by Cian Clinch July-30-2021 in Litigation & Dispute Resolution, Commercial & Business, Data Protection, Defamation
In June 2021, the Victorian Supreme Court of Appeal upheld an important decision of the Supreme Court of Victoria concerning the law of defamation.
In that case, Mr Defteros initiated proceedings against Google, alleging that when a Google search was made of Mr Defteros’ name, hyperlinks to defamatory articles and images concerning him were returned. Mr Defteros submitted that the alleged defamatory content implied that he was involved in criminal endeavours. The Supreme Court ordered Google to pay Mr Deftero $40,000 (approximately €25,000) in damages.
On appeal, the Court of Appeal upheld the finding that, in providing URL hyperlinks within its search results to webpages containing defamatory content, Google was a “secondary publisher” of the defamatory material.
The Court found that the combination of the search results and hyperlink returned by Google’s search engine filtered trillions of webpages, enticing the reader to click on the impugned links for more information. The Court of Appeal accepted the analogy that it was akin to a librarian who, instantaneously, fetches a book from the shelf and delivers it to the user, bookmarked at the relevant page. Therefore, Google was found to publish the web page once opened.
By virtue of the fact that Google was held to be a “publisher” of the defamatory material, the Court found that Google had a duty to remove the hyperlinks within a reasonable time upon notification of the defamatory content being in existence. In this case, seven days was found to be a reasonable timeframe. The fact that Google had been notified by Mr Defteros that the content was of a defamatory nature was not disputed. However, though Google contended that it was following internal policies in dealing with the matter, the Court held that “Google had the capacity to alter subsequent search results by blocking this URL … [it] chose not to do so”.1
It should be noted that this approach to secondary publication of material in this manner has not been accepted in Ireland. However, the Irish courts have noted that this particular topic has not been subjected to judicial consideration and that it is an area of law that may well change in the context of tweets or the results of searches.2
As the world’s largest media companies face increasing scrutiny over their handling of user-generated offensive and defamatory material, this judgment serves as an important reminder of the dangers of reproducing third-party content on websites. In this regard, the Australian Court did not limit the principle to internet service providers – it may be applicable to any website containing a link to third-party sites. Organisations should also be mindful of Article 14 of the E-Commerce Directive, which provides that an organisation shall not be held liable for user-generated content provided it has no knowledge of any illegal content or activity, and provided it acts expeditiously upon knowledge of any such activity.
If you have any queries regarding defamation law or other related aspects of media law, please contact Cian Clinch at cclinch@hayes-solicitors.ie .
1 Defteros v Google LLC [2021] VSCA 167
2 Savage v Data Protection Commissioner and Google Ireland [2018] IEHC 122, paragraph 40
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About the Author
Cian Clinch
Cian is a partner in the Commercial & Business team at Hayes solicitors. He predominantly specialises in commercial litigation and dispute resolution and has acted for a variety of companies and financial institutions in contract, debt, insolvency, restructuring and recovery matters.