Google is a publisher liable of defamatory third party’s content
In the case of Google Inc v Duffy  SASFC 130 the Full Court of the Supreme Court of Australia on 4 October 2017 finds Google liable for the defamatory content of the hyperlinks and paragraphs resulting after the search of the respondent’s name on its own search engine service.
The Court rejects the appeal proposed by Google against the judgment that pointed the search engine as responsible for defamation by publishing to a substantial number of people information as search results in form of extracts from webpages referring to the respondent as a “psychic stalker” and a misuser of the office equipment of her employer.
Ask Kasamba the future
Dr. Janice Duffy is an Australian medical researcher in her late fifties trying to forget a sad story. When she meets Jon during a vacation in New York City, she feels like a dream comes true. She is becoming really involved despite an ocean between them. In the depth of her heart she knows a love story son or later will blossom but, for now, they are more in a romantic friendship. As a mature woman willing to find the partner of a life without hit-or-miss affairs, there is only a thing to do. Ask Kasamba the future.
Kasamba is a website where consultants and psychics are offering prophecies and reinforcement of hopes and good feelings. Psychics of Kasamba operate under pseudonyms offering tarot and psychic reading, dream analysis, fortune telling over astrology, love and relationship, career, and finance. Dr Duffy chooses the Psychic Reading, where by an accurate interpretation of crystals, you can be predicted if your love will last forever or which is your pet’s real disposition.
Kasamba works as a pay-per-prediction site. Costs can be easily payed by credit card or PayPal selecting the trusted psychic within your price range before asking for the service. Once selected the psychic and paid the due, Dr. Duffy asks the online prophet if Jon is really fond with her. Yes, of course, no doubt, is the response.
Sometime later, she asks another psychic who answers positively as well. Pity that her relationship with Jon is turning for the worse. Indeed, more she questions Kasamba’s psychics, more they swear the future with Jon is romantic and full of love. When she informs Kasamba that Jon is actually gone with a married woman and not returning Australia for the rest of his life, not to mention he wanted no more to see her again, her trusted psychic tells her that she and Jon are going to spend an amazing next month together.
Hope dies last and Dr. Duffy keeps waiting for Jon to return. He comes back indeed, only to inform via email Dr. Duffy that his girlfriend has finally divorced her husband and they are enjoying the best love story ever lived. In May 2007, Dr. Duffy has definitively realized that her relationship with Jon is lost.
The end of any hope makes Dr. Duffy more depressed than the end of the relationship itself. She feels mocked by Kasamba too. To express her disappointment, she posts complaints against Kasamba psychics on the Ripoff Report site, a “shaming platform” where customers are allowed to leave angry comments about a supplier of goods or services, who on its turn is allowed to leave a reply.
The “shaming platform” where comments can be anonymous posted
Just leaving a complaint is not a satisfactory revenge, for Dr. Duffy. She creates a chat group on yahoo.com enabling all Kasamba victims to blow off steam. Then, she manages to reach online Sun, the Kasamba’s psychic who falsely predicted so much love with Jon abusing her faith. After complaining with him under her true name, she creates a fake account under the name of Oswald Billet. She makes Sun believe, as Mr. Billet, that his wife had a friend who committed suicide because of Sun’s false hope about love, threatening to reveal Sun’s wrongdoing to national media. Dr. Duffy keeps on posting similar messages on Kasamba site and on Ripoff Report.
To add insult to injury, Dr. Duffy is receiving adverse answers to her posts. One of them calls Dr. Duffy a “psychic stalker”, another one reveals that Mr. Billet is the pseudonym under which Dr. Duffy is persecuting Sun. Far from ceasing her revenge against psychics, Dr. Duffy creates several accounts and under different usernames, she posts complaints against many of the Kasamba’s psychics on the same site or on Ripoff Report. By posts and answers she generates a lot of on-line material now circulating on web.
Google’s Autocomplete draws Dr. Duffy as a stalker
Since Google’s activity is basically crawling online material, identifying, and hyperlinking, to return it in form of search results, it can be imagined what results it gave after querying for Dr. Duffy. Extracts of Ripoff Report were circulating across the web calling Dr. Duffy obsessive, liar, harasser, endangerer and an embarrassment to her profession having misused her work email address for private purposes. Google’s Autocomplete does not even need the user to digit the whole query, because after Dr. Duffy it suggest “psychic stalker”. She asks Google for removal of defamatory content, but her request is declined until November 2011, when a civil proceeding is already started.
From 2009 trial to 2017 Supreme Court judgment
First stage of trial was set on 2009 and Judge awards the respondent $115,000 inclusive of interest in general damages out of award for loss of earning capacity. Google appeals the Judge’s findings as to liability while Dr. Duffy cross-appeals the quantum of damages and seeks a higher award. In 2015 Judge Blue holds that Google is a publisher of the material complained of, liable of defamatory publishing, ordering Google to pay Aus$100,000 to Dr Duffy in damages. Google appealed to the Full Court whose judgment was handed down on 4 October 2017.
Both parties’ arguments
Respondent’s claim is that the operation of Google search engine results in the publication of search results, the publication of the underlying web page subject of the hyperlinks contained in the search result, and, in the publication of the content of past searches by virtue of the operation of the autocomplete function. She further amends her claim to incorporate an additional cause of action arising from the Google’s Autocomplete search results of “janice dr. duffy psychic stalker”.
As appellant Google denies publication and denies that the material displayed on or linked from its websites gave rise to the pleaded defamatory imputations. Its arguments consist in innocent dissemination, qualified privilege, justification and contextual truth.
Google is a secondary publisher liable for defamatory content on its search results
The Court, in person of Judge Kourakis supported by the members of the Court, upheld the decision of the lower Court, confirming Google’s liability as a secondary publisher of the defamatory material and dismissing Dr. Duffy’s cross-appeal for damages.
The main issued as discussed by the Court is regarding whether Google could be considered a publisher of the defamatory content and whether Google’s activity constitutes participation in the publication of defamatory contents.
On the ground of the failure to remove defamatory material even if aware that someone else published it, the Court affirms that Google participated in the publication of the relevant paragraphs about Dr Duffy produced by its search engine because it intended its search engine to do what it programmed it to do and that there is no need to prove that Google had knowledge of or adopted the contents of its search results. It brings out the principle that Google’s conduct is the substantial cause of the display of the search result on the screen.
But, having not any practical ability to review contents before they are displayed or an advance knowledge of the contents of search results, it should be considered a secondary publisher of search results whose knowledge of defamatory contents origins only when notice is given. As a secondary publisher, its defence is not allowed to rely on the innocent dissemination at common law because it would turn in an impossible burden for the Plaintiff to demonstrate Google’s acknowledge that the posts were defamatory. The Court prefers to adopt the presumption of acknowledge against Google.
When aware of defamation Google should delete the issued material
The Judge outlines that Google was liable for the republication of the Ripoff Report pages to which it hyperlinked by a substantial and proximate facilitation of the reading of these pages. The search results incorporated the contents of Ripoff Reports facilitating the reading of the defamatory material to users by inviting communication on this matter. Google is found able to read the posted material or control hyperlinks and snippets appearing after a search. This is the reason of Google being considered a participant in the publication of the material.
The fact that the material was simply a repetition of another site does not deny its capacity to convey a defamatory meaning. Therefore, the activity of Google should be considered the proximate cause of the republication of material and it should be held liable once received notice of a claim.
From that time on, the republication of content notified as defamatory is no longer innocent. The only justification lays upon the time it needs as a secondary publisher to erase references to defamatory material blocking the source URL.
Dissenting from the other members, Judge Kourakis finds qualified privilege under section 28 of the Defamation Act 2005 available to Google, since the conduct was reasonable. The persons to whom the information was published had a legitimate interest in the information so that the material was reasonably published by Google.
Australian justice finds Google liable
Dr. Duffy story, whose details are told on her blog, represents one of the many fights of individuals against a web giant seeking removal of defamatory content to whom they are concerned as their reputation is being damaged.
Among many other judgments all around the world from EU to USA, denying or holding removal requests on different grounds, this judgment is crucial for its definition of Google as a secondary publisher. This quality makes Google for the Australian justice liable for the publishing of snippets produced on its searches and of webpages reporting defamatory content. Its liability starts not from the very moment of the publishing but when it is made aware that its search engine was producing a defamatory activity.
The judge goes far beyond Google’s activity of indexing, claiming its ability of control and decision to establish that hyperlink and surrounding text were both defamatory.
Similar claims of defamation for autocomplete suggestions
Google is facing another recent issue of liability for defamation for its search results and autocomplete suggestions before Australian appeal Court of Melbourne in the Google Inc v. Trkulja case.