SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
DUFFY v GOOGLE LLC
[2019] SASC 157
Judgment of The Honourable Justice Blue
6 September 2019
DEFAMATION - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - AMENDMENT
The plaintiff has instituted a second action for defamation against the defendant. The plaintiff seeks permission to the extent necessary to amend her statement of claim and to proceed with the action pursuant to section 21 of the Defamation Act 2005 (SA). She also seeks an interlocutory injunction restraining the defendant from publishing matters originating from the Ripoff Report website which contain any of 13 imputations. The defendant seeks summary dismissal of the action.
Held:
1. The defendant has failed to establish the criteria for summary judgment in its favour (at [111]).
2. Permission to proceed with the action (per the proposed amended statement of claim) is granted (at [143]).
3. Permission to amend the statement of claim is granted (at [118], [151]).
4. The plaintiff’s application for interlocutory injunction is dismissed (at [150]).
5. The defendant’s application for summary judgment is dismissed (at [153]).
Defamation Act 2005 (SA) s 21; Defamation Act 2005 (NSW) s 23, referred to.
Carolan v Fairfax Media Publications Pty Limited (No 7) [2017] NSWSC 351; Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90; Hockey v Fairfax Media Publications Pty Limited (No 2) (2015) 237 FCR 127; Phillips v Robab Pty Limited [2014] NSWSC 1520; Rush v Nationwide News Pty Limited (No 9) [2019] FCA 1383; Trkulja v Google LLC (2018) 263 CLR 149, discussed.
Bradman v Allens Arthur Robinson [2009] SASC 80; Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; Collins v Djunaedi [2016] SASCFC 48; Jennings v Police [2019] SASCFC 93; Proude v Visic (No 4) (2013) 117 SASR 560; Spencer v Commonwealth of Australia (2010) 241 CLR 118, considered.
DUFFY v GOOGLE LLC
[2019] SASC 157BLUE J:
Dr Janice Duffy has instituted this action (the second action) for defamation against Google LLC (Google). Dr Duffy applies by interlocutory application for permission, to the extent necessary, to amend her statement of claim and to proceed with the action pursuant to section 21 of the Defamation Act 2005 (SA) (the Act). Google applies by interlocutory application for summary dismissal of the action. Dr Duffy seeks an interlocutory injunction restraining Google from publishing matters originating from the Ripoff Report website which contain any of 13 defamatory imputations. I refer to the four applications by the parties as the interlocutory applications.
Background
In February 2011 Dr Duffy instituted an action (the first action) for defamation against Google. Dr Duffy alleged, amongst other things, that Google had published two reports on the Ripoff Report website ( as follows:
1Report #295712 by Mary anne of Riverton Wyoming originally dated 30 December 2007 (with updates and comments) entitled “Report: Janice Duffy – Psychic Stalker! Psychics Beware of Australian Psychic Stalker!” (the first original ROR report) which had the following universal resource locator (URL) (the first original ROR URL):
#295925 by Mary anne of Riverton Wyoming originally dated 31 December 2007 (with subsequent updates and comments) entitled “Report: Dr. Janice Duffy” (the second original ROR report) which had the following URL (the second original ROR URL):
>
Dr Duffy also alleged that Google published various paragraphs returned as search results on searches for iterations of her name, including:
1the following paragraph (the first original search result) containing a hyperlink to the first original ROR report:
Janice Duffy – Psychic Stalker! Psychics Beware Of Australian…
30 Dec 2007 … Janice Duffy – Psychic Stalker! Psychics Beware of Australian Psychic Stalker! Janice Duffy Stalked me on the computer for several months.
Cached
2the following paragraph (the second original search result) containing a hyperlink to the second original ROR report:
Ripoff Report Dr. Janice Duffy Stop the Australian Psychic …
Dr. Janice Duffy Stop the Australian Psychic Stalker Dr. Janice Duffy!! Adelaide, South Australia Adelaide, South Australia.Cached
I heard the trial of the first action in June and August 2015. In October 2015 I published reasons for judgment[1] in which I concluded that Dr Duffy had proved that Google published, amongst other things, the first and second original ROR reports and the first and second original search results. I concluded that each contained various defamatory imputations and that various defences relied on by Google generally failed.
In December 2015 I assessed damages at $100,000[2] and in January 2016 I awarded judgment in favour of Dr Duffy against Google for $115,000 inclusive of interest and made orders relating to the costs of action.[3]
Google appealed to the Full Court against the judgment. The appeal was heard in May 2016 and judgment was reserved.
In August 2016 Dr Duffy applied in the first action for permission, to the extent necessary, pursuant to section 21 of the Act to bring this action. It was determined that Dr Duffy could issue and serve the proceeding but there would be a stay of any further steps in the action pending the Full Court’s decision on the appeal in the first action. The question whether permission to proceed should be granted pursuant to section 21 would, if necessary, be determined on its merits (with the onus lying on Dr Duffy), notwithstanding that Dr Duffy would have issued and served a proceeding in the meantime.[4]
[4] Permission can be granted under section 21 nunc pro tunc: Carey v Australian Broadcasting Corporation [2012] NSWCA 176 at [92]-[94] per McColl JA and [126] per Sackville AJA who were considering the effectively identically worded section 23 of the Defamation Act 2005 (NSW).
In October 2016 Dr Duffy instituted this, the second, action by filing a summons supported by a statement of claim against Google. Dr Duffy pleaded that since 6 May 2014 Google published the following paragraphs returned as search results on searches for iterations of her name on the google.com and google.com.au websites (the Google Sites):
1the following paragraph (the first new search result) containing a hyperlink to the first new ROR report (referred to below):
Janice Duffy – Psychic Stalker! Psychics Beware Of Australian
[5]
Jan 16, 2014 – Psychics Beware of Australian Psychic Stalker! Janice Duffy Stalked me on the computer for several months. She uses the name Janice and …
2the following paragraph (the second new search result) containing a hyperlink to the second new ROR report (referred to below):
Ripoff Report / Dr Janice Duffy Complaint Review …[6]
6, 2008 – Dr. Janice Duffy Complaint Review: Dr. Janice Duffy Stop the Australian Psychic Stalker Dr. Janice Duffy!! Adelaide, South Australia Adelaide, …and that the publication of these paragraphs was the same on both Google sites, except that publication of the first new search result on the google.com.au website ceased on 6 November 2015.
[5] At the hearing of the interlocutory applications, Dr Duffy tendered as exhibits to her first affidavit examples of the first new search result. That evidence shows that in fact the elided URL contained in the first new search result contained the additional characters “Janice-Duffy” before the characters “/Janice-Duffy-Psychic-Stalker-P” and Dr Duffy erroneously reproduced the elided URL in her statement of claim. See further at [61] below.
[6] At the hearing of the interlocutory applications, Dr Duffy tendered as exhibits to her first affidavit examples of the second new search result. That evidence shows that in fact there is a full stop in the heading after “Dr” and Dr Duffy erroneously reproduced the search result in her statement of claim.
[7] The evidence referred to in the previous footnote shows that in fact the elided URL contained in the second new search result contained the additional characters “report” after the characters “ and ellipses “…” after “Aust” and Dr Duffy erroneously reproduced the elided URL in her statement of claim. See further at [83] below.
Dr Duffy also pleaded that Google published on the Google sites, via hyperlinks in the first and second new search results respectively, two reports on the Ripoff Report website. Evidence tendered at the hearing of the interlocutory applications establishes that these reports can be described as follows:
1Report #295712 by Mary anne of Riverton, Wyoming originally dated 30 December 2007 (with updates and comments up to 16 January 2014) entitled “Complaint Review: Janice Duffy – Psychic Stalker! Psychics Beware of Australian Psychic Stalker!” (the first new ROR report) which had the following URL (the first new ROR URL):
#295925 by Mary anne of Riverton Wyoming originally dated 31 December 2007 (with subsequent updates and comments to 6 December 2008) entitled “Dr. Janice Duffy Stop the Australian Psychic Stalker Dr. Janice Duffy!! Adelaide, South Australia Adelaide, South Australia” (the second new ROR report) which had the following URL (the second new ROR URL):
>
In November 2016 I made an order by consent staying any further steps in this action beyond service of the proceeding pending the Full Court’s decision on the appeal against my judgment in the first action.
In October 2017 the Full Court dismissed the appeal against my judgment in the first action.[8]
In December 2017 Dr Duffy filed an interlocutory application seeking permission, to the extent necessary, to file an amended statement of claim and to proceed with the action pursuant to section 21 of the Act. Dr Duffy also sought an interlocutory injunction restraining Google from publishing on the Google Sites any matter originating from the Ripoff Report website which contains one or more of 13 specified imputations being imputations alleged by Dr Duffy to be conveyed by the first and second new ROR reports.[9]
[9] The interlocutory application also sought an interlocutory injunction requiring Google to remove from the Google Sites the first and second new ROR URLs. However, Dr Duffy subsequently did not pursue that application.
The proposed amended statement of claim adds additional pleas that:
1since at least 13 May 2017 Google published the following paragraph (the third new search result) returned as a search result on searches for iterations of Dr Duffy’s name on the Google Sites containing a hyperlink to the first new ROR report via the third new ROR URL (referred to below):
Ripoff Report | Janice Duffy – Psychic Stalker! Psychics Beware Of …
Duffy – Psychic Stalker! Psychics Beware Of Australian Psychic Stalker! Janice Duffy Stalked me on the computer for several months. She uses the name Janice and other phoney names and keeps on sending you her name over and over again. I know of her because she stalked me on the psychic website Kasamba …2since at least 8 December 2017 Google published the following paragraph (the fourth new search result) returned as a search result on searches for iterations of Dr Duffy’s name on the Google Sites containing a hyperlink to the second new ROR report via the fourth new ROR URL (referred to below):
Ripoff Report | Dr. Janice Duffy Complaint Review Nationwide
Janice Duffy P.H. D has been stalking psychics for a long time now and she must be stopped. Her harassing emails have caused many psychics to go into hiding because of her blackmailing and forcing psychics to respond to her emails. She is from Adelaide, South Australia and has made numerous rip off reports and …The proposed amended statement of claim also adds pleas that:
1since at least 13 May 2017, Google published, via the hyperlink in the third new search result on the Google Sites, the first new ROR report with the following URL (the third new ROR URL):
at least 8 December 2017, Google published, via the hyperlink in the fourth new search result on the Google Sites, the second new ROR report with the following URL (the fourth new ROR URL):
>
Leaving aside case (upper or lower), the only difference between the first and third new ROR URLs is that the letter “r” has been replaced by the word “reports” and the same applies to the difference between the second and fourth new ROR URLs.
In June 2018 Google filed an interlocutory application seeking summary judgment.
Evidence
On the hearing of the interlocutory applications, I received on tender by Dr Duffy (subject to certain exclusions) three affidavits sworn by her in June, July and August 2018 together with affidavits sworn by her former solicitors Edward Guthrie and Patrick McCabe in September 2016 and December 2017 respectively together (subject to certain exclusions) with the exhibits to those five affidavits. Dr Duffy gave oral evidence and was cross-examined. Dr Duffy adduced oral evidence from Michelle De Veau, who was also cross-examined, who gave evidence about undertaking searches using Google in relation to Dr Duffy. I also received various other documents.
I received on tender by Google an affidavit affirmed by Google Staff Software Engineer Raghava Kondepudy in August 2018. Mr Kondepudy gave evidence in part by adopting (subject to qualifications) parts of a written statement by Vaughan Madden-Woods, another Google Staff Software Engineer, dated June 2015. I received an affidavit affirmed by Google’s solicitor Paul Dimitriadis in June 2018. I received the exhibits to and certain documents referred to in those affidavits. Mr Kondepudy and Mr Dimitriadis gave oral evidence in cross-examination and re-examination. I also received various other documents.
I address the effect of the evidence when relevant to and in the context of the parties’ submissions rather than attempting to summarise it at this point. I have had regard to the whole of the admitted evidence in deciding the various issues that arise on the interlocutory applications.
Summary judgment application
Google’s primary contention is that Dr Duffy requires permission to proceed pursuant to section 21 of the Act, such permission should be refused amongst other reasons because Dr Duffy will not succeed in the action, and the action should be dismissed absent such permission. Google contends in the alternative that, if section 21 permission is not required or is granted, summary judgment should be granted dismissing the action on Google’s application.
There is an obvious overlap between the questions whether permission to proceed should be refused because Dr Duffy will not succeed in the action and whether the action should be summarily dismissed on Google’s application. Although logically the question of section 21 permission arises first and if summary judgment would otherwise be granted section 21 permission should be refused, it is convenient to address Google’s summary judgment application first because of the overlap of issues.
Summary judgment principles
Rule 232 of the Supreme Court Civil Rules 2006 (SA) (the Rules) empowers the Court to grant summary judgment dismissing an action on the application of a defendant “if and only if there is no reasonable basis for the claim against the applicant”.
In Ceneavenue Pty Ltd v Martin,[10] Debelle J (with whom Duggan and Anderson JJ agreed) said:
The test in Rule 232(2) requires the court first to identify the issues to be tried and then to assess whether the claim or defence has reasonable prospects of success…
The question whether there is no reasonable basis for the claim or defence must be determined in a summary way. It is entirely inappropriate for there to be a mini trial on that question. It must, therefore, be evident or obvious that the party defending the application for summary judgment has no reasonable basis for the claim or the defence. While adversarial argument will assist in the determination of that question, the question should be capable of ready resolution without prolonged argument. A prolonged argument might suggest that there is a reasonable basis for the claim or the defence. Comparison with the requirements in rules in other jurisdictions providing for summary judgment confirms these propositions.[11]
[10] [2008] SASC 158, (2008) 106 SASR 1.
[11] At [81]-[82].
In Bradman v Allens Arthur Robinson,[12]Kourakis J (as his Honour then was) said:
[12] [2009] SASC 80.
The purpose of the rule is plain. In Swain Lord Woolf MR explained that it saves expense and achieves expedition. Importantly, he observed that it avoids the Court’s resources being used up on cases for no purpose. The rule serves the interests of justice, because as Lord Woolf MR explained:
If a claimant has a case which is bound to fail, then it is in the claimant’s interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant should know that as soon as possible.
It follows from the object of the rule so stated that it is inappropriate to hold a mini-trial. In Three Rivers District Council v Bank of England (No 3) - Lord Hope put it in this way:
It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hilman, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all. (underlining added)
A similar position was stated by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd, when he said:
The purpose of the enactment is to enable the court to deal with matters which should not be litigated because there is no reasonable prospect of any outcome but one. If there is a reasonable danger that a claim or defence could be dismissed under s 31A, which could succeed at a trial, the provision would create miscarriages of justice. ... It could not have been the intention of the parliament in introducing s 31A to the Federal Court Act to require the court to engage in lengthy and elaborate trials on an interlocutory basis for the purpose of determining whether or not a proceeding had no reasonable prospects of success.[13]
[13] At [25]-[27]. (Citations omitted)
In Spencer v Commonwealth of Australia,[14] French CJ and Gummow J, considering subsection 31A(2) of the Federal Court of Australia Act 1976 (Cth) which the Full Court of this Court[15] has held imposes a similar test to that for summary dismissal under rule 232(2)(b), said:
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.[16]
Hayne, Crennan, Kiefel and Bell JJ said:
How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”…
Rather, full weight must be given to the expression as a whole.[17]
[14] (2010) 241 CLR 118.
[15] Collins v Djunaedi [2016] SASCFC 48 at [16] per Kourakis CJ (with whom Stanley and Parker JJ agreed).
[16] At [25]-[26]. (Footnotes omitted)
[17] At [58]-[60]. (Footnotes omitted)
In Proude v Visic (No 4),[18] in a passage subsequently approved by the Full Court,[19] I said:
What is a reasonable basis for a claim will vary depending upon the nature and circumstances of the particular claim.[20]
[19] Collins v Djunaedi [2016] SASCFC 48 at [15] per Kourakis CJ (with whom Stanley and Parker JJ agreed).
[20] At [19].
In Collins v Djunaedi[21] Kourakis CJ (with whom Stanley and Parker JJ agreed) said:
In the case of a summary judgment application, there is a reasonable basis for a claim … when there is an evidential foundation for facts upon which arguable propositions of law would result in judgment for the plaintiff ... In cases in which the defendant merely denies the claim, there must be reasonable grounds on which to contend that the plaintiff will not discharge its onus of proof or make good the propositions of law on which it relies. In the case of a SCR 232 application, the evidential basis or grounds must at least be pleaded.[22]
[21] [2016] SASCFC 48.
[22] At [17].
In Trkulja v Google LLC[23] the High Court addressed summary judgment in the context of an issue as to publication and innocent dissemination. Although the following passage was by way of obiter dicta and in the context of the specific facts in that case, Kiefel CJ, Bell, Keane, Nettle and Gordon JJ observed:
McDonald J was correct to hold that it is strongly arguable that Google’s intentional participation in the communication of the allegedly defamatory results to Google search engine users supports a finding that Google published the allegedly defamatory results. Properly advised, that was all that the Court of Appeal needed to say on the subject. Instead, although the Court of Appeal did not decide the appeal on the question of publication, their Honours made a purportedly determinative finding of mixed fact and law that a search engine proprietor, like Google, is a publisher of search results, including of autocomplete predictions, but that an innocent dissemination defence will almost always, if not always, be maintainable in a period before notification of an alleged defamation.
That was not an appropriate way to proceed. In point of principle, the law as to publication is tolerably clear. It is the application of it to the particular facts of the case which tends to be difficult, especially in the relatively novel context of internet search engine results. And contrary to the Court of Appeal's approach, there can be no certainty as to the nature and extent of Google’s involvement in the compilation and publication of its search engine results until after discovery. There are only the untested assertions of Google deponents. Furthermore, until and unless Google files a defence it cannot be known what defences will be taken (whatever Google might now say is its intention regarding the defences on which it will rely). Nor does it profit to conjecture what defences might be taken and whether, if taken, they would be likely to succeed. For whatever defences are taken, they will involve questions of mixed fact and law and, to the extent that they involve questions of fact, they will be matters for the jury. Given the nature of this proceeding, there should have been no thought of summary determination of issues relating to publication or possible defences, at least until after discovery, and possibly at all.
The Court of Appeal were also incorrect to say that it was incumbent on Mr Trkulja to plead that Google is a primary or secondary publisher of the allegedly defamatory matters. It is not the practice to plead the degree of participation in the publication of defamatory matters, for the reason that all degrees of participation in the publication are publication…
If Google wishes to invoke the defence afforded to “subordinate distributors” by s 32 of the Defamation Act or otherwise contend that the degree of its participation in the publication of the impugned search results was such that it should not be held liable, it is for Google to plead and prove the relevant facts.[24]
[23] [2018] HCA 25, (2018) 263 CLR 149.
[24] At [38]-[41]. (Footnotes omitted)
In Jennings v Police[25]Kourakis CJ (with whom Stanley and Parker JJ agreed) said of the District Court version of rule 232:
DCR 232 contemplates that there will be sufficient material before the Court to determine whether or not there is a reasonable basis for the claim or defence. Given the summary proceedings envisaged by the rule, that material will be before the Court either by way of the affidavits of deponents, who are not required for cross-examination, or by agreed facts. If the critical facts are disputed then the matter should go to trial. Summary judgment given pursuant to DCR 232 is a final determination which supports res judicata.[26]
[25] [2019] SASCFC 93.
[26] At [35].
First new search result and first new ROR report
Google addresses each of the four new search results separately and addresses the google.com.au website separately from the google.com website. Different considerations apply to a limited extent, although there is a very high degree of overlap, in respect of these different causes of action or aspects of Dr Duffy’s pleaded claims.
Google addresses the publication of the first new ROR report in the context of each of the first and third new search results and the second new ROR report in the context of each of the second and fourth new search results. In broad terms this is appropriate because the new ROR reports are accessed on Dr Duffy’s pleadings using Google’s search engines via the new search results. In broad terms, I consider the first new ROR report in conjunction with the first new search result, and so on.
Google.com.au website
Dr Duffy pleads that between 6 May 2014 and 6 November 2015 Google published the first new search result and the first new ROR report accessed thereby on searches for iterations of her name on the google.com.au website.
Mr Kondepudy gave evidence that before October 2017 Google maintained different websites for different countries. The website google.com.au (the Australian domain) was maintained for the purpose of searches by users in Australia. The website google.com (the United States domain) was maintained for the purpose of searches by users in the United States of America. The algorithm for search results took into account the domain such that searches on the Australian domain would tend to be slanted toward results more relevant to Australian users. Removals or blocking also differed between different country domains. If a user in Australia (assessed primarily by reference to the user’s apparent IP address) accessed the United States domain (google.com), he or she would typically be redirected to the Australian domain but could override this default and undertake searches on the United States domain or any other country domain (although only a small percentage of users actually did so). If a user used a virtual private network (VPN) with the gateway to the Internet in a different country, Google would perceive the user as being in that different country.
Mr Kondepudy gave evidence that since October 2017 Google distinguishes between country editions: for example there is an Australian country edition and a United States country edition. By default, a user in Australia (assessed primarily by reference to the user’s apparent IP address) undertaking a Google search will typically be directed to the Australian country edition but this default position can be overridden by the user to access a different country edition.
Mr Kondepudy gave evidence in some detail concerning what Google variously terms its “removals” or “blocking” process. Google is able to block search results on one of its domains or country editions in respect of a specific URL. This means that a person searching on the relevant domain or country edition will not receive a search result which contains a hyperlink to that specific URL and hence will not be able to access the external webpage denoted by that URL via that Google domain or country edition. I refer, as does Google, to this as a removal. Obviously this does not entail removal of the external webpage and further a person using a different search engine (or a Google domain/country edition which has not been subject to the same removal) will still be able to access the external webpage. The removals process operates at the level of the external webpage’s URL. If the operator of the external website changes the URL in respect of the webpage, the removal will not operate in respect of the changed URL.
Mr Kondepudy also gave evidence about matters including the Internet, the World Wide Web and Google’s search engines. I have regard to that evidence without attempting to summarise it herein, primarily by way of background and context.
Mr Kondepudy gave evidence that it is Google’s legal team which decides whether a removal should be undertaken. If so, it instructs the Google software engineers to undertake the technical process of effecting the removal.
Google contends that there is no reasonable basis for Dr Duffy’s claim in respect of google.com.au for a combination of two reasons, namely time limitation and absence of relevant notification by Dr Duffy to Google in respect of the first search result.
Time limitation
Subsection 37(1) of the Limitation of Actions Act 1936 (SA) imposes a prima facie time limitation period of one year running from the date of publication of the matter complained of. Subsection 37(2) empowers the court to extend the limitation period to up to three years if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of the publication.
Google contends that Dr Duffy’s claim in respect of the period up to 19 October 2015 is barred by section 37. Dr Duffy has not sought an extension of time in which to institute the action. Although the time limitation is a matter of defence rather than an element of the cause of action, in the absence of an application for extension of time it is clear that a defence by Google based on section 37 will succeed in respect of the period up to 19 October 2015. Google acknowledges that this does not however cover the remaining pleaded period from 20 October 2015 onwards.
Notification
Dr Duffy sent a notice of concern to Google dated 28 April 2014 (the April 2014 concerns notice) by registered post and it was received by Google on 6 May 2014. That concerns notice alleged that Google published on Google domains, amongst other things, certain snippets which contained defamatory imputations against Dr Duffy identified in the notice. The snippets were contained in an annexure to the notice. The first page of the annexure comprised a page of results of a search apparently undertaken on 18 April 2014 for a phrase that included the words “janice duffy”. The first result shown on the page (the first notified search result) was as follows:
Janice Duffy – Psychic Stalker! Psychics Beware Of …
…
Jan 16, 2014 - Janice Duffy - Psychic Stalker! Psychics Beware Of Australian Psychic Stalker! Janice Duffy Stalked me on the computer for several months.
There is no evidence what consideration was given by Google to the April 2014 concerns notice. There is no evidence of a reply from Google to Dr Duffy in relation to the concerns notice.
Google contends that the April 2014 concerns notice did not effectively notify it of the first new search result or consequentially of the first new ROR report. This is because, Google contends, the URL contained in the first notified search result is elided.
It is clearly established that a secondary publisher will not be liable for defamation if it did not know and could not with the exercise of reasonable diligence have known of the defamatory matter.[27] I assume in favour of Google for the purpose of the interlocutory applications without deciding that a search engine operator such as Google is in general a secondary publisher of defamatory material returned or accessed via a web search using the search engine.[28] It is clearly established that the onus of proof in respect of knowledge and means of knowledge of a secondary publisher lies on the defendant and hence lack of knowledge or means of knowledge is a defence rather than an element of the cause of action.[29]
[27] Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 586-588 per Brennan CJ, Dawson and Toohey JJ and 592-595 per Gaudron J.
[28] See Trkulja v Google LLC [2018] HCA 25 at [38]-[39] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ which may cast doubt on this proposition which I accepted in Duffy v Google Inc [2015] SASC 170.
[29] Emmens v Pottle (1885) 16 QBD 354 at 357 per Lord Esher MR; Vizetelly v Mudie’s Select Library Limited [1900] 2 QB 170 at 180; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 586 per Brennan CJ, Dawson and Toohey JJ, citing Neill B and Rampton R, Duncan and Neill on Defamation, 2nd ed, Butterworths, 1983 at p 110 fn 3; Trkulja v Google LLC [2018] HCA 25 at [41] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ.
I reject Google’s contention for three reasons.
First, Google tendered nine letters or emails sent by Google or its solicitors to Dr Duffy or her solicitors and four letters or emails sent by Dr Duffy or her solicitors to Google or its solicitors ranging from 9 November 2015 to 6 August 2018 relating to search results. No other communications from Dr Duffy or her solicitors to Google or its solicitors were tendered by Google. No evidence was adduced by Google that there was no other communication from Dr Duffy or her solicitors between 9 November 2015 and 6 August 2018. No evidence was adduced by Google about communications from Dr Duffy or her solicitors relating to search results before November 2015, apart from the April 2014 concerns notice.
Dr Duffy tendered five letters or emails sent by her or her solicitors to Google or its solicitors and three letters or emails sent by Google or its solicitors ranging from 12 July 2010 to 19 November 2012, being documents attached to her notice to admit. No evidence was adduced by either party that there was no other communication from Dr Duffy or her solicitors between 12 July 2010 and 19 November 2012. No evidence was adduced by either party of communications from Dr Duffy or her solicitors between 19 November 2012 and 9 November 2015 (apart from the April 2014 concerns notice).
In the absence of evidence proving what communications Google did or did not receive from Dr Duffy or her solicitors, Google has failed to prove that it did not before 9 November 2015 receive any other notification from Dr Duffy which was capable of putting it on notice in respect of the first new search result (assuming for the time being that the April 2014 concerns notice did not do so). As observed above, the onus of proof of establishing an innocent dissemination defence lies on the defendant and Google has failed to discharge that onus.
It is true that Dr Duffy did not herself tender or identify any such communications but no onus lay on her to do so. It is true that Dr Duffy in her statement of claim pleads that she gave the April 2014 concerns notice but the onus remains on Google to plead by way of defence an innocent dissemination defence and ultimately to prove it. Dr Duffy’s pleading does not amount to an admission that there were no other communications between her or her solicitors and Google or its solicitors by reason of which Google might not establish an innocent dissemination defence. Neither party has yet made disclosure of relevant documents and at this stage on the evidence adduced or not adduced at the hearing of the interlocutory applications it is simply unknown what other relevant communications took place.
Secondly, the issue is not whether Dr Duffy notified Google of the first new search result. Rather, the issue is whether Google did not know and could not with the exercise of reasonable diligence have known of the defamatory first new search result. Mr Kondepudy gave evidence that since September 2013 he has been employed by Google as a staff software engineer. Between September 2013 and December 2016 his role (as part of a team of approximately 200 people) was to improve the web search functionality of the Google search engine. He was not then involved in the removals process. Since December 2016 he has been involved in the technical process for removing URLs. He has no role in deciding whether a particular URL should be removed: this is the province of the Google legal team which is a separate team of Google employees. The software team merely receives removal requests from the legal team and then undertakes the technical process to effect the removal. No evidence was adduced by Google from any member of the legal team, including any member who considered requests for removal from Dr Duffy. Google’s knowledge and available sources of knowledge for the purpose of the innocent dissemination defence are not necessarily confined to passively receiving notification from Dr Duffy. There is no evidence available to me on the basis of which I could find that Google’s legal team was unaware of the first new search result and could not with the exercise of reasonable diligence have known of it.
Thirdly, Google contends that the April 2014 concerns notice did not effectively notify it of the first search result because it was elided. Google contends that it was (and still is) not technically possible for it to interpret an elided URL so as to permit it to identify a specific complete URL. Google contends that it follows that it therefore did not know and could not reasonably have known, by reason of receipt of the April 2014 concerns notice, of the existence of the first new search result. Google relies on two matters to prove these propositions.
The first matter is that Mr Kondepudy gave evidence that, from the perspective of a software engineer, it is only possible to remove a specific webpage from search results if the software engineer is provided with the exact URL for the webpage concerned and a partial URL of the webpage is almost always insufficient because the removals process relies on matching exact URLs. There could potentially be millions or more complete URLs which correspond to a single elided URL and theoretically an infinite number of possible URLs could be imagined as corresponding to a single elided URL.
I accept Mr Kondepudy’s evidence in this respect as far as it goes. However, Mr Kondepudy does not address what steps the legal team might take to identify the complete URL when provided with a copy of a search result containing a partial URL. Nor does Mr Kondepudy address the first notified search result and express any opinion whether the complete URL could be discerned relatively easily by the legal team. Any number of examples can be imagined as to how hypothetically Google’s legal team might have ascertained the complete URL for the first ROR report. The following examples illustrate this point.
1. The copy of the first notified search result provided by Dr Duffy to Google was apparently produced by a search undertaken by Dr Duffy on 18 April 2014 being 10 days before she sent the April 2014 concerns notice and undertaken by entering the search term “janice duffy site: Google did not adduce any evidence that the legal team could not have replicated that search upon receipt of the concerns notice and obtained the same search result or, if it did, could not have clicked on the hyperlink and readily ascertained the complete URL. Although Mr Kondepudy gave evidence that the specific results returned on a Google search for the same term can vary depending on the user’s location, search history, device and preferences, this was merely generic evidence and did not address the ability of the Google legal team to ascertain the complete URL in the manner referred to herein or in example 2 below or in any other way.
2. Google did not adduce any evidence that the legal team could not have entered the words contained in the body of the search result and obtained the same search result.
In addition, Google did not adduce any evidence that the legal team did not undertake its own searches in respect of Dr Duffy, prompted either by the imminent or actual trial of, or my judgment in, the first action.
These are only illustrations of possibilities in respect of which there is no evidence from Google. No evidence was adduced as to how Google’s legal team reacted to receipt of the April 2014 concerns notice. As the onus of proof lies on Google, it has failed to prove that it did not have knowledge or means of knowledge of the first new search result.
The second matter relied on by Google to prove the propositions summarised at [51] above is issue estoppel arising from paragraph [246] of my reasons for judgment in the first action. Commencing at paragraph [235], I addressed the question whether Google knew or ought to have known of the existence of, amongst other things, the first ROR report and of search results (including the first original search result) which contained hyperlinks to the first ROR report. Commencing at paragraph [238], I addressed the specific question whether notifications by Dr Duffy in September 2009 adequately put Google on notice in respect of the first four ROR reports. I concluded that they did. In the course of my reasons, I said at paragraph [246]:
On 7 March 2011, Google removed from the Google Australian website snippets from and links to the first four Ripoff Report webpages. Although the substantive content of some of those webpages was still accessible thereafter via different URLs, Dr Duffy either is not suing in respect of those URLs or did not prove notification to Google in respect of those URLs and hence Google is not liable as a publisher on the Google Australian website in respect of the first to fourth ROR reports after 7 March 2011.[30]
[30] Footnote omitted.
Google refers to paragraph 15.3 of Dr Duffy’s Second Reply in the first action in which she alleged that a number of URLs were “re-indexed on at some date after June 2013” and those URLs included the complete URL of which the first search result is an elided version. Google contends that I found at paragraph [246] of my reasons for judgment in the first action that Dr Duffy had not proved notification to Google in respect of the URLs particularised in the Second Reply.
The question whether issue estoppel arises and as to its subject matter is to be determined objectively. It is not to be determined by reference to the subjective intention of the author of reasons for judgment. I therefore put aside any question of my subjective intention in writing paragraph [246] of my reasons for judgment in the first action.
Paragraph 15.3 of the Second Reply was a reply to paragraph 34(i) of Google’s Third Defence which pleaded in mitigation of damages that a number of URLs notified by Dr Duffy after filing her statement of claim were removed by Google from the search results that appear for a search conducted on google.com.au. and went on to list a series of URLs including the complete URL for the original first ROR report. In her Reply, Dr Duffy pleaded that nevertheless the URL was re-indexed after June 2013 as “ /r/Janice-Duffy-Psychic-Stalker-Psychics-Beware-Of-Australian-Psychic-Stalker /internet/Janice-Duffy-Psychic-Stalker-Psychics-Beware-Of-Australian-Psychic-Stalker-Janice-Duff-295712”, which is the first new ROR URL. By her reply, Dr Duffy did not purport to, and could not, sue for defamation in respect of the first new ROR report or the first new search URL.
Assessed objectively, there is nothing in paragraph [246] of my reasons for judgment in the first action, whether considered in isolation or in the context of the Defence and Reply, which indicates that I found that Dr Duffy was suing in respect of the first new ROR report or the first new search URL and that she failed to prove notification to Google in respect thereof. (I observe by way of aside that I had earlier held that the onus of proof in respect of knowledge and means of knowledge lay on Google and my reference in paragraph [246] to Dr Duffy failing to prove notification was a loose, and erroneous, use of language).
For the sake of completeness, I note that Google observes in passing that the elided URL contained in the first notified search result is not identical to the elided URL pleaded in Dr Duffy’s statement of claim as part of the first new search result. Google does not rely on this difference: rather it relies on the fact of elision of the first notified search result which I have addressed above. In any event, the apparent difference is only the result of Dr Duffy erroneously omitting the characters “Janice-Duffy” where they first appear in the first new search result in her pleading of the first new search result.[31]
[31] See footnote 5 above.
Similarly, Google observes in passing that the heading and body of the first notified search result is different to that of the first new search result. They can be compared as follows:
First notified search result
Janice Duffy – Psychic Stalker! Psychics Beware Of…
Jan 16, 2014 - Janice Duffy – Psychic Stalker! Psychics Beware Of Australian Psychic Stalker! Janice Duffy Stalked me on the computer for several months.[32]
First new search result
Janice Duffy – Psychic Stalker! Psychics Beware Of
AustralianJan 16, 2014 – Psychics Beware Of Australian Psychic Stalker! Janice Duffy Stalked me on the computer for several months. She uses the name Janice and…[33]
[32] Emphasis by bolding added.
[33] Emphasis by bolding added.
The first notified search result contains the additional words “Janice Duffy – Psychic Stalker!” and the first new search result contains the additional words “Australian” and “She uses the name Janice and” which I have emboldened in the table. Although the two search results are therefore not identical, they are both consistent with the text of the first new ROR report. Mr Kondepudy gave no evidence about the similarities or differences between the two search results.
Google refers to evidence given by Mr Kondepudy that search results produced in response to searches by different users using different computers to access the world wide web can and often do vary and even searches by the same user using the same computer can vary over time. This evidence will be relevant at trial to the issue whether Dr Duffy has proved publication to publishees. However, it does not establish that Google did not know and could not with the exercise of reasonable diligence have known of the first new search result or the first new ROR report.
Google submits that the April 2014 concerns notice only included search results returned in response to a search on the google.com domain and not on the google.com.au domain. However, the body of the concerns notice clearly referred to domains that can be accessed in Australia and encompassed the Google.com.au domain.
Google observes that it would have been easy for Dr Duffy to have provided the complete URLs in respect of search results that she notified. However, there is no evidence that Google asked her for complete URLs in response to the April 2014 concerns notice. In any event, the mere fact that it would have been easy for Dr Duffy to have provided the complete URLs does not entail that Google did not know and could not by the exercise of reasonable diligence have known of the existence of the relevant material.
Google observes that since the judgment on liability in the first action (October 2015) it has on multiple occasions requested that Dr Duffy provide it with any URLs that are of concern to her so that they could be considered for removal and, when she has done so, Google has acted. While Google adduced some, limited, evidence of such a request and of such action, the evidence adduced relates to matters occurring long after the April 2014 concerns notice. In any event, such requests and action do not prove that Google did not know and could not by the exercise of reasonable diligence have known of the existence of the relevant material.
Google has failed to prove an innocent dissemination defence in respect of the first new search result. This does not of course entail that it will not prove such a defence at trial after filing a defence, both parties have made disclosure and full evidence has been adduced at trial, but that is a different question.
Publication to individual persons
In the course of its submissions in respect of notification, Google makes a submission that there is no evidence that the first new search result, or the first new ROR report accessed thereby, were published to any individual. This does not bear on the grounds for summary judgment of which Google gave particulars. In any event, it would not afford a ground for summary judgment for the same reasons as in respect of the google.com domain addressed below.
Google.com website
Dr Duffy pleads that since 6 May 2014 Google has published the first new search result and the first new ROR report accessed thereby on searches for iterations of her name on the google.com website.
Google makes the same contentions in relation to the claim by Dr Duffy for defamation in respect of the first new search result and the first new ROR report accessed thereby published on and via the google.com website as in respect of the google.com.au website and my conclusions in relation to this claim are the same.
However, Google gave an additional particular of its grounds for summary judgment, and makes two additional contentions, in respect of the google.com website.
Google’s first contention is that Dr Duffy will fail to establish publication for the same reasons as she failed in the first action. In the first action, I did not find that there was publication to any person of the defamatory search results and ROR reports on or via the google.com website. However, in the first action there were full pleadings from both sides, disclosure was made, evidentiary material was compiled, the matter proceeded to trial and all evidence that the parties wished to adduce was tendered. By contrast, in the second action no defence has been filed, no disclosure has been made and evidentiary material relevant to persons accessing the google.com website has not been compiled. It would be inappropriate to dismiss the action summarily at this stage on this ground.
Google’s second contention is that an issue estoppel arises against Dr Duffy because I found in the first action that Dr Duffy had failed to prove the existence of any publishees in Australia in respect of the google.com website. My consideration of the issue of publishees in the first action was in the context of the publication that I otherwise found was made by Google in the period up to March 2011 and on the basis of the evidence adduced at the trial of the first action. Any finding I made in relation to publishees in the first action is incapable of giving rise to an issue estoppel in a subsequent action involving different publications, different periods and in respect of which the evidence has yet to be adduced.
Conclusion
In conclusion Google has failed to establish that there is no reasonable basis for the action insofar as it includes causes of action in relation to the first new search result and the first new ROR report accessed thereby.
Second new search result and second new ROR report
Google.com.au website
Dr Duffy pleads that since 6 May 2014 Google has published the second new search result and the second new ROR report accessed thereby on searches for iterations of her name on the google.com.au website.
The evidentiary and factual foundation for Google’s contentions in respect of the second new search result is largely the same as in respect of the first new search result. The differences can be summarised as follows.
1Dr Duffy pleads ongoing publication in respect of the second new search result, and second new ROR report accessed thereby, up to the date of pleading.
2There is no suggestion or evidence that Google removed the URL in respect of the second new ROR report in November 2015.
3Mr Guthrie sent an email to Mr Dimitriadis on 1 September 2016 in which he referred to a “proposed Second Statement of Claim”, which I infer was a draft statement of claim that had been provided to Mr Dimitriadis in relation to what was then the proposed second action (that draft statement of claim was not tendered at the hearing of the interlocutory applications). Mr Guthrie set out in the email what he said were the URLs complained of in the proposed statement of claim. They were the same URLs as are referred to in the statement of claim later filed in October 2016 referred to above and relate to the first and second new ROR reports. Mr Guthrie said “the URLs were notified to your client in April 2014…, and removed in November 2015, from the Google.com.au site. They continue to be accessible on the Google.com site.”
4Mr Kondepudy gave evidence that there is no record of any action having been taken by the removals team between 1 September 2016 and late December 2017 in relation to the second new ROR URL.
5Mr Kondepudy gave evidence that he was informed by Google’s lawyers and believed that as part of considering the applications in these proceedings it was realised that the second new ROR URL had not been removed from google.com.au. Curiously Mr Dimitriadis did not give evidence about this.
6Mr Kondepudy gave evidence that the removals team added the URL to the removals list for Australia by around 18 December 2017. Curiously he did not say that it was in fact removed or that it was removed on a specific date. Nor did Mr Dimitriadis address the topic of actual removal in his evidence.
Google contends that Dr Duffy represented to it in September 2016 that no removals action was required and implicitly contends that Google relied on the representation to take no action until it discovered the true position in December 2017, whereupon it removed the URL for the second new ROR report. Google contends that, in these circumstances, in addition to the circumstances common to the first new search result and the first new ROR report, it should be found that Google was never notified in respect of the second new search result and the second new ROR report. Google contends that Dr Duffy thereby has no reasonable prospect of succeeding in the action in respect of these matters.
I reject Google’s contention. First, there is not an adequate evidentiary basis to find that Google relied on Mr Guthrie’s email of 1 September 2016 in not removing the URL for the second new ROR report or that that email caused Google not to remove it. There is no evidence from Google’s legal team about their beliefs or actions in relation to the URL for the second new ROR report or indeed about anything else. Mr Kondepudy did not give evidence that he relied on the email and nor did Mr Dimitriadis (being the only two Google associated witnesses who gave evidence). Nor is there any evidence to explain what steps Google’s legal team took in November 2015 in respect of the second new search result and the second new ROR report when it blocked the first new ROR report or to explain their state of mind and any steps taken by them in respect of the second ROR report between April 2014 and August 2016. Nor is there evidence to explain what response was made by Google less than two months after Mr Guthrie’s email when, notwithstanding the statement in that email, Dr Duffy filed the statement of claim in this action in October 2016 asserting continuous and continuing publication of the second new search result since May 2014. In the absence of any such evidence from Google personnel, I am not prepared, particularly on a summary judgment application, to draw the inference that there was such reliance. There are various other possibilities. For example, Mr Kondepudy gave evidence that each of the second, third and fourth new search results was added to the removals list for Australia on 18 December 2017. It is possible that one decision was made to block all three search results at the same time. In addition, on its face, any representation by Mr Guthrie would appear to have been negated by the filing of the statement of claim.
Secondly the issue is whether Google knew or ought to have known of the existence of the second new search result between October 2015 and December 2017. That issue is not answered exclusively by reference to Mr Guthrie’s email of 1 September 2016. For the reasons given in respect of the first new search result, Google has simply not discharged the onus of proof that it did not know and ought not to have known of the second new search result.
The third result shown on the first page of the annexure to the concerns notice (the second notified search result) is as follows:
Ripoff Report | Dr. Janice Duffy Complaint Review …
6, 2008 – Dr. Janice Duffy Complaint Review: Dr. Janice Duffy Stop the Australian Psychic Stalker Dr. Janice Duffy!! Adelaide, South Australia Adelaide, …Google makes the same contention concerning the elision of the URL as in respect of the first new search result. I reject that contention for the same reasons.
Again for the sake of completeness, I note that the elided URL contained in the second notified search result is not identical to the elided URL pleaded in Dr Duffy’s statement of claim as part of the second new search result. Google does not refer to or rely on this difference. In any event, the apparent difference is only the result of Dr Duffy erroneously omitting the characters “report” and the ellipses “…” at the end of the URL in her reproduction of the second new search result in her pleading.[34]
[34] See footnote 7 above.
Again for the sake of completeness, I note that, unlike the first search result, the heading and body of the second notified search result are identical to those of the second new search result.
Google has failed to prove an innocent dissemination defence in respect of the second new search result.
Google.com website
Dr Duffy pleads that since 6 May 2014 Google has published the second new search result and the second new ROR accessed thereby on searches for iterations of her name on the google.com website.
Google makes the same additional contention in respect of the second new search result as it makes in respect of the first new search result concerning publication to any person of the defamatory search results and ROR reports on or via the google.com website. I reject that contention for the same reasons.
Conclusion
In conclusion Google has failed to establish that there is no reasonable basis for the action insofar as it includes causes of action in relation to the second new search result and the second new ROR report accessed thereby.
Third new search result and first new ROR report
Dr Duffy seeks permission to amend her statement of claim to introduce a claim in respect of the third new search result and an associated claim in respect of the first new ROR report. Although summary judgment could not be granted until such permission is granted, the interlocutory applications were argued on the basis that Google is seeking summary judgment conditionally upon permission to amend being granted.
Google.com.au website
Dr Duffy pleads that since at least 13 May 2017 Google has published the third new search result and the first new ROR report via the third new ROR URL accessed thereby on searches for iterations of her name on the google.com.au website.
Mr Dimitriadis gave evidence that on 14 December 2017 he received an email from Mr McCabe attaching the proposed second statement of claim, which set out the complete URLs contained within the third and fourth new search results (ie the third and fourth new ROR URLs). He said that on 19 December 2017 his firm was instructed by Google that the third and fourth new ROR URLs had been blocked for searches on google.com.au.
Mr Kondepudy gave evidence that the third and fourth new ROR URLs were added to the removals list for Australia around 18 December 2017.
Curiously, Mr Kondepudy did not say that the third and fourth new ROR URLs were actually removed nor did he give any date on which they were removed and Mr Dimitriadis merely said that his firm was instructed by Google that they had been blocked but did not say that he had been informed, or that he believed, that they had been blocked. Google did not adduce any evidence that those URLs were actually removed/blocked in December 2017 or otherwise, although this is Google’s case. This is perhaps systematic of the limited nature of evidence adduced on a summary judgment application as opposed to at trial. I proceed on the assumption, favourable to Google, that the third and fourth new ROR URLs were in fact blocked for searches on google.com.au on 19 December 2017.
Google does not, on the interlocutory applications, rely on any time limitation defence. It does however make similar contentions in relation to notification as it makes in relation to the first and second new search results, albeit on a different evidential and factual foundation.
Google contends that the April 2014 concerns notice did not effectively notify it of the third new search result or of the first ROR report accessed thereby. It is Dr Duffy’s case that the third new ROR URL was not created until 2017 and in those circumstances it is difficult to see how the April 2014 concerns notice could have effectively notified Google of the third new search result. I assume in favour of Google, without deciding, that the April 2014 concerns notice did not effectively notify it of the third new search result.
However, this only negates notification having been made by Dr Duffy in April 2014; it does not entail that Google has established that it did not know and could not reasonably have known of the third new search result or the first new ROR report via the third new ROR URL accessed thereby for the other reasons given above in respect of the first new search result.
Google has failed to prove an innocent dissemination defence in respect of the third new search result.
Google.com website
Dr Duffy pleads that since at least 13 May 2017 Google has published the third new search result and the first new ROR report via the third new ROR URL accessed thereby on searches for iterations of her name on the google.com website.
Google makes the same additional contention in respect of the third new search result and the google.com website as it makes in respect of the first and second new search results concerning publication to any person of the defamatory search results and ROR reports on or via the google.com website. I reject that contention for the same reasons.
Conclusion
In conclusion Google has failed to establish that there is no reasonable basis for the action insofar as it includes causes of action in relation to the third new search result and the first new ROR report via the third new ROR URL accessed thereby.
Fourth new search result and second new ROR report
Dr Duffy seeks permission to amend her statement of claim to introduce a claim in respect of the fourth new search result and an associated claim in respect of the second new ROR report.
Google.com.au website
Dr Duffy pleads that since at least 8 December 2017 Google has published the fourth new search result and the second new ROR report via the fourth new ROR URL accessed thereby on searches for iterations of her name on the google.com.au website.
Mr Dimitriadis and Mr Kondepudy gave evidence about events in December 2017 which is summarised at [91] and [92] above. I make the same observations and proceed on the same basis in respect of the fourth new search result as set out at [93] above.
Google does not, on the interlocutory applications, rely on any time limitation defence. It does however make the same contentions in relation to notification as it makes in relation to the third new search result.
Again I proceed on the assumption favourable to Google that Dr Duffy did not notify it of the fourth search result by the April 2014 concerns notice.
For the same reasons as in respect of the third new ROR search result, this does not entail that Google has established that it did not know and could not reasonably have known of the fourth new search result or the second new ROR report via the fourth new ROR URL accessed thereby.
Google has failed to prove an innocent dissemination defence in respect of the fourth new search result.
Google.com website
Dr Duffy pleads that since at least 8 December 2017 Google has published the fourth new search result and the second new ROR report via the fourth new ROR URL accessed thereby on searches for iterations of her name on the google.com website.
Google makes the same additional contention in respect of the fourth new search result as it makes in respect of the other new search results concerning publication to any person of the defamatory search results and ROR reports on or via the google.com website. I reject that contention for the same reasons.
Conclusion
In conclusion Google has failed to establish that there is no reasonable basis for the action insofar as it includes causes of action in relation to the fourth new search result and the second new ROR report via the fourth new ROR URL accessed thereby.
Conclusion
Google has failed to establish that there is no reasonable basis for the action. I dismiss its application for summary judgment.
I observe that, for the reason given above, this does not of course entail that on full evidence at trial Google will not succeed on an innocent dissemination defence or that Dr Duffy will not fail to prove publication to individuals.
Amendments to statement of claim
Dr Duffy seeks permission, to the extent necessary, to file an amended statement of claim pleading additional causes of action in respect of the third and fourth new search results and first and second new ROR reports accessed thereby.
Ordinarily Dr Duffy would not need permission to amend her statement of claim because a party is ordinarily entitled to amend a statement of claim once without the permission of the Court.[35] However, a plaintiff requires permission to amend a statement of claim if it raises a new cause of action based on events occurring after the commencement of the action.[36] In that event, the Court is required to be satisfied that the new cause of action can be included without injustice to another party.[37]
[35] Supreme Court Civil Rules 2006 (SA) rule 54(5).
[36] Supreme Court Civil Rules 2006 (SA) rule 105(2).
[37] Supreme Court Civil Rules 2006 (SA) rule 105(2)(a).
The proposed amendments seek to introduce causes of action based on events occurring after the commencement of the action in October 2016. Permission to amend is therefore required.
Google does not contend that inclusion of the new causes of action would cause any injustice to it within the meaning of rule 105(2)(a) of the Rules.
Google contends that permission to amend should be refused because permission to proceed with the action (as amended or not) is required under section 21 of the Act and that permission should be refused and because, if permission to amend is granted, summary judgment should be granted in favour of Google in respect of the amended claim. I have already concluded that summary judgment should not be granted in respect of the amended claim. I have yet to consider whether section 21 permission is required or should be granted.
At this stage, I determine that permission to amend should be granted conditionally upon section 21 permission being not required or being granted.
Permission to proceed pursuant to section 21
Section 21 of the Act requires a person who previously brought defamation proceedings for damages in respect of a matter to obtain permission to bring further such proceedings against the same defendant in relation to the same or any other publication of the same or like matter.
Dr Duffy contends that section 21 of the Act does not apply to this action and in the alternative permission should be granted.
Google contends that section 21 does apply to this action and permission should be refused.
Is section 21 permission required?
Section 21 provides:
21—Permission required for further proceedings in relation to publication of same defamatory matter
If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the permission of the court in which the further proceedings are to be brought.
Dr Duffy previously brought defamation proceedings, by way of the first action, for damages against Google in relation to the publication of, amongst other things, the first and second original search results and the first and second original ROR reports. The second action comprises further defamation proceedings for damages against the same defendant. The second action is not in relation to the same publication or publication of the same matter. The issue is whether it is in relation to “other publication of like matter” within the meaning of section 21.
In Phillips v Robab Pty Limited[38] Rothman J considered section 23 of the Defamation Act 2005 (NSW), which is in effectively identical terms to section 21 of the Act, in the course of considering whether a permanent injunction should be granted as part of final relief in favour of Mr Phillips. One consideration identified by Rothman J as relevant to Mr Phillips’ application for a permanent injunction was whether otherwise he would be required by section 23 to obtain permission before commencing a fresh proceeding in respect of a fresh publication by the defendant of the same defamatory matter. Rothman J said:
Such permanent injunctions have a particular use in circumstances where the defamatory material has been published on the internet and, therefore, can easily be republished. Given the terms of s 23 of the Defamation Act, a re-publication by the same defendant of the same mater [sic] cannot be the subject of further proceedings, except for leave of the court. In my view, it is appropriate to issue a permanent injunction to restrain publication of the material or imputations. Such injunction should, in the circumstances of this case, enjoin all of the defendants.[39]
[38] [2014] NSWSC 1520.
[39] At [182].
It is not apparent from Rothman J’s reasons for judgment that the construction or effect of section 23 was in contest. The fact that Rothman J did not refer to any contentions by the parties or suggest that the proposition about its operation was contentious or give reasons for his construction strongly suggest that it was not in contest.
In Hockey v Fairfax Media Publications Pty Limited (No 2)[40] White J considered the proper construction of section 23 of the Defamation Act 2005 (NSW) in the course of considering whether a permanent injunction should be granted as part of final relief in favour of Mr Hockey. One argument advanced by Mr Hockey in support of his application was that otherwise he would be required by section 23 to obtain permission before commencing a fresh proceeding in respect of a fresh publication by the defendant of the same defamatory matter. White J did not accept this contention, saying:
In my opinion, this submission was based on a misunderstanding of the effect of s 23, which provides …
The purpose of s 23 is obvious on its face. It is to limit the potential for a multiplicity of proceedings when a single publication gives rise to multiple causes of action or when several publications of the same or similar kind give rise to multiple causes of action. In Spautz v Kirby, Hunt J spoke of this as the purpose of a predecessor of s 23:
The requirement that leave be obtained is on its face intended to prevent an abuse of process when separate and successive proceedings are brought against the same defendant in respect of the same matter (as defined).
Given that purpose, s 23 should not readily be construed as requiring an applicant to obtain leave for a second set of proceedings in respect of causes of action arising from publications occurring after judgment on claims in respect of earlier publications. In a case of that kind, it is improbable that the later publication would satisfy the description of a “publication of the same or like matter” for the purposes of s 23.
…
Accordingly, I consider that any future publication of the kind postulated by Mr Hockey is likely to be regarded as so separated in time and circumstance from the publication of the SMH poster and the two tweets as not to be regarded as a publication of “the same or like matter” for the purposes of s 23.[41]
[40] [2015] FCA 750, (2015) 237 FCR 127.
[41] At [21]-[23] and [25]. (Citations omitted)
White J went on to say that, even if that view was wrong, it would be no impediment to Mr Hockey commencing proceedings because he could do so and seek leave nunc pro tunc. In light of this reasoning, and the terms in which White J expressed his view in the passages extracted above, I accept Google’s submission that the view expressed was by way of obiter dicta.
In Carolan v Fairfax Media Publications Pty Limited (No 7)[42] McCallum J considered the interpretation of section 23 of the Defamation Act 2005 (NSW) in the course of considering whether a permanent injunction should be granted as part of final relief in favour of Mr Carolan. One argument advanced by Mr Carolan in support of his application was the same argument that had been advanced by Mr Hockey before White J. McCallum J referred to the difference of opinion expressed by Rothman J and White J. McCallum J expressed a “tentative view” on the construction of section 23, saying:
On that qualified basis, I would respectfully prefer the analysis of White J in Hockey. In my respectful opinion, s 23 should not be construed so as to place any hurdle in the way of a plaintiff who, having succeeded in a claim for defamation, finds himself defamed again by the same defendant in the same way. Further proceedings in that event would not be a vice and could not be taken to be the vice to which the section was directed. I would understand the section to be directed at preventing the proliferation of concurrent actions against the same defendant in relation to the same or like matter. Repetition after judgment raises different considerations.[43]
[42] [2017] NSWSC 351.
[43] At [51].
In Ghosh v Nine Digital Pty Ltd[44] Dr Ghosh had earlier sued Nine MSN Pty Ltd and News Ltd for defamation but her action had been dismissed for procedural reasons. She later sought to join in other proceedings against other defendants a new claim against Nine MSN Pty Ltd and News Ltd for defamation in respect of what she conceded was “publication of the same or like matter” as the subject of the earlier action and hence leave under section 23 of the Defamation Act 2005 (NSW) was required. Rothman J refused leave under section 23 and consequentially dismissed the joinder application. On her application for leave to appeal, Dr Ghosh sought to argue that section 23 leave was not required, because section 23 only applies to earlier extant proceedings and not to proceedings that have been finally determined. Dr Ghosh relied on what had been said by White J in Hockey and by McCallum J in Carolan.
[44] [2017] NSWCA 90.
Basten JA characterised the proposed argument as neither untenable nor clearly correct. Basten JA quoted the passage from the judgment of McCallum J in Carolan extracted above and said:
There are three factors to be considered with respect to McCallum J’s opinions. First, they were expressly stated to be “a tentative view as to the potential application of the section.” Secondly, they went somewhat further than the view adopted by White J. Thirdly, they adopted a view of the limited purpose of the section which was not to be found in the express language used, the statutory context in which the provision appeared, or in any extrinsic materials relevant to the drafting of the provision.[45]
Simpson JA quoted the third paragraph from the judgment of White J in Hockey extracted above and said:
This is not the occasion on which to reach a final view about the correctness or otherwise of that proposition. It is sufficient to say that the observation was not part of the ratio of the decision, and was made in a particular factual circumstance. It does not purport to be a concluded construction of s 23. That being the case, the decision affords, at best, tenuous support for the construction now sought to be advanced.[46]
Basten JA and Simpson JA each said that it was unnecessary to determine the issue raised as to the construction of section 23.
[45] At [20]. (Footnotes omitted)
[46] At [63].
In Rush v Nationwide News Pty Limited (No 9)[47] Wigney J considered the construction of section 23 of the Defamation Act 2005 (NSW) in the context of an application for a permanent injunction. One argument advanced by Mr Rush in support of his application was the same argument that had been advanced by Mr Hockey and Mr Carolan. Wigney J referred to the difference of opinion expressed by Rothman J in Phillips on the one hand and by White J in Hockey and McCallum J in Carolan on the other hand. Wigney J referred to the observations of Basten JA and Simpson JA in Ghosh. Wigney J found it unnecessary to decide the question of construction, saying:
There is force in the observations of Basten JA in Ghosh concerning the limited purpose which White J in Hockey and McCallum J in Carolan attributed to s 23 of the Defamation Act. There is nothing in the text of s 23 of the Defamation Act to suggest that it would not operate to require a plaintiff who had successfully sued on an article or report which appeared in, for example, a newspaper, to obtain the leave of the court before commencing or prosecuting any further action based on any subsequent republication of that article or report, or any “like” article or report. Nor does the context in which s 23 appears in the Defamation Act, or any extrinsic material, including the New South Wales Law Reform Commission Report, support the suggested limitation.
...
It is ultimately unnecessary to reach a concluded view on the proper construction of s 23 of the Defamation Act or its potential operation in Mr Rush’s case. It suffices to note that, depending on the nature of any further publication that might occur, Mr Rush may or may not be required to seek the leave of the court pursuant to s 23 of the Defamation Act before commencing or prosecuting any defamation action in relation to the further publication. Even if he is required to seek leave pursuant to s 23 of the Defamation Act, however, it does not necessarily follow that that would constitute a significant or material hurdle for Mr Rush. While again much will depend on the precise circumstances, it is difficult to imagine this Court, or any other court in which Mr Rush may choose to prosecute any new action, would be likely to refuse to grant leave to do so if the republication arguably gives rise to new or additional damages.[48]
[47] [2019] FCA 1383.
[48] At [39]-[43].
On the present application, the submissions by the parties concerning the proper construction of section 21 of the Act were relatively limited and did not extend, for example, to the New South Wales predecessor of section 23, the second reading speech of the Minister in introducing the Bill or any other potential extrinsic materials.
In the circumstances, I prefer not to express an opinion on the proper construction of section 21. For reasons that will become apparent, I am able to proceed on the assumption that section 21 permission is required by Dr Duffy.
Should section 21 permission be granted?
Google’s principal contention why section 21 permission should be refused is that there is no reasonable basis for the action. In this respect Google relies on the same arguments advanced in support of its application for summary judgment, which arguments I have rejected for the reasons given above.
The question whether section 21 permission should be granted is not merely the converse of the question whether summary judgment should be granted in favour of the defendant. Section 21 calls for the exercise of a discretion which is not limited merely to the question whether there is a reasonable basis for the action.
Google contends that permission should be refused because Dr Duffy has had her reputation vindicated, and received an award of damages, as a result of judgment in the first action. Assuming that Dr Duffy were to succeed in this action, it would entail that Google had defamed her years after the defamation the subject of the first action. The mere fact that her reputation was vindicated by judgment in the first action is not a reason to refuse permission, nor is the fact that she has already received an award of damages. Further defamation would attract a separate award of damages.
Ordinarily it might be expected that permission will fairly readily be granted in respect of publications that post-date the publications the subject of the earlier proceedings. I accept that in particular cases the court might regard a second set of proceedings as oppressive or of no practical utility to the plaintiff or an abuse of process. However, there is no reason in the present case to regard this action as falling into such a category.
Google observes that Dr Duffy has not requested the operator of the Ripoff Report website to remove reports about her. Google does not contend that the operator would in fact have removed any reports if requested to do so. The lack of a request by Dr Duffy is not a compelling factor in considering section 21 permission.
Google observes that the First Amendment to the Constitution of the United States enshrines a right of freedom of speech and it is possible that it might breach that right by blocking access to websites via the google.com website. No evidence was adduced that blocking would in fact infringe a Constitutional right of free speech, nor was a positive contention advanced that it would in fact do so. It may or may not be that Google advances this as a defence to the action insofar as it involves the United States domain or country edition but at this stage it is not a compelling factor in considering section 21 permission.
Google contends that since the judgment on liability in the first action (October 2015) it has on multiple occasions requested that Dr Duffy provide it with any URLs that are of concern to her so they could be considered for removal and, when she has done so, Google has acted. As observed above in the context of summary judgment issues, the evidence adduced by Google in this respect was very limited. That evidence does not demonstrate that Google has a defence to the action in respect of the causes of action pleaded or sought to be pleaded by Dr Duffy. Nor is it a compelling factor in considering section 21 permission.
Google points to the fact that the world wide web contains my reasons for judgment and those of the Full Court on appeal in the first action, numerous articles about those judgments as well as the Ripoff Report website itself and various other references to Dr Duffy and the subject matter of the ROR reports. This is likely to be relevant to the assessment of damages if Dr Duffy succeeds on liability at trial, but is not a compelling factor in considering section 21 permission.
Google contends that Dr Duffy’s expression of distrust of Google and willingness to litigate the case evidences that her ulterior purpose in prosecuting the action is to vex Google. There is no basis on which I could find that this action is an abuse of process because Dr Duffy is prosecuting it for an ulterior or improper purpose.
Weighing all of the circumstances, it is appropriate to grant permission to proceed with this action pursuant to section 21 of the Act.
Interlocutory injunction
Dr Duffy pleads that the first and second new ROR reports between them gave rise to 13 defamatory imputations. Dr Duffy seeks, amongst other relief, a permanent injunction restraining Google from publishing on, and requiring Google to remove from, the Google Sites any search results or Ripoff Report posts which contain any of those 13 imputations.
Dr Duffy seeks an interlocutory injunction restraining Google from publishing on the Google Sites any matter originating from the Ripoff Report website which contains any of those 13 imputations.
The question whether an interlocutory injunction should be granted involves consideration of whether there is a serious question to be tried and if so whether the balance of convenience lies in favour of granting or not granting the injunction.
Dr Duffy does not seek an interlocutory injunction preventing Google from publishing the new search results or the new ROR reports accessed thereby. Dr Duffy previously sought such an injunction but did not pursue that application.
The interlocutory injunction sought by Dr Duffy if granted would result in Google being in contempt of court if the operators of the Ripoff Report website were to change the URL in respect of the first or second new ROR report and Google’s search engine were to produce a search result with a hyperlink to them regardless of whether Google knew or ought to know of the existence of the new URL. Moreover, it would result in Google being in contempt of court if its search engine were to produce a search result with a hyperlink to any other of the existing Ripoff Reports containing one of the 13 imputations notwithstanding that Dr Duffy does not sue in respect of such reports. It would also result in Google being in contempt of court if its search engine were to produce a search result with a hyperlink to a new Ripoff Report posting containing one of the 13 imputations regardless of whether Google knew or ought to know of the existence of the new posting.
Dr Duffy does not have a sufficient prospect of obtaining a permanent injunction in the terms sought by way of interlocutory injunction to conclude that there is a serious question to be tried as to her entitlement to that relief (assuming that she is successful in this action). In any event, the balance of convenience clearly does not favour the grant of an interlocutory injunction in the broad terms sought by Dr Duffy.
For these reasons, and taking into account also the evidence adduced by Google in answer to the application for an interlocutory injunction, I refuse that application.
Conclusion
I grant permission to Dr Duffy to amend her statement of claim in terms of the proposed second statement of claim.
I grant permission to Dr Duffy pursuant to section 21 of the Act to proceed with the action on the basis of the second statement of claim.
I dismiss Google’s application for summary judgment.
I dismiss Dr Duffy’s application for an interlocutory injunction.
I will hear the parties concerning the precise form of the orders to be made to reflect these reasons for judgment and concerning costs and any other consequential matters.
- AGLC
- Duffy v Google LLC [2019] SASC 157
- Case
- [2019] SASC 157
- Decision Date
CaseChat Overview and Summary
The court had to decide several legal issues, including whether Dr Duffy needed permission to amend her statement of claim under section 21 of the Defamation Act 2005 (SA), whether there was a reasonable basis for Dr Duffy's defamation claim against Google, and whether an interlocutory injunction should be granted to restrain Google from publishing defamatory content from the Ripoff Report website. The court considered the principles governing summary judgment and interlocutory injunctions, including the requirement for there to be no reasonable basis for the claim or defence and the need for the court to assess whether the claim or defence has reasonable prospects of success.
The court found that Dr Duffy did not need permission to amend her statement of claim under section 21 of the Defamation Act 2005 (SA) as the amendment did not introduce new claims but rather clarified and supplemented the existing allegations. The court further determined that Dr Duffy's defamation claim had reasonable prospects of success as the defamatory content had been published by Google and was accessible via search results. Consequently, the court denied Google's application for summary judgment. Regarding the interlocutory injunction, the court held that there was no immediate threat to Dr Duffy's reputation that warranted an injunction at that stage of the proceedings.
The court's decision concludes that Dr Duffy is granted permission to amend her statement of claim and to proceed with the action. Google's application for summary dismissal is dismissed, and its application for an interlocutory injunction is also dismissed. The court's final orders allow Dr Duffy to continue with her defamation action against Google, with the opportunity to present her amended statement of claim.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.