In A v Google New Zealand Limited  NZHC 2352, the High Court recently considered the question of whether a search engine provider should be responsible for the content of information on a third party website that was accessed via the search engine's search results.
Defamatory statements about a New Zealand psychiatrist (whose name has been suppressed) had been published on a US website. When the psychiatrist's name was Googled, the search results provided a link to the defamatory website and a snippet containing the defamatory statements. The psychiatrist asked Google NZ repeatedly to block access to the offending websites. Some of these requests were successful but inevitably, the defamatory statements reappeared in later Google searches.
The psychiatrist brought summary proceedings against Google NZ alleging that Google NZ defamed him by publishing the defamatory material in the snippets and providing links to the website containing the defamatory results in the search results. He further contended that Google NZ was aware of the defamatory material being provided in the search results but failed to prevent the material and links from being re-published.
Commentators and lawyers hoping that the case would bring some clarity to New Zealand law on the question of search engine providers' liability for content from third party websites that appears in search results will be disappointed by the High Court's ruling. Essentially, the court held that:
- Resolving that issue will require determination of "complex law" in its "proper factual context", which may include assessing whether there is a "stamp of human intervention" in the way that the relevant search engine programme is written and addressing the applicable public policy concerns
- Summary proceedings is not the place to undertake that determination.
However, the court left the door open for future claims against search engine providers. Associate Judge Abbott stated that, in light of the issue being a novel point of law and the "limited" foreign authorities, it is "reasonably arguable that a search engine is a publisher in respect of specific URLs and words" and that it might be appropriate to hold that a search engine is a publisher but has access to the defence of "innocent dissemination" where it has not had notice of the defamatory material.
Long story short? Commentators and lawyers working in this space will have to wait a little longer for clarity on this point of law.