Automation is no (Auto)Complete Defence: Online Defamation in Duffy v Google Inc.

On 27 October 2015, the Supreme Court of South Australia (Court) released its decision in Duffy v Google Inc, [2015] SASC 170, finding Google liable for defamation for failing to remove defamatory suggestions from its Autocomplete and Related Search features, as well as its search results.  The Court concluded that if Google is notified that its automated search tools return or suggest defamatory content, the search provider can be liable for publishing defamatory content.

The defamatory content was generated or returned automatically by operation of algorithms.  Nevertheless, the Court found that, since Google personnel had been notified of the content, its continued existence was a direct result of human action or inaction rather than simply machine operation.  The fact that the statements were generated automatically by Google software did not prevent Google from being a publisher of those statements, once Google was notified and a reasonable time for their removal had passed.

The Court also found that providing a hyperlink to defamatory material accompanied by a snippet from the offending website made Google a secondary publisher of that defamatory content.  In support of this conclusion, the Court cited the Supreme Court of Canada’s reasons in Crookes v Newton (previously reported in E-TIPS® newsletter here, which provided that hyperlinking could constitute publication of defamatory material where the hyperlink is associated with text that repeats defamatory content.