Case Law, Canada: Niemela v Google Inc, British Columbia Court dismisses claim for worldwide libel injunction against Google – Hugh Tomlinson QC and Sara Mansoori

24 07 2015

Google-Logo-Stone-WallIn the case of Niemela v Google (2015 BCSC 1024) the Supreme Court of British Columbia dismissed a claim for a worldwide interim libel injunction against Google by a Vancouver lawyer who had been subject to online abuse by someone he alleged to have been a former client.  The Judge entered summary judgment for Google on the whole action.

Background

Mr Niemela had been the victim of campaign of vilification, harassment and extortion attempts for nearly 3 years. In 2012 defamatory posts appeared on various internet sites, including ripoffreport.com and reviewstalk.com.

He believed that a former client, Strato Malamas (alleged to be associated with the Hells Angels) was responsible.  Mr Niemela reported the matter to the police who spoke to the suspect.  The extortion attempts and defamatory postings ceased.

However, the posts remained on the internet and turned up whenever there was a search against Mr Niemela’s name.  He believed that they had damaged his legal practice.  As a result, he commenced two actions for defamation.

The first action was against Mr Malamas and a number of John Doe defendants.  The second action was against Google for publishing snippets containing defamation postings.

In the first action Mr Niemela obtained orders requiring the content of 146 URLs to be removed.  Although the orders were not made against it, Google agreed to remove these URLs from search results on google.ca.

Mr Niemela applied, in the first action, for a mandatory injunction against Google to compel it to block search results of 146 websites worldwide (although Google was not a party to that action).  He relied on the decision in Equustek Solutions Inc. v. Jack2014 BCSC 1063.

In the second action, Google made a cross-application for summary judgment.

Judgment

The Judge began by considering Mr Niemela’s injunction application.

In order to obtain an injunction against Google, Mr Niemela was required to meet the three part test set out by the Supreme Court of Canada in RJR-MacDonald v. Canada (Attorney General) ([1994] 1 S.C.R. 311) – modified for defamation cases by the decision Canada (Human Rights Commission) v. Canadian Liberty Net, ([1998] 1 S.C.R. 626), namely

  1. that the words complained of were manifestly defamatory;
  2. that a failure to grant the injunction will result in irreparable harm; and
  3. that the balance of convenience favours granting the injunction.

The held that the injunction application failed on the second and third steps.

First, there was insufficient evidence of irreparable harm ([24]). The evidence from Google was that 90% of searches for Mr Niemela on its platforms originated from google.ca.  There were other possible explanations for the decline in Mr Niemela’s law practice, in particular, a prominently displayed disciplinary history with the Law Society [28].

Second, in contrast to the position in Equustek, the 146 URLs had not been replaced by new, high-ranking, URLs [29].

Third, there was the fact that Mr Niemela had waited 2 years to apply for an interlocutory injunction.

Finally, the Court was reluctant to make an order that could not be complied with.  Mr Niemela accepted Google could not comply with an order compelling it to block defamatory search results in the United States and would not enforce a foreign judgment which would violate free speech rights [33].

As a result, the Judge concluded that it was not “just or convenient” that an order should be made [35]

The second application was by Google for summary judgment on the basis that there was no genuine issue to be tried in respect of Mr Niemela’s claims for breach of the Privacy Act, libel and injurious falsehood.

The first claim was dismissed on the basis that there was no breach of privacy and the concept of privacy was not to be conflated with that of reputation [50]

In relation to the claim for libel, the Judge considered two issues in relation to publication.

First, she held that Google was not a publisher of the text found at URLs identified in search results.  She held that this claim could not succeed in the light of the decision of the Supreme Court in Crookes v. Newton2011 SCC 47 ([56] to [60]).

Second, she considered the question as to whether Google was the publisher of the “snippets” attached to the search results.  This was, as the judge acknowledged, a novel question in British Columbia ([62]).

The Judge held that the following material facts were not in dispute ([72])

  • Search results and ‘snippets’ on Google’s websites are generated automatically through the operation of computer algorithms in response to search terms inputted by users.
  • Google’s proprietary algorithm is programmed by Google to rank search results according to their probable perceived relevance to users.
  • Google maintains different search platforms for different countries and search results may vary from platform to platform.
  • The search results generated by the algorithm are generated from the automated review of more than 60 trillion websites. They are continuously updated and may vary from hour to hour or even from minute to minute.
  • Google’s search platforms provide a means for internet users to locate websites hosted by third parties that may be of interest to the user.
  • Google does not promote or endorse particular search results. It neither warrants the reliability of websites generated in search results nor cautions the user that the authors of statements found on websites may not be trustworthy.
  • Google does not amend search results for commercial gain.
  • A single page of search results generally displays 10 results, with hyperlinks to third party websites accompanied by snippets of text from those sites. More results are displayed on further pages.
  • Pages may include third party advertising which is identified as such.
  • Search results reflect the content of third party websites at the time the sites were last crawled by the computers processing Google’s search algorithm. Changes in the site by the third party host may not be reflected in search results until the page is crawled again by Google’s computers processing the algorithm. Google does not control the content of third party websites, nor changes to those websites.

The Judge noted that in some jurisdictions such as Hong Kong, New Zealand, and Australia (in the Supreme Court of Victoria) the Courts have declined to determine a similar question on a summary application:  Dr. Yueng v. Google Inc., [2014] 4 HKLRD 493; A. v. Google New Zealand Ltd., [2012] NZHC 2352 at para. 71; Trkulja v. Google Inc. (No. 5), [2012] VSC 533).

However, in other jurisdictions, notably England and Wales (Metropolitan Schools v v. Designtechnica Corp [2011] 1 WLR 1743) and in New South Wales in (Bleyer v. Google Inc. [2014] NSWSC 897)  the courts have addressed this question on a summary basis and had decided that Google was not a publisher.

The Judge considered that she was in a position to determine the issue by way of summary judgment as she had the factual framework to do so and the legal issue, namely “is Google the publisher of snippets” could be determined.

Mr Niemela submitted that Google was a publisher of the snippets because it intended to create webpages containing lists of hyperlinks and snippets and it should be responsible in law for acts done by its ‘tool’ relying on Trkulja. In that case Beach J had decided it was open to the jury that Google was as publisher of the search results.

However the English decisions of Bunt v Tilley ([2007] 1 WLR 1243) and Metropolitan International had expressed a contrary view. In Metropolitan Schools Eady J had held that the act of publication giving rise to liability in defamation required a mental element. And that the generation of search results and snippets by an automated process could not constitute “knowing involvement in the process of publication of the relevant words” [83]-[84]. The Judge described this as the development by Eady J of a “passive instrument” test [85].

This reasoning was followed by the Supreme Court of Canada in Crookes which concerned hyperlinks, although, as the Judge noted, the narrow ratio of that case was that providing a hyperlink does not constitute publication of the article to which the hyperlink leads. Crookes did not address snippets and indeed Abella J. stated

“Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker”. [Emphasis added.] [42]

The Judge noted the interest in freedom of expression [95]. She noted that without snippets navigating the Internet would be much more difficult [102].  It was not reasonable to expect a search engine that automatically trawls trillions of webpages in seconds to pre-vet for defamatory comment [104]. Google had not authorized the appearance of the snippets on the user’s screen “in any meaningful sense” but had “merely, by the provision of its search service, played the role of a facilitator” (relying on Metropolitan Schools).

Accordingly the Judge concluded that Google was a passive instrument and not a publisher of snippets [107], although she emphasised that she had not been asked to consider whether Google could be a publisher of snippets and search results after notice of defamatory content [108].

As a result of the Judge’s decision on publication, the claim for injurious falsehood had no prospects of success, as publication was an essential element of the tort [110].

Google therefore succeeded in its application for summary judgment.

Comment

It is interesting to compare this decision with that of the same judge, Madam Justice Fenlon (appointed to the Court of Appeal of British Columbia on 15 June) in the Equustek case.

In Equustek the Judge made a worldwide order against Google – which was upheld by the Court of Appeal (see the Inforrm case note).  However, in this case, the injunction was refused.  In Equustek a worldwide order was the only practical way to protect the claimant’s rights.  In this case, Google had blocked the offending URLs and new defamatory postings were not being made.  The continuing damage appeared to be very limited indeed.

This is another chapter in the continuing attempts by the common law to grapple with the issues which arise from the operation of Google’s search engine.  Although this case is consistent with the majority of common law jurisdictions in adopting the requirement that a publisher must be more than a “passive instrument” the issue has still not been definitively decided at the appellate level.

The Judge’s decision that Google was not a publisher of the snippets was strongly influenced by her views to the practical difficulties of detecting and screening out the defamatory words complained of, an issue which does not appear to have been explored in the evidence and which, in the light of admissions made by Google in recent English cases, may not be justified.

The Judge made it clear that she was not considering the question as to whether Google could be the published of snippets and search results after notice of defamatory content [108].  In such cases, the Judge’s reasoning suggests that Google would be considered to be a publisher of snippets.

On the assumption that this decision is not appealed the next chapter in the “Is Google a publisher?” story would appear to be the decision of the Court of Appeal in Hong Kong in the Dr Yeung case (permission having been granted on 29 October 2014, see [2014] HKCFI 1947).  The hearing is expected to take place later this year.


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