It is the first application of the Jameel principle in Australia. It also takes a different view to the most recent Australian decision on the issue of whether Google is liable as a publisher for allegedly defamatory snippets generated as a result of users’ searches.
Bleyer brought his claim in the NSW Supreme Court over seven items published as Google search results to three people.
Two of the alleged recipients were located in Victoria, with only the other one being in NSW.
After the first two downloads, Bleyer contacted Google to put them on notice about the allegedly defamatory search results.
Google applied for a permanent stay or dismissal of the proceedings as an abuse of process.
This squarely presented the issue of whether the Jameel principle should be recognised in NSW.
In Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75, Lord Phillips of Worth Matraver MR (pic) giving the judgment of the Court of Appeal, found that a defamation claim could be struck out as an abuse of process if it did not disclose that “a real and substantial tort” had been committed within the jurisdiction.
In that case, there were only five downloads in England, three of which were by agents or associates of the claims.
Justice McCallum noted that there had been some consideration, largely incidental and to variable effect, as to whether the approach in Jameel should be applied in NSW.
Her Honour did not accept that Jameel was distinguishable on the basis that the decision was founded upon the particular requirements of the Human Rights Act 1998(UK), which obviously have no analogue in NSW.
Instead, Justice McCallum looked to the Civil Procedure Act 2005 (NSW) and theUniform Civil Procedure Rules 2005 (NSW). She asked:
“Can it seriously be doubted that the power conferred by s 67 can properly be exercised to stay proceedings in which the resources required of the court and the parties to determine the claim are vastly disproportionate to the interest at stake?”
Clearly it could not.
One difference between Australian and English defamation law, which might have given a judge pause when applying the approach in Jameel in Australia, is the availability of a defence of triviality under the Defamation Act 2005 (NSW) s 33 and equivalent provisions in the other states and territories.
Justice McCallum found that the defence of triviality should not stop an Australian court from applying the approach in Jameel because “defences protect defendants”, whereas what was at issue in the application was the court’s power to protect the integrity of its own processes.
With respect, the reasoning of Justice McCallum is compelling.
There needs to be some de minimis standard before a court’s resources should be deployed to deal with a claim.
The defence of triviality is not necessarily the most effective mechanism for weeding out trivial defamation claims.
The presence of this defence might deter some prospective plaintiffs from bringing a claim but once proceedings have commenced, the defence is only likely to be engaged at a later stage, after the preliminary skirmishes are over and liability has been determined.
Courts and defendants should not be forced to expend vast resources to deal with claims which will provide redress for relatively minor harms.
If Justice McCallum’s reasoning is accepted and adopted in Australia, it may not be limited to defamation claims.
English courts have applied the Jameel principle to cases involving other causes of action.
There is nothing special about defamation that means that this approach cannot be of wider application.
The second interesting and related aspect of Justice McCallum’s judgment is her Honour’s treatment of the issue of whether Google is a publisher of the search engine results.
This led her to review the growing case law on the liability of internet intermediaries as publishers for the purposes of defamation law.
Justice McCallum found that, prior to receiving notice from Bleyer, Google was not liable for publishing defamatory snippets.
The position may have changed after receiving notice.
Her Honour’s view on this issue differs from that reached by Justice Beach in Trkulja v Google Inc (No 5) [2012] VSC 522.
In that case, his Honour found that Google could be held liable as a publisher because it had established its automated systems and they were operating in the way that Google intended, thereby presenting the defamatory snippets to searchers.
Justice McCallum’s view on this issue is to be preferred.
Not every act of dissemination can or should lead to liability for publishing defamatory matter. There have to be limits to liability for publication.
Internet intermediaries present acute difficulties in relation to the issue of whether they are publishers for the purposes of defamation law.
More fundamentally, the concept of publication, especially its limits, has not been as fully explored as it might have been.
Justice McCallum’s judgment in Bleyer v Google will not be the last word on whether an internet intermediary is a publisher.
Sooner rather than later, though, a higher court will no doubt be forced to grapple with this complex but important issue.
*Dr David Rolph lectures in media law at the University of Sydney Law School and is the editor of the Sydney Law Review. He is the author of Reputation, Celebrity and Defamation Law (Ashgate 2008).
This article was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.
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