Defamation / Reputation
Afanasyev v. Zlotnikov
On Appeal Mixed Outcome
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This case involved a dispute regarding defamation that was based on the auto complete feature in Google. Due to the convoluted nature of the law on this topic and a complex fact pattern, the Court dismissed the case and awarded costs to the plaintiff, Dr. Yeung, Sau Shing Albert. The original action was brought on August 5, 2014.
In October 2014, the Court again reviewed this case and granted the Google’s leave to appeal based on the unsettled area of law that surrounded the issues and due to the “interests of justice.” There has not yet been a decision on the outcome of this appeal.
This case involved a dispute between Albert Yeung and Google, Inc. regarding defamation. When performing a search on Google.com there is an auto complete feature which provides suggestions to complete the search being performed. When Yeung’s name was typed into the search engine, the auto complete feature automatically entered “triad.” This was based on the amount of searches completed using this phrasing and it is a general automation.
The main issue in this case was whether Google could be considered a publisher of the defamatory information by merely creating an automated service. Furthermore, even if Google could not be considered a direct publisher of the information, a second issue was whether Google could still be liable as a publisher for being aware of the defamatory information and refusing to take it down. Finally, a third issue considered by the Court was whether Yeung had actually suffered any damages, and if he had not, whether this action could amount to an interference with freedom of expression leading to an abuse of process.
After the first decision was handed down, Google filed a motion in September 2014 for Leave to Appeal Against the Order.
Initially, the Court dismissed the claim and awarded costs to the plaintiff, deciding that this was a case better suited for a trier of fact. The Court repeatedly articulated that this case had a large amount of complicated facts and that the law surrounding the issues was mostly unsettled and ambiguous. The Court concluded there was a reasonable basis for an cause of action, so it ultimately allowed the case to go forward and be appealed.
As to whether Google can be considered a publisher, the Court discussed cases dealing with internet search engines and blogs, and found that there were varying opinions from courts on whether a search engine can be considered a publisher for simply providing access to certain information. The Court held that whether Google was a publisher by completing the auto complete feature in a search engine is a question for a trier of fact. Generally, there must at least be some knowledge on the part of the defendant to hold the publisher liable. Due to the automation of the search feature it was arguable either that Google participated in the publication of this defamatory statement or that Google was simply running an automated program.
Further, the Court discussed whether, even if Google was not considered a publisher, Google could have become a publisher through adopting or consenting to the publication. By not ‘fixing’ the defamatory statement or taking it off their website, it was argued that the defamatory information could potentially amount to a publication by Google itself. The Court discussed a case in which a defamatory article was published on a personal blog site run by Google. Google refused to remove the material, and even though Google did not publish the material, they were liable as a publisher by not taking affirmative steps to remove the material.
Finally, the Court ruled that there was not an abuse of process and Yeung likely did suffer harm from this auto complete feature. An abuse of process can occur when the plaintiff brings an action for defamation and has not suffered any injury because this helps creates a chilling effect on freedom of expression. Ultimately, the Court recognized the complications with internet mediums and stated that an important balance must be struck between freedom of expression/information on the internet and individual rights with respect to harm of reputation.
Decision to allow leave to appeal
For a leave to appeal, the moving party must prove to the Court that there is are reasonable grounds for success on the merits if an appeal is granted. Google submitted three main grounds of appeal which asserted that there was “no publication to third parties; Google, Inc was not the ‘publisher;’ and [there was a] failure to consider context.”
On the first ground, the Court noted that publication to at least one other person can satisfy an action for defamation. The Court compared the instant case to Bleyer v. Google, where the allegedly defamatory statements were only published to three people and in the current case there were publications to multiple people. The Court noted that is it important to keep in mind the “balance of interests between the sale of publication and the vindication of reputation, and between freedom of speech, press and publication and respect for rights/reputations of others before coming to the view that Yeung has put forward a good arguable case.” However, the Court ruled that this ground entitled Google a leave to appeal because of the interest that courts may have to “put the brakes on costly and time-consuming defamation actions.”
On the second ground, the Court referenced the Beyer case where it was held that Google could not be liable as a publisher of the results produced by its automated search engine. However, another case (Trulja) held a completely contrary result. Therefore, the court noted conflicting authority on whether Google can be held to be liable as a publisher. The Court also stated that although the auto-complete feature is mainly automated, there is some human input that goes into this process. Therefore, due to the unsettled case law in this area, the Court granted Google’s leave to appeal on this ground so that an appeals court “can impart their wisdom on the implications of divergent views in international jurisprudence for this jurisdiction.”
The Court rejected Google’s third ground for appeal.
Finally, the Court ruled that the overriding factor for allowing this leave of appeal was “some other reason in the interest of justice.” Because this is such an unsettled and gray area of the law, it was determined that in the interests of justice, the Court must allow the case to go forward for an appeals court to decide on the matter.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court did not really expand or contract expression in this case because the case was dismissed. The Court thought this unsettled area of the law would be better addressed by a jury. Therefore, the appeal of this case will give the most information on how the jury will decide this factually complex area of the law. Since the Court has granted Google’s leave to appeal, it will be interesting to see the final outcome in this case.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The European Court of Human Rights has noted, “article 10 does not guarantee a wholly unrestricted freedom of expression even in matters of serious public concern, and the duties and responsibilities under article 10(2) assume significance when information imparted is likely to have a serious impact on the reputation and rights of private individuals.”
Second action for defamation of continuing publication of newspaper articles published online. Court found no violation of Art. 10 of the Human Rights Convention through a finding of libel.
This case involved a hyperlink to defamatory statements of the plaintiff so when his name was googled these results came up. Google blocked the links but failed to completely eliminate the information from appearing. The court ruled it was reasonably arguable that Google could be considered a publisher of the material, however, to hold so in this case would result in a chilling effect on speech. The defendant cited section 14 of New Zealand Bill of Rights Act of 1990, and the Court ruled, “it would be an unreasonable limit upon that right to hold that the automatic generation of search results amounts to publication. Search engine operators are, according to the defendant, an invaluable gateway to the internet, performing a vital role in dissemination of information. Liability as a publisher would have a ‘chilling’ effect and would thus adversely affect users’ access to information.”
The case referred to Art 10 of the Human Rights Convention and noted the importance of freedom to publish free of unjustifiable restraint, but noted that defamation law does not necessarily violate that right.
Publication of defamatory items by Google which came up on Google searches. Bleyer’s lawyers asked Google to remove the materials and Google removed some but not all of the materials. “Publication can be inferred if appropriate factual foundation for such inference to be drawn is laid before the court.” Plaintiff failed to identify that the defamatory statements were published beyond three individuals.
Reaching a contrary result to the Beyer case.
“[W]hether or not an internet search engine can be considered a publisher in defamation law ‘is not settled in Australia.”
Case significance refers to how influential the case is and how its significance changes over time.
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