On October 4, 2017, the Supreme Court of South Australia (Court), in Google Inc v Duffy, [2017] SASCFC 130, affirmed that Google is liable for the publication of defamatory content consisting of hyperlinks and short text excerpts in search results for the claimant’s name. The Court affirmed that Google was a secondary publisher of the defamatory material.

The claim arose out of consultations between the claimant and various online psychics. The online psychics predicted a positive relationship between the claimant and her romantic interest, which proved to be incorrect. The claimant posted complaints about the psychics on a website called “the Ripoff Report” and engaged in an online campaign against the psychics, including impersonating other disappointed clients. The psychics responded by posting written details of her activities, also on “the Ripoff Report”. These posts referred to the claimant as a “psychic stalker.” These results were recorded by Google’s crawlers, and relevant excerpts of the reports were included in Google searches of the claimant’s name.

The claimant complained to Google and asked it to remove the hyperlinks and descriptions appearing in search results. Google refused to remove the results, and responded (wrongly) that it could not remove the results without cooperation from the site’s webmasters.

The Court issued split decisions on some aspects of the law of defamation, but it was unanimous in finding that Google had knowledge of the probable content of future search results of its search engine from the time that the claimant provided notice. From that point, Google’s dissemination of the content was no longer innocent, and Google is liable for references to the defamatory material which are not taken down within a reasonable time.

The case is significant, and may have implications throughout the common-law world. According to the Australian Court, Google’s display of search results is an indispensable, proximate step in the content’s publication, and as a result, Google can be found liable as a publisher of defamatory material where it has been provided with notice and a reasonable amount of time to remove the defamatory content.

Summary By: David Bowden

E-TIPS® ISSUE

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