defence of innocent dissemination, arguing that the respondent was not required to remove the URLs because the applicant did not provide proper notice. The respondent further contends that the matter is trivial.
Held:
1.Both RoR1 and RoR2, as well as all three snippets, on google.com.au were defamatory and were published by inference to unknown third parties.
2.There was no sufficient evidence that RoR1 or RoR2 were accessed on google.com in Australia and hence it cannot be accepted on the balance of probabilities that they were published in Australia.
3.Google is proven to have participated in the communication of RoR1 and RoR2 in Australia on google.com.au so as to render it liable as a secondary publisher.
4.The defences of innocent dissemination and triviality fail.
5.The parties are to be heard on the issue of consequential damages, before questions of costs arise.
[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 LLC [2023] SASC 13
Case
[2023] SASC 13
Decision Date
CaseChat Overview and Summary
In Duffy v Google LLC, Dr. Duffy, an Australian resident, brought a defamation action against Google LLC, an American company, over defamatory content appearing in search results on Google's Australian domain, google.com.au. The case proceeded through the District Court of South Australia and was later transferred to the Supreme Court of South Australia. Dr. Duffy claimed that search results linking to defamatory posts on the RipoffReport.com website, which were accessible in Australia, defamed her.
The primary legal issues in the case were whether Google's conduct constituted publication of the defamatory content for the purposes of defamation law and whether Google could be held liable as a secondary publisher in Australia. Additionally, the court had to consider the defences of innocent dissemination and triviality raised by Google.
The court ruled that while Google's search engine results did not themselves constitute defamatory publication, Google's participation in making the content accessible in Australia rendered it liable as a secondary publisher. The court found that Dr. Duffy had failed to provide sufficient evidence that the allegedly defamatory content was accessed in Australia, thereby negating the claim that the content was published in Australia. The court also rejected Google's defences of innocent dissemination and triviality, holding that Google's selective enforcement of its content removal policies and its failure to act on Dr. Duffy's requests to remove the content did not absolve it of liability.
The court's decision underscores the nuanced application of defamation law to internet publications, particularly in cross-jurisdictional contexts. It highlights the importance of demonstrating that defamatory content is accessible within the jurisdiction in which the action is brought to establish publication. The case also reinforces the principle that internet search engines can be held liable for defamation when they contribute to the dissemination of defamatory content in a particular jurisdiction.
Orders
Orders of the court
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Background
Background to the litigation
Google is a public company incorporated under the laws of the State of Delaware in the United States of America. It is the owner and operator of a global internet business, including internet search engines. Before October 2017 it was the owner and operator of many websites with Country specific domains. It owned and operated google.com.au in Australia and google.com in the United States. Google then transitioned to the use of ‘domainless’ Country editions so that, for example, users detected as within Australia were by default served with the Australian edition of the Google search engine even if a browser address bar displayed google.com.[3] On these sites it hosts a search engine tool available to the public at large for searching the World Wide Web.[3] Exhibit A1A, [62]-[65]; Exhibit R7A, [9]-[10]; T687.9-22, T692.23-31.Background in brief At some time in 2006 Dr Duffy began searching the website Kasamba which offered counselling as well as spiritual advice. By mid-2007 she began to find a large number of complaints about this website posted on another website RipoffReport.com. Ripoff Report is owned by a US-based entity totally unrelated to Google. Its site operates as an interactive forum for users to create and post online mostly derisory “reports” and to allow users to add comments to such reports. Between mid-2007 and early 2009 she posted either 14 or 16 complaints on RipoffReport.com.[4] According to her, those posts drew some support and some criticism, so she formed a support group with others “vulnerable” to defamatory posts.[5] As time went on, she became aware of posts aiming to discredit her and attempting to discourage members of the support group. She further discovered that there were adverse posts about her and her support group on Ripoff Report, appearing in search engine results when searching her name. [4] T220.13-221.23; Closing Written Submission of Applicant, [7]. [5] T221.13-222.8. Between 7 and 12 September 2009, she communicated with Google Australia Pty Ltd, Google Inc, removals@google.com, Google removals team, and the Google legal team in an attempt to prevent Ripoff Reports appearing in searches for her name on Google’s search engine.[6] On 14 September 2009, Google informed Dr Duffy by email that it required her to identify which Country‑specific site was involved, what search terms were used in addition to the precise uniform resource locator (“URL”) complained of before it would consider removal.[7] [6] Master Chronology, pp 1-2. [7] Exhibit R1. Over the course of further communications during 2009 and 2010, Google consistently refused to remove any URLs at the request of Dr Duffy. In the meantime, Dr Duffy issued proceedings in her first action on 16 February 2011.[8] Between 14 April 2011 and 3 December 2012, there was a series of correspondence between counsel for Dr Duffy and counsel for Google concerning removals.[9] Google eventually removed a number of offending Ripoff Report URLs relating to Dr Duffy from appearing in search results obtained on google.com.au between 7 March and 29 November 2011 as follows:·five on 7 March 2011; ·16 on 31 May 2011; ·14 on 2 November 2011; ·15 around 14 November 2011; and ·three on 29 November 2011.[10]Thereafter it appears that Dr Duffy took no further steps to secure blocking by Google between 3 December 2012 and 28 April 2014.[8] In the District Court of South Australia, later transferred to the Supreme Court of South Australia, hereafter mostly referred to as the ‘first action’. [9] Exhibit R1.[10] Exhibit R7B.
Evidence
Evidence Before The Court
The following propositions of relevance to this case were recently authoritatively laid down by the High Court in Google LLC v Defteros:[79]·Internet search results including hyperlinks to defamatory material which are not themselves defamatory do not fall within the purview of publication because the hyperlink does not itself communicate anything and because following the link requires an act by a third party to access the hyperlink;[80]·The fact of Google’s ability to remove a webpage identified by its URL from search results, that it operates for profit and whether it received notice are not relevant to the issue of whether its conduct amounted to publication for the purposes of defamation law;[81] and·Notice of the existence of defamatory material may be relevant to knowledge in the defence of innocent dissemination.[82][79] (2022) 403 ALR 434.[80] At [41]-[43], [53] (Kiefel CJ and Gleeson J), [59], [72]-[74] (Gageler J). [81] At [12], [54] (Kiefel CJ and Gleeson J), [59], [62]-[64], [66] (Gageler J).[82] At [55] (Kiefel CJ and Gleeson J).Direct evidence The direct evidence of publication led or given by Dr Duffy was quite thin and often inadmissible. The evidence such as it is, is only allowed to the extent that follows. At first Dr Duffy called Mr Roberts purportedly as a person in South Australia who used a web browser to access Google sites, however she withdrew his evidence during the trial, so this came to nought.[83][83] T544.1-34. During the interlocutory proceedings seeking permission to amend her statement of claim and to proceed with this action, Blue J received oral evidence from Michelle De Veau who undertook searches using Google in relation to Dr Duffy as relevant to proof of publication.[84] It was first proposed by Dr Duffy to use in this trial both Ms De Veau’s oral evidence before Blue J and her sworn affidavit tendered in the interlocutory process. Dr Duffy mistakenly assumed that these were automatically admitted in this trial. This assumption is, of course, not the case and it was opposed by Google. Before that could occur, it was necessary to seek admission under the business records provisions of the Evidence Act1929 (SA). None of those provisions apply to the circumstances. The same applies to Mr Barrow to whom Dr Duffy referred at times, but whom she did not call, so any secondary evidence of searches conducted by him is simply inadmissible.[85] The same considerations equally apply to the witness Mr Roberts with respect to the tender of his affidavit filed in the interlocutory proceedings concerning publication.[86] [84] Duffy v Google LLC [2019] SASC 157, [17].[85] T471.14-474.14.[86] ATrB V6, p 1103. References to the evidence of Ms De Veau previously given in the summary judgment hearing are, as explained above, simply inadmissible in this proceeding in the absence of calling her, or in the absence of proof that she was “unfit … to attend as a witness … and it is not reasonably practicable to secure [her] attendance”.[87] By the same token it is inappropriate to draw any inference from the failure to call her during this trial to the effect that she would not have assisted Dr Duffy’s case, given her intimation that she did not want to give evidence and that Dr Duffy was not directly in communication with her.[88] [87] Evidence Act 1929 (SA) s 34C(1a).[88] Closing Written Submission of Applicant, [60].
Decision
Reasons for decision
Dr Duffy was equally critical of Google’s selective use of United States law as a justification for failing to remove defamatory content and its stance that it was not required to remove defamatory material from google.com despite it being accessible in Australia, under the guise of freedom of speech protections. She evidenced the removal in 2013 of defamatory hyperlinks and snippets posted on RipoffReport.com about a man who lived and worked in Melbourne from both google.com and google.com.au.[207] It transpires that this came about under valid US court orders for removal, so this provides no basis for the proposition that Australian courts have the power to order the removal of webpages on google.com, absent the presence of jurisdiction accruing from defamatory material viewed in Australia.[208] Nor does it present any evidence of the capacity of Google to remove material, for it is accepted that it can. The question is whether it must by reason of the operation of domestic law in the jurisdiction in which defamatory material is published. [207] Closing Written Submission of Applicant, [55]-[61].[208] T435.6-436.13; Respondent’s closing submission, [117].Conclusion In summary, both RoR1 and RoR2, as well as all three snippets on google.com.au were defamatory and were published by inference to unknown third parties. There was no sufficient evidence that RoR1 or RoR2 were accessed on google.com in Australia and hence it cannot be accepted on the balance of probabilities that they were published in Australia. Google is proven to have participated in the communication of both RoR1 and RoR2 in Australia on google.com.au so as to render it liable as a secondary publisher. The defences of innocent dissemination and triviality fail. The parties are to be heard on the issue of consequential damages, before questions of costs arise.