While Chris Cairns' successful efforts in the UK High Court to defend his reputation against allegations of match fixing made on Twitter have been widely covered in the media, an equally interesting case of online defamation has been playing out in the New Zealand courts. Cairns was awarded £90,000 in damages and £400,000 in court costs, in a decision which – although heralded as the first instance of a successful defamation claim being made following a tweet – did little more than apply existing defamation principles to a new medium.
Closer to home though, a New Zealand medical professional known only as "A" is taking on Google in the High Court in an attempt to have defamatory online posts blocked from Google's search results. The case will consider the interesting question of whether Google has a duty of care with regard to the content of information displayed in its search results.
In 2008, an anonymous poster (acting under a pseudonym) posted allegations that A had been caught in an indecent act involving children. The post included A's full name, address and contact details. Unable to find the identity of the poster or to have the site's owners take down the post, A contacted Google and asked it to block the post in its search results. Google initially complied, but over time the post kept reappearing. Frustrated with having to relive the embarrassment time and again, A applied to the High Court for a summary judgment against Google NZ.
In defence, Google NZ has argued that A was essentially suing the wrong company. Google NZ was described in court as a "shell company" with only seven employees, and could not take responsibility for removing links to defamatory information on the search engine, which is operated by US parent company Google Inc. The judge's decision has been reserved.
The case is likely to shed light on two current challenges in defamation law, namely what constitutes a "publisher", and what counts as an "innocent dissemination of information" in the digital space. Although this particular situation has not been considered by the High Court before, there are a number of similar cases that have been decided in New Zealand and overseas, including:
- The UK decision in Metropolitan International Schools Ltd v Designtechnica Corp & Ors  EWHC 1765 (QB) (16 July 2009) which held that Google's activities did not count as "publishing" for the purposes of defamation; and
- The NZ District Court's decision in Police v Slater  DCR 6, which stated that bloggers cannot rely on the "innocent dissemination" defence if they allow defamatory comments to remain on their website once they have been advised of the comments' defamatory nature.
The High Court is not bound to follow either of these cases, but both are likely to be persuasive. However, regardless of whether the High Court follows the UK position, or chooses to cut its own path, the decision will again put in the spotlight the extent to which a search engine should be liable for the content of its search results.