Last week, Justice Malcom Blue of the Supreme Court of South Australia ordered Google to pay $100,000 (AUD) in damages (plus interest) in a landmark internet defamation case. Several weeks earlier, the Supreme Court of South Australia handed down an unprecedented judgment against Google in a multi-year legal battle that originally arose out of Ripoff Report postings about Dr. Janice Duffy.
While the judgment and subsequent order of damages (which Google will no doubt appeal) obviously does not carry any weight in the United States, the ruling out of Australia is nonetheless interesting and seemed worthy of a discussion.
Duffy’s internet defamation case was a product of harmful search results pertaining to her, including “Autocomplete” search suggestions, specifically relating to Ripoff Report postings accusing Duffy of stalking psychics.
According to a write-up about the case by a trio of Australian lawyers, Duffy had had a negative experience with psychics and posted negative comments on Ripoff Report about them. Then, some of the psychics retaliated with the allegedly false defamatory remarks about Duffy.
As many people and businesses are aware of today, Ripoff Report postings (which the website will not remove) tend to rank highly in Google search results. This was certainly the case for Duffy, then a former South Australian health researcher, who later would allege financial and psychological damage as a result of the Ripoff Report postings easily found on Google.
In 2009, Duffy asked Google to remove a Ripoff Report URLs from its search results, but Google failed to do so until November 2011 – several months after she filed her defamation lawsuit against Google in February of that year.
At some point in between, Duffy also realized that, in searching her name on Google, Google auto-suggested the term “Janice Duffy Psychic Stalker” in the search field. Her removal requests pertaining to Google’s Autocomplete suggestion were also initially denied.
Recap of the decision
In short, the legal between Duffy and Google, which has spanned several years, consists of Duffy alleging Google defamed her and Google disclaiming liability on the basis of it not publishing the content in question.
Regarding primarily the issue of defamatory articles appearing in the search results, in Justice Blue’s 144-page opinion from Oct. 27, 2015, he said it is “well-established” in Australia that search engine operators are secondary publishers. According to Australian law, a secondary publisher can be held liable for defamation if they have knowledge of the defamatory matter.
In this case, Google did, in fact, become aware of the defamatory Ripoff Report content – specifically both the search results and auto-suggested search terms – and it did not do anything about it for quite some time.
As for the Autocomplete issue itself, Justice Blue wrote that if Google was made aware of the text automatically generated by its software and failed to remove it upon being notified, its “continuing existence” on Google.com was the “direct result of human action or inaction.”
Analysis from U.S. perspective
According to a June 16, 2015 post by Duffy on her blog, Google had then paid “three law firms, two barristers and a QC literally hundreds of thousands of dollars rather then [sic] just remove the links to the defamatory content.”
Yet it comes as no surprise that Google was not quick to remove allegedly defamatory content that it did not publish (at least from the American perspective of being a publisher). After all, Google has already reluctantly been complying with the European Union’s 2014 “Right to Be Forgotten” decision and has received nearly 350,000 URL removal requests, under it, as of Thanksgiving.
In the United States, it is well-established that Google cannot be held liable for defamatory content published by third parties, under the Communications Decency Act of 1996. Here, a successful case involving just the search results generally requires taking legal action against the authors of the Ripoff Report postings, obtaining a valid court order or court orders against the defendants (mandating removal of the offending URLs from search results) and presenting the order(s) to Google for removal. Suing Google simply will not work.
Of course, one of the primary issues in the Australian case was that typing “Janice Duffy” into Google’s search function yielded an automated suggestion of “Janice Duffy Psychic Stalker.” In the United States, while far from a slam dunk, an American litigant might be able to similarly challenge Google, but difficulties would include: 1) proving that a statement such as or akin to “psychic stalker” is not protected speech, and 2) that he or she has suffered damages – challenging in most internet defamation cases.
Obviously, Australian law differs, but the result in Duffy’s case against Google still came as a surprise. In fact, Techdirt had dubbed this “a ridiculously misguided lawsuit on multiple levels.” But Duffy’s efforts not only resulted in the Australian court holding Google liable for defamation, but she has now been awarded $100,000 in damages, plus $15,000 in interest.
It should be pointed out that removals from Google’s search results, with the exception of EU-wide removals, are independent of one another; there is no such thing as a “global” removal from all Google search pages. For example, a Google Australia search of “Janice Duffy” yields no RipoffReport.com URLs, whereas a Google.com (USA) search of her name lists a Ripoff Report posting as the top result. Of course, Duffy’s legally protectable reputation lies in Australia, not in the United States, so it would not be worth it for her to attempt to get that URL removed from Google.com and other Google search sites.