Defamation / Reputation
Prosecutor v Elżbieta Hołoweńko and Marcin Krawczyk
Closed Contracts Expression
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The Full Court of the Supreme Court of South Australia upheld the lower court’s decision finding Google liable as a secondary publisher of defamatory information for hyperlinks and snippets that came up in response to search queries. The Court reasoned that even though Google did not write the material itself, it facilitated publication by designing the programme which authored the words of the snippet paragraph and, because it was on notice that the material was defamatory and refused to remove the information, it could not be found to have innocently circulated the information. It was therefore liable under Australian law as a secondary publisher of defamatory material.
The Claimant, Dr. Janice Duffy, had a romantic relationship with a man named Jon who lived in New York. Jon promised to come out to Australia to visit her in June 2006, and Dr. Duffy consulted several psychics on the website Kasamba to inquire about the future outcome of a relationship with Jon. She received only positive results from the psychics but, alas, Jon was in love with another woman and broke things off with her officially. Dr. Duffy began to suffer from major depression as a result, and reached out to the psychics to complain about her discontent with the advice they had given her.
Dr. Duffy posted a web report on the website “Ripoff Report” complaining about her dissatisfaction with the services she had received from the psychics on the Kasamba site. She also commented on the reports of others about the psychics. She created a chat group “kasambavictims” on Yahoo. Dr. Duffy also posted messages under a pseudonym, and began to email the site complaining that her friend’s wife had committed suicide due to bad advice given by the psychics. This was untrue. Between August 2007 and January 2009, four articles and numerous comments appeared on “Ripoff Report” alleging that Dr. Duffy was, among other things, a “psychic stalker”, and that she misused her work email, was unable to function in day-to-day life, was an embarrassment to her profession, and harassed psychics by persistently and obsessively pursuing them.
In an unrelated matter, Dr. Duffy filed a complaint for worker’s compensation against her employer. When reviewing her complaint, her case manager conducted a search of her name and the “Ripoff Reports” came up in the results. A private investigation company became involved and interviewed her regarding the claim. After the interview, Dr. Duffy searched her name on Google search engine and saw the “Ripoff Reports” about her in the search results. In September 2009, Dr. Duffy contacted Google stating that these reports contained defamatory information about her and requested that Google take down the relevant search results. Google refused to do this. Google stated that the content could not be removed from the relevant websites without the cooperation of the sites’ webmaster.
In February 2011, Dr. Duffy instituted civil defamation proceedings against Google Inc. Between March and November 2011, Google progressively removed search results from its Australian website containing the “Ripoff Report” content about Dr. Duffy. In July 2011, Dr. Duffy became aware that when people searched her name on Google’s search engine, the Google search bar provided an autocomplete suggested search term of “janice duffy psychic stalker”. Dr. Duffy notified Google of this and claimed that the display of those words on Google’s websites amounted to publication of defamatory material.
Justice Blue, sitting on the Supreme Court of South Australia, found Google Inc. liable as a “publisher” of defamatory information contained in search results that were automatically generated whenever a user searched an individual’s name on its search engine. The judgment of the Court examined case law on intermediary liability across numerous jurisdictions. A primary consideration for the Court in this case was that the individual had notified Google about the defamatory sites, and Google had refused to remove these sites from search results. Google was also found to be the “publisher” of autocomplete suggestions that came up when a user began to type the individual’s name in its search bar, as well as the “publisher” of webpages that could be accessed via a hyperlink in the impugned search results.
The Court held a trial on the issue of liability only. The Court noted the elements of the tort of defamation and focused on the main issue in this case, which was whether Google could be treated as a “publisher” under defamation law.
The elements of the tort of defamation under Australian law are as follows: (i) the defendant participates in publication to a third party of a body of work, (ii) the body of work contains a passage alleged to be defamatory, (iii) the passage conveys an imputation, (iv) the imputation is about the plaintiff, and (iv) the imputation is damaging to the plaintiff’s reputation.
The first ingredient of the tort looks at whether the defendant “published” the relevant statement to a third party. The Court noted that this necessarily involves a physical and a mental element. The physical element is that the defendant objectively participates in communication of the work to a third party. The Court highlighted that it was sufficient that the defendant takes “one step in the overall process of communication which requires concurrent or cumulative steps by others”. [para. 159] The mental element is that “the defendant intends or knows 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”. [para. 161]
The Court went on to note that the mental element depends on whether the defendant is a “primary publisher” or a “secondary publisher”. A “primary publisher” may be held liable for defamation regardless of whether it knows of the defamatory material, whereas a “secondary publisher” is only held liable if it knows that what it was publishing contains the passage in question or is reckless or careless as to its containing such a passage. The Court noted that this aspect of the cause of action in defamation is commonly referred to as the defense of “innocent dissemination”. The Court implied that a “primary publisher” would usually be an author, creator, printer, or proprietor of the relevant content, while a “secondary publisher” would be a mere disseminator of the content (like a bookseller or library).
Google argued that it could not be held liable because it did not expressly or implicitly authorize the publication of the material. The Court rejected this argument as being unsuitable to the present case since Google disseminated the defamatory matter (traditionally the argument was used by owners of structures that had defamatory content affixed to it by trespassers). The Court found that Google had participated in the dissemination of the impugned information by facilitating its dissemination through its search results (agreeing with courts in several other jurisdictions).
The Court then looked at whether the physical and mental elements had been met in order for Google to be classed as a “secondary publisher” in relation to the impugned search results, hyperlinked websites, and autocomplete suggested search terms.
Turning first to the search results (i.e. title, snippets, and URL) generated by the Google search engine when users searched for Dr. Duffy’s name. The Court found Google played an active role in generating these search results and, as such, met the physical element for publication. The Court reasoned that “Google played a critical role in communicating the paragraphs to the user […] 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 paragraphs and communicating them to the user. […] It makes no difference to the physical element whether a person directly composes the words in question or programs a machine which does so as a result of the program”. [para. 204]
In relation to the mental element, because Google was not a “primary publisher”, it was necessary that Google knew or ought to have known of the existence of the relevant search results. The Court reasoned that only once Google acquired knowledge of the paragraphs by reason of Dr Duffy’s notifications and failed to remove them within a reasonable time thereafter would the necessary mental element be present for Google to be a “secondary publisher”. This was because the “continuing existence thereafter was the direct result of human action or inaction rather than merely the result of machine operation”. [para. 206]
Next, the Court looked to whether Google could be held liable as a “secondary publisher” of the content on the external “Ripoff Report” website when users clicked on the hyperlinks generated in their search results. The Court used a similar analysis as above, highlighting that the text and hyperlink were an integrated whole. The Court found that Google could be held liable as a “secondary publisher” but only after it had been notified of the material by Dr. Duffy and refused to remove the hyperlinks after a reasonable period.
Finally, the Court looked at whether Google could be held liable as a “secondary publisher” for the autocomplete feature in its search bar. The Court again found Google could be liable for information disseminated through this autocomplete feature if it failed to remove the words within a reasonable time after notification.
The Court then turned to look at the notice given by Dr. Duffy, to ascertain whether it was sufficient to fix Google with the relevant mental element. The Court concluded that Dr Duffy’s communications with Google comprised adequate notification to them of the allegedly defamatory material, this was despite the fact that some of the URLs were incomplete in these communications. The Court also implied that a reasonable time for removal of content would be one month, which had not been met by Google.
Google tried to argue that, as part of the mental element, it should be required that it knew or ought to have known that the relevant passages were actionable or otherwise unlawful as defamation, i.e. it knew or ought to have known that all of the ingredients of the cause of action were present and all defenses negated. The Court rejected this argument, reiterating that the mental element required that it knew or ought to have known that the relevant passages were being disseminated by it.
The Court found that a substantial number of Australians read most of the relevant paragraphs, webpages and autocomplete suggestions on Google (i.e. it was published to third parties). The Court also agreed with a number of meanings put forward by Dr. Duffy, and that these meanings were defamatory of her. The Court then turned to the defenses put forward by Google.
The Court rejected Google’s defenses of innocent dissemination, qualified privilege, and justification (truth). In dismissing the innocent dissemination defense, which required that the publisher be a subordinate distributor who did not know or ought not to have known that the matter was defamatory, the Court stated that the defamatory nature of the content was self-evident from an examination of it.
In relation to the defense of qualified privilege, which required a mutual interest in the information that was held by both the publisher and the recipient, the Court reasoned that “[w]hile some recipients may have had a legitimate interest in ascertaining specific types of information about Dr Duffy amounting to a sufficient interest for the purpose of qualified privilege, the information provided by Google about Dr Duffy was not confined to any specific type of information nor tailored to the particular interest of such a recipient. Google made the information available to any recipient enquiring out of mere curiosity or for purposes of gossip or worse”. [para. 400]
In relation to justification (truth), the Court found no evidence supporting Google’s argument that Dr. Duffy stalked or persistently and obsessively harassed any of the psychics. The Court did, however, uphold the defense of justification in relation to the imputation that Dr. Duffy misused her government work email address by sending emails for non-work or other wrongful purposes.
The matter was set to proceed to trial on the remaining issues – the defenses of triviality, time limitation, motions for extension, causation, and damages.
Google appealed to the full Court and Duffy cross appealed on the amount of damages. The Full Court of the Supreme Court of South Australia upheld the judgment of Justice Blue holding Google liable for defamation as a publisher, and dismissed Duffy’s cross appeal against the award of damages.
The Court upheld the decision of the lower court finding Google liable as a secondary publisher of the defamatory material. Duffy’s cross appeal for damages was dismissed. Justice Peek, Hinton and Kourakis all held that Google was liable as a secondary publisher but Justice Kourakis dissented on the “qualified privilege” issue being of the opinion that Google was entitled to rely on this.
There were three main issues on appeal (1) was Google the publisher of the information; (2) were the imputations justified; and (3) did Google have a defense of qualified privilege? Most of the Court’s discussion was focused on the first element; whether Google could be considered a publisher of the information for defamation purposes. The Court found Google liable as a secondary publisher. To be held liable as a secondary publisher there must be a failure to remove defamatory material, and that failure in effect shows promotion of the presence of the defamatory materials (not necessarily promotion of the materials itself) if someone (here Google) becomes aware of defamatory material published by someone else and fails to take steps to remove that material.
Google argued that the innocent dissemination doctrine should require knowledge that the posts were defamatory, but the Court disagreed finding that would create an impossible burden for the Plaintiff and “swing the pendulum radically in favour of freedom of expression and against the interest of the individual in protecting his or her reputation”. [Para. 98] Instead the Court adopted a “presumption of knowledge” principle, which could be rebutted by proving lack of knowledge.
The Court considered that hosts of websites may be publishers because they closely facilitate publication of material by inviting communication on a certain subject matter; they control the content; and they have a greater capacity to read the material posted there. Google has control over the hyperlinks and snippets that appear when you enter search terms into the search box. According to the Court, this made Google a participant in the publication of the material, even though the content was simply a reproduction of another webpage. The Court further found that an intentional act of publication by Google was not necessary to establish liability as a re-publisher. Once Google was on notice that these search terms were producing defamatory hyperlinks, it lost its right to claim a defense under the innocent dissemination doctrine. The Court reasoned that Google could not be held liable for the search terms until they were discovered and for a reasonable time after it was asked to take the sites down. In this case Google was asked by Duffy to take down the defamatory material and Google refused. This refusal attached liability to Google, the Court said.
The Court briefly discussed the issue of whether the imputations were justified (i.e., a defense of truth was available) and found that they were not; there was no evidence that Duffy actually stalked psychics.
Justice Kourakis dissented on the issue of Google’s qualified privilege defense. He would have found that Google’s conduct was reasonable as the persons to whom the information was published had a legitimate interest in the information, making the defense of qualified privilege available to Google. The other Justices, Peek and Hinton JJ, found that there was not sufficient evidence to establish a legitimate interest to meet the qualified privilege defense. Specifically, Australian law protects publishers of defamatory material if the material is produced in response to a query from an individual who has an interest or apparent interest in the subject matter presented. Peek and Hinton JJ noted that an “interest” in the subject material cannot be established through a mere inquiry into whether it was interesting for the readers, but rather requires a showing of a legitimate personal, business or social interest. They found this to be a limited application privilege, which was not applicable on the facts of this case, as none of the readers of the information had an interest that was material to the lives of the readers or would sway their minds in making an important decision; there is a distinction to be drawn between mere curiosity in a subject and something genuinely relevant to a person’s daily life.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression by holding Google liable in defamation as a “secondary publisher” of its search results where it receives notice of allegedly defamatory content and does not remove the content in a reasonable time. This ruling could have a “chilling effect” on free speech as internet search engine providers, rather than using resources to consider and respond to all defamation complaints relating to specific search results, will play it safe and over-censor search results in order to protect themselves against litigation.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
As a decision of the Supreme Court of Australia, this case binds all lower Australian courts. It can be appealed to the High Court of Australia, which is the country’s highest court.
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