Whether owner of internet search engine is a publisher of the results of searches

Defteros v Google Inc LLC [2018] VSCA 176 (unreported, 25 July 2018, No S APCI 2018 0081, Beach, Hargrave JJA and Sifris AJA).

The question of whether the owner of an internet search engine is a publisher of the results of searches for the purpose of a claim in defamation against that person is obviously an important one in the context of such a claim.

The matter has been considered by the Full Court of the Supreme Court of South Australia in Google Inc v Duffy (2017) 129 SASR 304 and quite recently by the High Court in Trkulja v Google LLC [2018] HCA 25. In the latter case, the High Court said, on an appeal in relation to an interlocutory application to set aside a defamation proceeding and service on the defendant outside the jurisdiction, that the judge at first instance “was correct to hold that it is strongly arguable that Google’s intentional participation in the communication of the allegedly defamatory results to Google search engine users supports a finding that Google published the allegedly defamatory results” ([2018] HCA 25 at [38]). [It is important to emphasise that the Court was concerned with an interlocutory application. It decided for the purpose of the application to set aside the proceeding and service outside the jurisdiction that the judge at first instance was entitled to hold that it was strongly arguable that the defendant was the publisher, not that it was the publisher.]

The applicant sought to strike out allegations in the defendant’s defence that it was not the publisher of the alleged defamatory statements. That application was refused at first instance. The applicant relied upon the cases above. The Court of Appeal referred to the decision of the South Australian Full Court in Duffy and said:

“. . . the Full Court determined that there was no error in the judge’s conclusion that, on the evidence called at trial, Google was a publisher of the results of searches performed by the use of its search engine. Contrary to the applicant’s submissions, the question of whether the owner of a search engine is to be held as a publisher of the results of searches made using that search engine is not purely a question of law but is one of mixed fact and law. Duffy does not stand for some principle that, no matter the evidence that might be capable of being called at a trial, the owner of an internet search engine is as a matter of law a publisher of material produced in response to the initiation of a search.

“At the trial of the applicant’s proceeding, it will be open to both sides to produce relevant evidence concerning the operation of the internet and search engines so as to enable the Court to determine whether or not, on the evidence in this case, the respondent was a publisher of any material produced by the operation of its search engine. The primary judge’s determination that he was not bound by the Full Court’s decision in Duffy to strike out any parts of the respondent’s defence was correct” (at [8]-[9]).

In relation to the applicant’s submission that the trial judge had construed the relevant strike out provision (RSC rule 23.02) too narrowly in that the rule should not be confined to the form of a pleading rather than the legal or factual merit or substance of what is pleaded, the Court said that “there is no defect in the form of those parts of the respondent’s defence that the applicant seeks to impugn. Moreover, as we have said, there is no legal principle that makes the respondent’s pleas untenable (either as not disclosing a defence, or being vexatious, or being such as to prejudice or embarrass the fair trial of the proceeding, or as being an abuse of process)” (at [10] [endnote omitted]).

The Court continued at [11]:

“The decision the applicant seeks leave to appeal is an interlocutory decision on a question of practice and procedure. For the sake of completeness, we should say that, even if we were of the view that there was any merit in the applicant’s arguments, we are unpersuaded that there is any prejudice or injustice to the applicant in leaving the decision of the primary judge unreversed. At the conclusion of the trial, the trial judge will be able to determine on the whole of the evidence whether the respondent was a publisher of any of the material about which the applicant makes complaint. In our view that is the appropriate course which this proceeding should take. We are not persuaded that such additional time as might be required for the calling of relevant evidence and the making of submissions constitutes a relevant prejudice to the applicant. This provides an additional basis for refusing the applicant leave to appeal.” [endnote omitted]
The application for leave to appeal was refused.

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