With constant development of technology nowadays, it becomes more complex to draw a line between legitimate information delivery and defamation. A question brought to the table is that whether a search engine assumes full liability for any damages triggered by defamatory publication on its platform or whether a plea of innocent dissemination is applicable. In defamation law, a plaintiff can take a party to the court arguing that he has endured three of the following things: the words or pictures “were capable of defamatory meaning, … identify him as the person defamed, … heard or seen by a third person” (Thenewsmanual.net n.d.). To keep it simple, an examination of the defamation case between Dr. Janice Duffy and Google will provide a practical application on what current Australian law system is practicing.
In 2011, a former SA health department researcher had filed a civil lawsuit against Google for defamation by a number of articles composed on a site named ‘Ripoff Report’. The content is alleged to hold slanderous imputations about Dr. Janice Duffy such as claims about her being a stalker and conducting continual harassment of clairvoyants. The plaintiff, in July 2009, realized that searches for her name on Google’s search engine generated the showcase of passages from the Ripoff Report and hyperlinks to other sites repeating that writing. Dr. Duffy asked Google to remove the material because of its potential defamation for her, and yet, the firm declined. After tedious years of costly trials, the Court had ruled in favor of Dr. Duffy and ordered the giant internet search engine to pay the plaintiff an award of $100,000 for general damages with the addition of $15,000 interest.
The plaintiff claimed three aspects which had driven her lawsuit against Google over defamation. The first viewpoint is under various insertion of Dr. Duffy’s names, Google was responsible for publication of search results that include extracts from and hyperlinks to 16 websites whose passages constitute libel about her. An example of paragraphs, cited by Cryptome.org, displayed if a user searches for “Dr. Janice Duffy” is “Dr. Janice Duffy is truly an embarrassment to her profession as a Senior Researcher in Adelaide Australia”, “... Psychics must be aware of a psychic stalker named Janice Duffy”, and so forth. It is reported by Marcus (2015) about Dr. Duffy’s concern that any potential employer would find her information through Google search engine and be exposed to those articles, which resulted in her financial and mental suffering. Secondly, Dr. Duffy pointed out that scans for her name on Google brought about the substitute term “Janice Duffy psychic stalker” offered by Google’s “autocomplete utility from June 2011 onwards and its related search utility from June 2012 onwards” (Cryptome.org n.d.), from which defamation could emerge. Moreover, on account of the production of excerpts and hyperlinks to Ripoff Report materials, Google was by all means the second publisher of such traducing content.
One of the most famous cases where Google was also considered second publisher of defamatory content would be Trkulja litigation against Google in 2012. He has successfully sued Google for defamatory search results of his name which falsely associate him with the Melbourne underworld criminal. On the Inforrm’s Blog (2017), it is written that the Victorian Supreme Court had awarded Trkulja $200,000 for damages in their final decision. The question was raised, in the same manner as Dr. Duffy's lawsuit, whether Google is considered the publisher of its search results. With respect to web matter, Trkulja found the search results and autocomplete predictions that display a thumbnail picture of the plaintiff slanderous of him. On 3rd December 2012, Trkulja notified Google and sought for its authority to take the material down. It was argued that once the defendant had been given notice and had the power to withdraw the material, yet refused to do so, it unavoidably turned into a primary publisher of the complained matter. This defense was accepted by the Court and had brought Trkulja a famous victory against the technology behemoth.
According to Cryptome.org, Google repudiated allegations of any disparaging publications connected to its website and contended with “defenses of innocent dissemination, qualified privilege, justification and contextual truth”. Speaking of qualified privilege, the firm asserted that there is a public interest in acquiring data pertinent to the pursuit term, and thus Google shared a corresponding interest in presenting that information. In terms of justification plea, Google referred to Dr. Duffy’s exchange with Kasama administrators and posts on the site to prove the truthfulness of imputations claimed by the senior researcher. By which, it is bound to imputations of “stalking, harassment, government mail misuse, injury infliction, and reputation tarnishing … phoney name for deception; disseminated lies; … inaccurate and damaging reports about psychics; … manners requiring complaints against her to protect consumers” (Cryptome.org, n.d.). Justice Malcom Blue in the final verdict has rejected defense of innocent dissemination for the fact that defamatory materials were a result of a programmed search engine intended by Google. The defendant therefore had become a second publisher of the text when it was alerted by Dr. Duffy about the slanderous text in question. That Google rejected the request of content removal renders it liable for defamatory publications.
The implication of Dr. Janice Duffy v Google case has set a new bar for any search engine out there to carefully practice what an ordinary fair consumer would comprehend from its hyperlinks. In case of defamation caused by programmed search results, the publication is accused of disparaging imputations regarding an individual when his reputation is at risk of being tarnished; there is prospective damage to the person’s profession or business; and he is expected to be disregarded, ostracized, mocked, and loathed by others (Thenewsmanual.net n.d.). Therefore, as someone who has authority over content display, search engine firms should be mindful of the potential consequences of published materials on their platforms. Once notified of defamatory matter by users, a company will be counted as primary publisher of such content given that it decides to do nothing with the request. Same golden rule is also applied to the autocompletion coded by companies. As long as plaintiff can prove that the term offered by search engine is substantial in leading to his defamation, the award charged for firm in lawsuit would be costly depending on the scale of information dissemination. After two colossal cases of Google versus users, it is time to rethink about the role of search engine and its effect on today’s consumers. Everything might not appear to be as innocent as pure information delivery in the old time.
- Cryptome.org., n.d., online, Available at: https://cryptome.org/2015/12/duffy-v-google.pdf [Accessed 6 Apr. 2019].
- Inforrm's Blog. (2017). Case Law, Australia: Google Inc v Trkulja, Trkulja III not as good as the originals – Justin Castelan. [online] Available at: https://inforrm.org/2017/02/17/case-law-australia-google-inc-v-trkulja-trkuljga-iii-not-as-good-as-the-originals-justin-castelan/ [Accessed 6 Apr. 2019].
- Marcus, C. 2015, ‘Adelaide woman sues Google for defamation’, ABC News, online, Available at: https://www.abc.net.au/news/2015-10-27/adelaide-woman-sues-internet-giant-google-for-defamation/6890292 [Accessed 6 Apr. 2019].
- Thenewsmanual.net, n.d., ‘Defamation in Australia’, online, Available at: http://www.thenewsmanual.net/Resources/medialaw_in_australia_02.html [Accessed 6 Apr. 2019].