Google Inc. has been held liable for publishing defamatory material. The internet giant will be regretting its choice to ignore Janice Duffys request to remove offending search results that included auto completed suggestions such as “Janice Duffy Pyschic Stalker”.
Google did not produce the offending material so why is it liable?
Google faces liability as a secondary publisher. Google sought to defend this charge by arguing that its automated operation (which resulted in the defamatory material becoming available) was not “publication”. Justice Blue struck down this argument recognising search engine operators as ‘well known secondary publishers’ of data who will face liability for the alleged defamatory material if it can be proved they had known about it, which Google undeniably did. It is important to note Dr Duffy was not claiming liability before the period of notice. Justice Blue emphasised that Google became liable only after its personnel were made aware of, and refused to remove, the defamatory material. It’s existence after this point a direct result of human action (or inaction) as opposed to machine operation.
Googles liability was not restricted to the search engines automated website snippets and autocomplete suggestions, it also extended to third party webpages accessed via hyperlinks. In order to avoid being held accountable for these defamatory sites Google would have to restrict the relevant search results to basic URLs with no ‘linking’ ability and no accompanying text.
The decision has the potential to open up a floodgate of complaints by individuals requesting information be removed. Google is set to become a defamatory expert as it will have to assess the validity of these complaints before leaving or removing the material. Given the company faces up to $376, 500 for each individual claim, non- removal could be an expensive mistake.
Duffy is set to return to court to finalise remaining issues, in particular what damages will be awarded. Until then, you might be interested to see what results your name brings up…while sticks and stones may not hurt the search engines bones, defamatory words certainly can.