Thursday, November 9, 2017
A recent decision in the Supreme Court of South Australia is a warning shot across the bow of publishers of online content. Hannah Marshall and Daisy Von Schoenberg from Marque Lawyers explain.
The latest defamation case about Google's search engine results has just come out. It's a warning to search engines and online publishers generally, and a nod to defamation litigants everywhere to pursue them.
It all started when Dr Janice Duffy, a medical researcher, consulted some online psychics about her love life. After the psychics' predictions didn't eventuate (shock!) Dr Duffy posted negative reviews about the psychics on a website called the Ripoff Report (who'd have thought psychics might be a rip-off?).
The psychics responded with posts labelling Duffy a “psychic stalker".
Because of this, a Google search of her name started returning results with extracts of the articles calling her a psychic stalker, and its autocomplete function offered the words psychic stalker after her name.
Dr Duffy asked Google to remove all that. Google refused. Litigation ensued.
This latest judgment was Google's appeal of the original judgment, in which it lost and Dr Duffy won $115,000 in damages.
You might think that a payment of $115,000 would be immaterial to a multinational tech company like Google, but the broader implications for its business and other online intermediaries were huuugggeee.
The legal question was whether Google was a publisher of the search engine results in a way that makes it liable for defamation. Here's the short version of the appeal court's answer.
Google said it was not a publisher of the defamatory results because its algorithms automatically produce results at the request of users, performing over 100 billion searches every month.
The court accepted this, and found that Google was not liable for the results prior to it being made aware that they were defamatory. However, the court also said that once Dr Duffy notified Google of the defamatory material, its failure to remove the results amounted to further publications of the defamatory material.
This largely reaffirms the position of secondary publishers like search engines, or hosts of user generated content like chat rooms, Facebook page operators, or any news or other sites with user comments.
Once you know, or should reasonably know, that material is defamatory, then you can be liable for publishing it.
What happens now? Keep your eyes and ears peeled for a High Court appeal by Google. Our bet is that the mega search engine is not going to roll over on this decision lightly.
In the meantime, if we were Google we'd be reviewing our complaints handling procedures very carefully.