On 27 October 2015 Mr Justice Blue, sitting at first instance in the Supreme Court of South Australia, handed down judgment on liability in the defamation case of Duffy v Google Inc ( SASC 170). He held Google Inc liable for the defamatory content of the hyperlinks and snippets returned by way of Google search results on the Claimant’s name and for the defamatory content of search autocompletes relating to her. Perhaps more controversially, Google was also held liable as a republisher of the defamatory content of third party websites hyperlinked on its search results.
The Claimant, Dr Janice Duffy, had consulted a series of online psychics via a website called Kasamba. She later complained about some of them, including by posting reports and comments on a website called “Ripoff Report”. Dr Duffy also created a chat group on yahoo.com under the name “kasambavictims” and posted its internet address on the Ripoff Report website.
Thereafter, a number of reports and comments were posted on the Ripoff Report website naming Dr Duffy and making allegations against her (“the Ripoff Report material”). Dr Duffy then became aware that searches for her name on Google’s search engines resulted in the display of extracts from and hyperlinks to the Ripoff Report material. She notified Google of the material that she claimed was defamatory of her and requested removal of that material. Google declined the request.
Dr Duffy then brought proceedings for libel, pleading a broad range of defamatory imputations including that she stalked psychics; obsessively and persistently harassed psychics; fraudulently and/or maliciously accessed other people’s electronic emails and materials; spread lies; threatened and manipulated other people; was an embarrassment to her profession; misused her work email address for private purposes and engaged in criminal conduct.
Her claim was subsequently amended to incorporate an additional cause of action arising from the fact that searches for her name on Google resulted in the display by Google’s Autocomplete utility of the alternative search term “janice duffy psychic stalker”.
Google denied publication and denied that the material displayed on or linked from its websites gave rise to the pleaded defamatory imputations. It also relied on defences of innocent dissemination, qualified privilege, justification and contextual truth. The trial of the action encompassed these liability issues, leaving for a subsequent trial other issues broadly relating to damages.
In a lengthy judgment containing a comprehensive review of common law authorities on liability for publication and online publication in particular, Mr Justice Blue found that Google was a publisher of the material complained of. He further found that the imputations pleaded by Dr Duffy did arise from the material published and that none of the defences relied on by Google were made out. This case comment focuses on the findings relating to publication.
Preliminary observations on publication
The Judge began by observing that publication involves both a physical and a mental element .
In relation to the physical element, the defendant, by his or her conduct must objectively participate in communication of the work to a third party. Participation is sufficient if the defendant takes one step in the overall process of communication that requires concurrent or cumulative steps by others .
As to the mental element, the defendant must intend or know that the work will be communicated to a third party or is reckless or careless as to such communication occurring as a result of her or his conduct. At common law, however, a distinction is drawn between a primary participant in publication and a secondary participant . A primary participant is liable for a publication regardless of whether she or he knows or ought to know of the defamatory matter within the work. A secondary participant is not liable for a publication if he or she did not know and could not with the exercise of reasonable diligence have known of the defamatory matter within the work, although the onus is on the defendant to establish this .
The Judge rejected Google’s contention that to be a publisher a defendant must expressly or implicitly authorise the publication of the defamatory matter . In this respect Google relied upon cases that have considered the liability of an occupier of a building or structure for defamatory material placed there without the permission or knowledge of the occupier but who does not remove the material after learning of its existence, including the familiar case of Byrne v Deane  1 KB 818.
The Judge considered that whilst such a test is apposite when the defamatory matter is physically attached to the defendant’s property without the defendant’s knowledge or permission, it was not so when the defamatory matter is disseminated by the defendant itself and is inconsistent with the innocent dissemination doctrine. For such cases, the appropriate test remains whether the defendant has participated in the publication .
Issues for determination
The Judge identified three issues that arose for determination on Dr Duffy’s case on publication against Google.
First, that Google had published search results on Dr Duffy’s name in the form of title, snippet, URL that contained text from and hyperlinks to 16 external webpages which results were themselves defamatory of her.
Second, that by reason of the publication of such text and hyperlinks to the Ripoff Report material on its search results, Google was a republisher of the Ripoff Report material on the external webpages.
Third, that Google published the words “janice duffy psychic stalker” by its Autocomplete utility.
The Judge reached the following conclusions.
(1) Search results ( to )
The first issue that was whether the search results displayed by the Google websites to users in response to searches for Dr Duffy’s name were published by Google. An example of such a result was as follows:
R1 Ripoff Report Janice Duffy – Psychic Stalker Psychics Beware Of…
Dr Janice Duffy is truly an embarrassment to her profession as a Senior Researcher in Adelaide Australia #2 Consumer Comment. Respond to this report…
The Judge found that Google was the sole operator and controller of the Google website . The words complained of resided on Google’s website. They were communicated by Google to the user conducting a search. Google played a critical role in communicating them to the user. He therefore held that the physical element of publication was present. Google did not play the passive role of a mere conduit such as an internet service provider who merely provides access to the internet or a telecommunications carrier who merely provides access to the telephone network. Google played an active role in generating the words and communicating them to the user. The mere fact that the words were programmed to be generated because they appeared on third party webpages made no difference to the physical element. It made no difference to the physical element whether a person directly composed the words in question or programmed a machine which does so as a result of the program.
As to the mental element, the Judge found Google intended to publish the words complained of to the user . However, because Google was a secondary not a primary publisher of those words, it was also necessary to establish that Google knew or ought to have known of the existence of them. Accordingly, Google could not be regarded as a publisher prior to receiving notification from Dr Duffy. If, however, Google acquired knowledge of the words complained of by reason of Dr Duffy’s notifications and failed to remove them within a reasonable time thereafter, the necessary mental element would be present. The Judge held that the mere fact that the words complained of were generated automatically by Google’s software programs did not prevent Google being a publisher of them after notification since their continuing existence thereafter was the direct result of human action or inaction rather than merely the result of machine operation. Approaching the question from first principles, Google was a secondary publisher after notification and lapse of a reasonable time to allow for their removal (if that occurred).
Accordingly, the Judge concluded that Google was a publisher of the search results relating to Dr Duffy if and to the extent that Google failed to remove them after a reasonable time elapsed after effective notification by her .
(2) Hyperlinked material ( to )
The second issue was whether the content of the external webpages was republished by Google when users clicked on hyperlinks displayed by the Google website when conducting searches for Dr Duffy’s name.
Referring again to the example search result reproduced above, the Judge considered that in the case of the URL contained within it, it was necessary to have regard to the text of the title and the snippet in conjunction with the fact that the title functions also as a hyperlink. The text and the hyperlink comprise an integrated whole. The text says that Dr Duffy is a stalker of psychics of whom psychics should beware and offers by clicking on the title on the Google webpage to deliver to the user the Ripoff Report webpage that provides more detail. The user does not need to enter the URL into the user’s web browser; the Google website is programmed automatically to cause the browser to display the Ripoff Report webpage by clicking on the hyperlink. In these circumstances, the Judge held that Google was a republisher of the Ripoff Report webpage if and to the extent that Google failed to remove the paragraph incorporating the hyperlink after a reasonable time elapsed after effective notification by Dr Duffy.
The Judge also considered, however, that if the search of Dr Duffy’s name had merely returned the URL of the Ripoff Report webpage without functioning as a hyperlink and without accompanying text, it could not be said that Google was a publisher of the content of that material. To access the first Ripoff Report webpage, the user would need to enter the URL into the address box of the internet browser. Google’s conduct in such a case would be analogous to that of a library catalogue that lists details of an allegedly defamatory book and external libraries at which the book can be found. It would be analogous to the author of an article including an allegedly defamatory book in the bibliography section without comment.
He went on to state that the position would be more complex where a search of Dr Duffy’s name had returned the URL of the Ripoff Report webpage functioning as a hyperlink to an external webpage but without accompanying text. By providing the hyperlink, Google’s software plays an essential role in the delivery of the content of the webpage to the user upon request. On the one hand, it might be argued that Google is analogous to a newsagent who upon request delivers a free newspaper or to a pamphlet distributor at the street corner both of whom are conventionally regarded as secondary publishers, and that Google is a secondary publisher if it failed to remove the paragraph incorporating the hyperlink after a reasonable time elapsed after effective notification. On the other hand, it might be argued that there is insufficient material difference between this situation and the situation referred to in the previous paragraph in which Google is not a publisher. It was not, however necessary to decide that question in this case.
(3) Autocomplete utility ( to )
The third issue was whether the generation by the Google websites of the words “janice duffy psychic stalker” when a user entered the search term “Janice Duffy” was a publication by Google after notification and failure by Google to remove it within a reasonable time thereafter.
The Court found that the words “janice duffy psychic stalker” were generated by Google’s programs as a result of Google’s programming. The Judge held however that the mere fact that the words are programmed to be generated because the user or others have previously searched for those words made no difference to the physical element of publication. The mental element would be present if Google failed to remove the words within a reasonable time after notification.
The Judge noted that the fact that a search engine operator or website forum host is only a secondary publisher is now well established, citing a number of authorities including Godfrey v Demon internet Ltd  QB 201 and Tamiz v Google Inc  EWCA Civ 68;
Under the secondary publisher doctrine, a secondary participant is not liable for a publication if he or she did not know, and could not with the exercise of reasonable diligence have known, of the defamatory matter. The onus of proof lies on the secondary publisher to prove no actual or constructive knowledge of the defamatory matter.
The Judge found that Dr Duffy had provided adequate notification of the defamatory material giving rise to the first and second issues by the provision of the URLs of the external webpages containing it rather than the consequential snippets and hyperlinks generated from them. He made further findings to the effect that a reasonable time for removal was approximately one month after notification. Similarly Judge found that a reasonable time for the removal of the autocomplete term “Janice duffy psychic stalker” was one month. Google did not adduce any evidence on the issue of how long was needed to remove autocompletes in practice.
Google also contended that in order for it to be liable as a secondary publisher it was necessary to show that it knew or ought to have known that the words complained of were actionable or otherwise unlawful as defamation, ie, that it knew or ought to have known that all of the ingredients of the cause of action were present and all defences negated. In particular it argued that the innocent dissemination defence applied unless it knew or ought to have known that the defamatory passages were false.
The Judge gave these contentions short shrift, holding that they were contrary to the underlying rationale for the innocent dissemination doctrine – being that a secondary participant ought not to be liable for material of which the participant is reasonably unaware, and to the clearly established principle that the test for justification is purely objective and independent of the defendant’s knowledge or belief of the truth or falsity of the relevant imputations.
For the English lawyer, this judgment provides an interesting snapshot of the development of the common law on liability for internet publication unencumbered by the restrictions on liability imposed by the Electronic Commerce (EC Directive) Regulations 2002 Articles 12 to 15, section 1 of the Defamation Act 1996 or sections 5 and 10 of the Defamation Act 2013.
It clearly has far-reaching implications for the development of the law in Australia, with at least one law firm asking “is the end of the internet as we know it?” and pointing out the potential for abuse by plaintiffs looking to silence what may be legitimate and justified online criticism and commentary. As well as finding Google liable as publisher, the Judge also declined to adopt a new category of qualified privilege for search engine operators. In the circumstances, it would be surprising if Google does not seek permission to appeal.
The judgment on liability for hyperlinks is not so dramatic as it may first appear. Liability was established on the basis that the hyperlink and its surrounding text were defamatory, thus taking Google clearly beyond the bounds of mere indexing. The Judge expressly left open the question of liability in the situation where a search result merely returns a non-defamatory hyperlinked URL and nothing more.
This issue did, however, arise in Crookes v Wikimedia Foundation Inc  SCC 47, (2011) 337 DLR (4th) 1. In Crookes, the defendant had written an article which contained without comment or explanation a hyperlink from the Claimant’s name “Wayne Crookes” to an article on a website http://www.usgovernetics.com which the Claimant maintained was defamatory of him. Abella J in the Supreme Court of Canada (with whom 5 other judges agreed) held that making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. She went on to state that 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. The reasoning for this was that a reference to other content is fundamentally different from other acts involved in publication. Referencing on its own does not involve exerting control over the content. Communicating something is very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not.
For those outside Australia, the case aptly illustrates the inefficacy, from a claimant’s point of view, of Google’s policy of only removing links from search results emanating from the country in which the claimant brings her claim. Whilst the autocomplete on “Janice Duffy” now merely returns inoffensive content, the search results on a UK browser contain material which if not the material complained of, is very similar to it, including at least one direct link to the Ripoff Report material. Further, the electronic copy of the judgment itself contained active hyperlinks to it.
Finally, it is worth noting that the judgment contains what has been described as a “treasure trove” of Commonwealth law summarising decisions on the liability of internet intermediaries and service providers for defamation committed or facilitated by their online activities.
Lorna Skinner is a barrister at Matrix Chambers, specialising in media and information law.