The recent case of Duffy v Google  SASC 13 in the Supreme Court of South Australia confirms that search engines and other online publishers of third-party material can be liable as secondary publishers of defamatory content when they are put on notice and fail to remove defamatory material (eg. in snippets, hyperlinks or defamatory extracts).
This is distinguishable from the High Court's decision in Google v Defteros, where the hyperlink in question was considered to be "content-neutral" (ie. it did not communicate anything defamatory in and of itself, even if it linked to defamatory material). As a result, there was an insufficient connection in the Defteros case between the search results and the third-party website since it did not operate as an enticement or encouragement to click on the hyperlink and left it up to the searcher to take the further step of clicking on the hyperlink in order to access the defamatory webpage. In Duffy v Google, the search engine results were not content neutral.
Dr Duffy defamed… again
Duffy's first case against Google
Dr Duffy is not unknown to Google. She has fought two defamation liability cases against Google over the past 12 years in the Supreme Court (self-represented) and won both of them. The first involved defamatory content published on a website, Ripoff Report. She won that case in 2015 (with a damages award of $100,000) when the Court found that Google Inc was liable for the defamatory content of hyperlinks and extracts from the Ripoff Report materials that appeared in search results on Dr Duffy's name. Google went beyond mere indexing by creating hyperlinks with surrounding text that were defamatory. The decision was upheld on appeal in 2017. The Appeal court noted that:
- It was not necessary for Dr Duffy to prove that Google had knowledge of or adopted the contents of its search results
- Google’s conduct was the substantial cause of the display of the search result on the screen;
- Google was therefore a participant in the publication of the snippets. However, it did not have any practical ability to review their contents before they are displayed. It did not have advance knowledge of the contents of search results. As a result:
- Google was a secondary publisher of search results; and
- knowledge of the defamatory contents should not be attributed to Google until notice was given to it of the defamatory content.
Déjà vu – round 2 with Google
Approximately 1 year after winning at trial in the first action, Dr Duffy commenced a second action against Google after she "became aware that practically identical search results were once again available on Google’s search engines".
Dr Duffy’s case was that Google defamed her by publishing search results indexing hyperlinks which led to webpages containing defamatory material of her. She claimed that Google defamed her by publishing highly offensive third-party webpages by indexing hyperlinks that led to defamatory websites presented as results on its search engines. She claimed the defamatory content remained indexed on the first page of Google search results on domains available in Australia for upwards of eight years.
Google insisted on notification of complete URLs of concern to Dr Duffy which were appearing in search results on google.com.au before it would consider their removal. While Google removed various specific URLs notified by Dr Duffy, the URLs reappeared in search results because the relevant website was "in the habit of changing URLs specifically to avoid Google’s removal methods".
Google contended, among other things, that the search results were not defamatory, and that the defence of innocent dissemination applied.
As a self-represented litigant, Dr Duffy encountered difficulty with the admissibility of the lay and expert evidence that she sought to adduce. The Court noted that direct evidence of publication led or given by Dr Duffy was quite thin and often inadmissible. Nevertheless, there was sufficient evidence to prove publication by inference, including from Google's own documents.
Google is a secondary publisher of snippets/hyperlinks
The Court found in favour of Dr Duffy, finding Google liable as a secondary publisher in circumstances where:
- terms in the snippets and hyperlinks carried an "unmistakably pejorative connotation" and conveyed defamatory meanings.
- the snippets displayed in the search results were likely to "entice" the user to select the accompanying hyperlinks in order to seek more information. This effect was "enhanced by the preeminent ranking given to the snippets by Google itself".
The Court noted:
"In this instance the subject snippets did more than describe a story about a person; they described her as a furtive stalker in terms amounting to an imputation of criminal conduct, someone to be wary of and as someone to be stopped. They consisted of more than a reference or subject matter heading and the words attracted the attention and interest of the user, particularly “beware” and “stop the Australian psychic stalker”. They offered and therefore were likely to entice the user to select the accompanying hyperlink in order to clarify or to elaborate on the underlying meaning of an intriguing snippet and to seek more information. The capacity to entice the reader to select the hyperlinks was enhanced by the preeminent ranking given to the snippets by Google itself".
Dr Duffy's case was therefore distinguished from the High Court decision in Google LLC v Defteros, in which the search results did not contain defamatory material and did not direct the user to a particular result.
This is not innocent dissemination
Google's defence of innocent dissemination failed after the Court found that Google knew of the serious defamatory nature of the material, given judgment in Dr Duffy's first action and her subsequent communications with Google identifying and requesting removal of the defamatory URLs.
The Court criticised Google for failing to take any steps to search, locate or block the URLs other than to insist that Dr Duffy identify them fully for Google, knowing that the defamatory material remained accessible and would reappear in a short space of time. The Court observed:
"It may be accepted as a matter of common sense that once having acquired the requisite knowledge, Google needed the complete URL in order to effectively block an offending website from its search engine. By the same token it cannot be accepted that with all its resources and expertise, it could not have quickly and easily ascertained the precise URL from the information it had at hand, quite apart from what Dr Duffy was providing".
In the circumstances, Google "was entirely reactive rather than proactive in the removals process", when it could have quickly and easily ascertained the precise URLs and automatically counteracted any URL changes.