(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Hinton)
4 October 2017
DEFAMATION - PUBLICATION - GENERALLY - INTERNET PUBLICATIONS
DEFAMATION - PUBLICATION - GENERALLY - REPUBLICATION
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - IN GENERAL
DEFAMATION - JUSTIFICATION - TRUTH - SUBSTANTIAL TRUTH AND CONTEXTUAL TRUTH
DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT - IN GENERAL
Appeal against a judgment that Google Inc (the appellant) defamed Dr Janice Duffy (the respondent) by publishing information which was the result of using the appellant’s search engine to search the respondent’s name.
The respondent paid for and received psychic readings over the internet. Those readings were false. The respondent engaged in an online conflict with the psychics. Defamatory articles about the respondent, calling her among other things a ‘psychic stalker’ and referring to her conflict with psychics were published on a website called the Ripoff Report (the Ripoff Reports). Other websites published material which derived from articles on the Ripoff Report (collectively the underlying webpages). When the appellant’s search engine was used to search the respondent’s name it reproduced content from, and hyperlinked to, the underlying webpages (the paragraphs). The Autocomplete function of the search engine also produced an alternate search term ‘Janice Duffy Psychic Stalker’.
In September 2009, the respondent requested that the appellant remove the paragraphs. The appellant did not take steps to remove the paragraphs until March 2011.
The Judge found that the appellant was a secondary publisher of some of the paragraphs from the time that the respondent had notified it that the search engine was producing the paragraphs. The Judge found that no relevant defences had been established. In a later trial, the Judge awarded the respondent $115,000 inclusive of interest in general damages but did not make an award for loss of earning capacity.
The appellant appeals the Judge’s findings as to liability. The respondent cross-appeals the quantum of damages and seeks a higher award.
Held per Kourakis CJ (Peek & Hinton JJ agreeing):
(1) The Judge was correct to find that the appellant was a secondary publisher of the relevant paragraphs and knowledge of those search results should not be attributed to the appellant until notice is given.
(2) The search results published by the appellant incorporated the defamatory material contained in the Ripoff Reports because it facilitated the reading of the defamatory material in a substantial and proximate way.
(3) The fact that the defamatory imputations were contained in search results which repeated material from the underlying pages does not deny their capacity to convey a defamatory meaning.
(4) To justify the imputation that the respondent stalked psychics the appellant had to show that the respondent persistently did, or had a strong proclivity to, make unlawful or improper posts on the internet which were calculated to shame or denigrate psychics or cause them substantial distress. On the facts the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Google Inc v Duffy [2017] SASCFC 130
Case
[2017] SASCFC 130
Decision Date
CaseChat Overview and Summary
The Full Court of the Supreme Court of South Australia heard an appeal by Google Inc. against a judgment of a single judge who had found Google liable for defamation concerning certain search results generated by its search engine. Dr. Duffy, the respondent, alleged that Google had published defamatory material about her by making it accessible through its search engine.
The central legal issues before the Full Court were whether Google had published defamatory material, and if so, whether it could rely on any defences, such as qualified privilege or justification. Specifically, the court considered whether Google's act of providing search results that linked to defamatory content constituted publication in the legal sense, and whether Google had taken reasonable steps to remove the defamatory material once notified. The court also examined the application of the defence of qualified privilege to internet search engines and the requirements for establishing substantial truth or contextual truth as a defence.
The Full Court affirmed the trial judge's findings that Dr. Duffy had provided Google with sufficient notice of the defamatory material and that Google could have reasonably prevented its search engine from generating the offending results within a specified timeframe. The court held that a search engine operator can be liable for defamation if it publishes defamatory material and fails to take reasonable steps to remove it after receiving notice. The court found that Google's provision of search results linking to defamatory content constituted publication. Furthermore, the court determined that Google had not established a defence of qualified privilege, as the circumstances did not meet the requirements for such a defence in relation to the publication of defamatory material by a search engine.
The Full Court dismissed Google's appeal, upholding the trial judge's finding of liability and the assessment of damages. Google was ordered to pay the costs of the appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The Judge found that Dr Duffy’s email of 8 September 2009 provided sufficient information to enable Google to prevent its search engine from producing paragraphs which reproduced parts of the relevant Ripoff Reports. The Judge also found that on 22 September 2009 Dr Duffy provided sufficient information for Google to prevent the generating of paragraphs referring to the 123 People webpage. Neither finding is challenged. The Judge found that Google could reasonably have prevented the search engine from doing so by 7 October 2009. That finding is not challenged. Dr Duffy complained faintly that less time might have been allowed but any lesser period would only marginally affect the quantum of damages.Direct and circumstantial evidence of publication Apart from her own searches, Dr Duffy also adduced direct evidence of the publication of the results of a Google search of Dr Duffy’s name from the witness Theresa Palumbo, who was Dr Duffy’s hairdresser. Ms Palumbo’s evidence was accepted by the Judge. A statement given by Ms Palumbo was received into evidence as exhibit P15. Ms Palumbo states that she knew that Dr Duffy was a health researcher and had researched chronic lung disease and the health effects of smoking. Ms Palumbo was aware that Dr Duffy had published papers with ‘a professor who was a leading expert in this field in Australia’. Ms Palumbo’s statement records that when Dr Duffy attended to have her hair done on 25 June 2010 they discussed Ms Palumbo’s desire to give up smoking. The statement records that Dr Duffy suggested that Ms Palumbo search the internet for details of the professor to access his published work. The statement continues that when Ms Palumbo decided to conduct the search that night she could not remember the professor’s name. She then typed the words or some combination of the words ‘Dr Janice Duffy’ into the search engine. The search results revealed paragraphs referring to Dr Duffy as an ‘Australian psychic stalker’. In her evidence, Ms Palumbo gave a slightly different account in answer to questions directly from Dr Duffy, who was then representing herself, omitting any reference to attempting to search for the professor’s name. QYou have been my regular hairdresser ever since [2009].AYes.QI haven’t deserted you. Now you were aware of like girls talk at hairdressers and you know I chat etc. You were aware of my WorkCover issue.AYes.QBut you were also aware of the nature of my work at that time.AYes.QAnd what was that.AYou were a researcher Health Department [sic].QInto COPB, I mean you know lungs. AYes.QDid we have an occasion to have a discussion sometime in the middle of 2010.AYes, we did because I was in the middle of trying to give up smoking.QIt’s hard I know.AAnd I booked an Allen Carr Seminar and I happened to tell you about it and you mentioned that you published a paper on the effects on smoking on lungs.QDid I say, you know, give any details about the publication.AYou said that if I wanted to look at it that I could look it up on line, so I Googled it.QNow what did you actually Google.AI Googled Janice Duffy.