In the age of social media and widespread internet publications, many Internet users fear the risk of defamation claims brought against them. The recent case of Duffy v Google Inc  SASC 170, however, has shown that it is not only the users who are at risk but website hosts and search engines could also be liable for material posted by their users or third party websites.
The Secondary Publisher Doctrine
The case of Duffy represents a significant turning point in defamation law. In this case, Dr Duffy sued Google Inc for defamatory material that came up on search results concerning her name which Google refused to remove. This included search result snippets, third party links and the search engine’s auto-complete. The source of the defamatory material mainly came from a US-based website, Ripoff Reports, and under section 240 of the US’s Communications Decency Act of 1996, websites are not liable for comments made by their users.
Dr Duffy’s case against Google Inc turned on the fact that Google had been alerted to the defamatory material but still failed to take action. The South Australian Supreme Court held that after Google Inc had been notified of the defamatory material, they could be considered a secondary publisher since their continuing publication was the result of human action/inaction rather than machine operation. The test for a secondary publisher’s liability was set out to be that a website host is not liable if they did not know, and could not with the exercise of reasonable diligence have known, of the defamatory publication. This mirrors the defence of innocent dissemination which would apply to a defendant who neither knew nor ‘ought reasonably to have known’ about the defamation. The Court rejected Google’s argument that it could only be a secondary publisher if it accepted responsibility with the knowledge that the defamatory passages were false.
Following the Court’s decision, then, it would appear that website hosts could potentially be liable for material originally published by a third party. Where Google can be liable for the appearance of a third party link and search result snippets on its search engine, other website hosts could also be liable for defamatory material published by their website’s users once they have been notified.
A Growing Trend
While the Duffy case has clarified a search engine’s liability, multiple cases leading up to it demonstrated a trend towards assigning website hosts greater responsibility for any possibly defamatory material published on their website.
In Rana v Google Australia, the Federal Court acknowledged the uncertainty on whether or not Google could constitute a ‘publisher’. In Trkulja v Google Inc LLC (No 5), the Victorian Supreme Court rejected Google’s defence that material on Google Images was unique because it was originally published on another website. The Court stated that the jury was entitled to conclude that Google Inc did intend to publish the material that its automated system produced because that was what search engines were designed to do upon a search request.
The basis of a secondary publisher’s responsibility is the old English case of Byrne v Deane. The court held that where a defamatory note was left on a golf club’s notice board, the golf club would have accepted responsibility for continued publication by consenting to or adopting the continued publication and that this consent could be established by inference. The recent case of Godfrey v Demon Internet Ltd upheld the Byrne v Deane principle, drawing parallels between the golf club and website hosts. Tamiz v Google Inc and Google UK Ltd also upheld the same principle. Ultimately, however, the Court in this case would not attribute liability to Google Inc. As such, a website host that allows defamatory material to remain on its site could be inferred to have associated itself with the continued publication of the material.
The Duffy case has highlighted an important issue in dealing with online defamation claims, namely the cross-border jurisdictional problem that continues to plague cases involving the Internet. Dr Duffy’s case was against Google Inc – a US company – and not Google Australia after the Court ruled that Google Australia had no control over the Google website. Due to the US’s fierce protection of its First Amendment right to free speech, it is highly unlikely that the SA Supreme Court’s orders will be enforceable in the US. In the NSW case of Bleyer v Google Inc, the court held Google was not liable as a secondary publisher for defamatory material produced by its search engine. The Court stated that the unlikeliness of having the judgment enforced in the US was a strong factor in deciding to postpone the proceedings indefinitely.
Notably Bleyer, decided by the NSW Supreme Court, stands in contrast to the decisions made by the Victorian and SA Supreme Courts. This could mean that a plaintiff’s success on similar claims may vary state to state, and potentially lead to issues of forum shopping in the future.
Ultimately what the Duffy case has shown is that Australian website hosts appear to have a higher level of risk than those of other countries. Defamation victims should then think twice about making a claim against a website host if it is based outside of Australian jurisdictional borders.
The law should be aware of the problems associated with holding website hosts liable for material published by other users. The Duffy precedent could trigger a landslide of similar cases against Australian website hosts – where is the line for liability? Would this push website hosts to move their base overseas?
In an arena where new technology intersects with the law, legal principles are still being shaped. At the moment, though, it seems that website hosts should err on the side of caution to avoid being potentially liable for defamation claims.
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