It is well established under Australia law that secondary publishers can be held liable for defamatory material if they had actual or constructive knowledge of the defamatory matter. This was the crux of Dr Janice Duffy’s multi-year legal battle in the Supreme Court of South Australia with internet search giant, Google.
The situation began in 2007, when defamatory material was published about Dr Duffy on the popular website Ripoff Report. Material on this website, which allows users to post complaints about companies and individuals, connected Dr Duffy with a range of harmful accusations, all of which Dr Duffy said were unfounded. It is thought that these accusations were a form of retaliation against Dr Duffy after she posted negative comments about Psychics on the same website.
Ripoff Report articles tend to achieve a high ranking in Google search results. This was especially true for Dr Duffy who, in 2009, asked Google to remove the relevant Ripoff Report URLs from its search results. This request was initially ignored, and action to remove the URL was only taken by Google in November 2011, months after Dr Duffy filed her lawsuit.
Soon after contacting Google, Dr Duffy also noticed that Google had developed an auto-link when searching her name, linking her name to the words ‘Psychic Stalker’. Dr Duffy made a further request to have this auto-link removed, however once again her complaints were ignored.
In 2011 Duffy filed a lawsuit against Google alleging defamation, claiming she suffered both financial and psychological damage as a result of the defamatory material. Google disclaimed liability on the basis that they did not publish the relevant content.
In his 144-page decision released on October 27th 2015, Justice Blue noted that it is “well established” in Australia and indeed globally that search engine operators such as Google are recognised secondary publishers. In this way, if Google had knowledge of the defamatory matter and failed to remove it, they could be found liable for defamation as a secondary publisher.
Google was ultimately found liable for defamation. In his decision, Justice Blue reasoned that Google was clearly aware of the defamatory content after receiving Dr Duffy’s messages requesting its removal. As such, the ‘continuing existence’ of the material on the Google search engine was the ‘direct result of human action or inaction’. Google was ordered to pay $115,000 (AUD) in damages and interest to Dr Duffy.
Dr Duffy’s lawsuit was yet another significant blow for the search engine giant. Since 2006, Google has faced a range of defamation cases both within Australia and globally. In 2009 a Victorian music promotor successfully sued Google for $200,000 after Google search results linked him with several crime figures, thus gravely damaging his reputation. In addition, a French insurance company was awarded $65,000 in damages in 2013 after the search engine auto-linked the companies name with the word ‘crook’.
Lesson for Business
The lesson for any business with a web profile is that on line defamation is a real and material issue. Constant vigilance is required to ensure that your on-line presence is not affected by the direct or indirect publication of defamatory material. A business can be held liable whether they are the primary publisher of the material, or a secondary publisher who just allows someone else’s material to remain ‘alive’ on their website or blog.
By Tal Williams, Partner and Lucy Williams, Paralegal