A Google search may define your reputation. However, Google is only liable for defamation where it is notified about defamatory search results. So you have to remain vigilant about watching what’s out there.

In the recent South Australian Supreme Court decision of Duffy v Google,[1] Google was found to have published defamatory comments by its search results and auto-complete search suggestions.

This “watershed” decision confirms the on line application of the traditional concept of who, and in what circumstances someone is a publisher of defamatory material. Critical to the decision was that Ms Duffy, accused of being a “psychic stalker” on various websites, had alerted Google to the material and requested Google to remove it from its results.    

DEFAMATION IN THE INTERNET AGE

Defamation law exists to protect your reputation. To achieve this, the law must confront the 21st century way in which reputation is most prolifically damaged: through widespread internet dissemination. 

Often what ruins a person’s reputation is not the original publication. It is the accessibility of that publication, and the prominence it is given on websites such as Google. Publications go viral in a matter of minutes. They can be accessed throughout the world and become a prominent hyperlink when your name is searched.

Duffy v Google is the most recent development of the law responding to these evolving forms of social interaction. 

FACTS OF DUFFY

Duffy concerns the plight of a woman who found that her name, when googled, came up with links to internet sites that falsely alleged she was a “psychic stalker”.

She asked for the search results to be removed, but Google refused. She later found the same phrase turned up in an auto-complete suggested search of her name. 

Ms Duffy commenced proceedings against Google for defamation. She succeeded in proving that Google had published defamatory material. Remaining issues such as causation and remedies will be decided in a separate trial.

WHAT ABOUT THE DEFAMATORY WEBSITES THEMSELVES?

Defamation law distinguishes between those involved in primary publication (such as the original author, editor or publishing entity of a publication) and those that simply disseminate it. 

In an action for defamation against a “primary” publisher, it is not necessary to show the publisher had knowledge of the defamatory material as it is presumed.

However, as in Duffy, the original author is often not sued due to jurisdictional issues or an inability to meet an award of damages. For these reasons, actions against disseminators such as Google are growing.

GOOGLE DIDN’T CREATE THE DEFAMATORY WEBSITES, BUT IT KNEW ABOUT THEM

Generally, a person is not liable for disseminating defamatory material until they are alerted to the fact it is defamatory. After becoming aware, any inaction to prevent continuing dissemination may amount to ‘publication’, even if the involvement falls short of authorising, adopting or accepting responsibility for the publication.

That principle was applied in Duffy. Merely structuring results by algorithms based on search patterns and statistics did not make Google liable for defamation. 

Its liability arose when it was alerted to the defamatory material and failed to prevent its continuing publication after a reasonable time. This was the human action that gave rise to Google’s liability as publisher.

INTERNET SERVICE PROVIDERS’ LIABILITY FOR DEFAMATION?

The judgment distinguishes between the liability of Google and internet service providers. The court found that Google fulfils the physical element of publication by actively generating search hits, whereas an internet service provider plays a passive role in merely providing access to the internet.

This suggests that internet service providers remain unlikely to be a target for publishing defamatory material.

KEEP AN EYE ON YOUR INTERNET REPUTATION

There is concern that the decision in Duffy will erode freedom of, and access to, information if Google and other disseminators start removing anything that someone says is defamatory. It might. 

But this decision hasn’t come out of nowhere. It arrives in the wake of Europe’s recognition of the “right to be forgotten” and mounting pressure on platforms such as Facebook, Twitter and Instagram to block inappropriate content.

 We are in the midst of a global balancing act between unlimited access to information, and the protection of people’s control over information about themselves.

Duffy may be appealed. In the meantime, now more than ever is a good time to check what search results come up when you google yourself.