Online defamation developments
The decision in Rana v Google Australia Pty Ltd handed down in February this year found that Google Australia was not liable for defamatory statements published on a website that Google had provided links to in a search result page. However it was held that its parent company, Google Inc. could potentially be liable.
This case is important for Australian website owners, highlighting the caution needed when providing links to any material that may be potentially defamatory.
Background
Mr Rana, acting as a self-represented litigant, claimed damages against both Google Australia and its parent company, Google Inc., for publishing defamatory material. The material stated, among other things, that he was an alcoholic with brain damage, sent emails in other people’s names, and was a continual bankrupt.
Mr Rana considered Google to be liable on the basis that it hosted the websites which contained the defamatory material, and also made the material available through links in Google search engine results.
Claim against Google Australia
The Court found that Google Australia was an inappropriate defendant in the proceedings, as it did not own the domain names in question or have control over the search engine algorithms. In order to be held liable as a publisher of defamatory material, a defendant must have the ability to control or prevent publication of that material.
In support of this, Justice Mansfield cited the New Zealand Case of A v Google New Zealand Ltd, where it was held that Google New Zealand was not considered liable for defamatory statements accessible through the ‘google.co.nz’ domain name as the operation and control of the Google search engine resided with Google Inc. and not with Google New Zealand.
Relying on this reasoning, the Federal Court dismissed Rana’s defamation claim against Google Australia.
Claim against Google Inc.
The Court then went on to consider the claim against Google Inc., the ultimate holding company of Google Australia, located in the United States.
The Court noted that the law in regard to search engine providers being publishers of defamatory material is not settled, and accepted that a party’s failure to remove defamatory material from property it controls can in some circumstances make that party responsible for the publication of the material.
Justice Mansfield referred to a UK case which held that Google Inc. could not be liable for defamatory material found via its search engines as it was clear that there was no direct human input into the search result (being an automated computer algorithm) and Google Inc.’s role was therefore purely passive. An analogy was given that if a wall is grafittied with defamatory statements overnight, the owner of the wall does not necessarily become the publisher of those statements.
In contrast, a 2012 Victorian case against Google Inc likened Google’s search engine to a newsagent selling a newspaper with defamatory content, as it operates precisely as intended by its owner and therefore is distinguished from the hapless owner of the graffitied wall.
Justice Mansfield ultimately concluded that it was possible that Google Inc. may be liable for the allegedly defamatory material in certain circumstances. However he refused to grant leave to serve the proceedings overseas because of a lack of clarity in Mr Rana’s statement of claim. As a result, this this area of law continues to be unsettled in Australia.
What this means for website owners
Given the unsettled nature of this area of law, Australian website owners should be cautious in providing links to any material that may be potentially defamatory.
While Certus Legal Group has previously blogged about cases in the United States and Canada which held that links to potentially defamatory ideas and information on internet websites will not constitute defamation, this case has shown that Australian courts have not yet decided on the principles to apply in this area.
If you are concerned about any links or searches conducted on your website, or seek advice regarding online defamation law, please contact Certus Legal Group.