Defamation action against Google NZ dismissed on technicality
UPDATE Sept 12: A defamation action against Google NZ has been dismissed by the High Court.
A psychiatrist wanted the company held accountable as a publisher for including links to defamatory articles about him in its search results. He plans to appeal the decision.
Google did address the question of whether it could be held accountable as a publisher, instead arguing that legal action should be taken against Google Inc, based in the US, not Google NZ, which it described as a sales operation only.
"The application for strike out is dismissed on the grounds that this is a developing area of the law and that it is arguable that the defendants are publishers," Associate Judge David Abbott wrote in his decision.
The plaintiff’s concern that removal of specific web pages and deactivation of the hyperlink appears to be an impotent response may turn out to be a matter more suited to determination by legislation."
Lawyer and intellectual property specialist Michael Wigley said while the case was thrown out on a technicality (that Google NZ had been sued rather than Google Inc), Justice Abbott indicated in his non-binding comments he would otherwise have let the case go to trial.
Matthew McClelland, who represents the plaintiff, known only as "A" said the psychiatrist couldn't afford to pursue Google Inc through the US court system.
Mr Wigley said in terms of an injunction - forcing Google to take down offending links - an action would have to be taken in a US court.
In terms of seeking later damages, action could be taken through a New Zealand Court as long as Google Inc was named as a defendant.
Man takes Google NZ to High Court over defamatory links
March 5: A medical professional has taken Google to the High Court, seeking a summary judgment in a potentially precedent-setting case over defamatory links.
Google's legal team is not arguing over whether the search engine can be regarded as a publisher, or not, instead asking for the case to be dismissed on a technically - that its NZ subsidiary is the wrong legal entity to take action against. The plaintiff argues he cannot afford to sue search engine's US-based parent, Google Inc.
The New Zealand, man, known only as “A”, was the subject of post to a US site in 2008.
His lawyer, Matthew McClelland, said it was “difficult to imagine a worse defamation” than the post, which included the man’s address and contact details (the man’s identity and identifying details have been suppressed).
“If you Google his name then a reference comes up and very plain for the world to see what has been said about him,” Mr McClelland said.
Following a letter to Google NZ, parent company Google Inc had removed an offending URL (web address) from its search engine results. But links to the information at alternative URLs soon appeared. "A" had also followed an online help form process suggested by Google, which had led to offending links being blocked. However, the information soon reappeared in search results. "A" found it demoralising and depressing to constantly repeat the process.
Associate Judge David Abbott said the offending post was something of a chameleon but rather than changing its spots, it changed its URL.
Google NZ had not responded to “A”’s letters, but Google Inc’s action early in the affair indicated that correspondence was being passed on to its parent company, Mr McClelland argued.
Associate Judge Abbott described the process as “A bit like trying to stamp out a bush fire in a strong wind.”
Mr McClelland said the case had two novel elements: whether Google’s search engine be considered a publisher, and whether the innocent dissemination of information defence could be applied.
There was also the question of whether Google NZ – described by Google Inc as a shell company, but employing seven – was responsible for removing links to defamatory information from its search engine.
In correspondence to "A", Google Inc suggested to "A" that he contact a website's webmaster to get defamatory material removed, Mr McClelland said. Google Inc itself was not responsible for defamatory links.
“A” could not afford to take legal action against Google Inc, Mr McClelland said.
Google NZ, represented by Simpson Grierson partner Tracey Walker, argued that “A” was suing the wrong company.
“A” has asked for a summary judgment. Google has requested a counter summary judgment dismissing the case.
Associate Justice Abbott reserved his decision.
A spokesman for Google declined to comment on the case.