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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. 

ckeall@nbr.co.nz


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.

More by Chris Keall

Comments and questions
16

"A" would have been better off spending his time and money on a decent reputation management service. After four years I'm sure they could have created a positive presence in Google that would have trumped the offending pages and pushed them onto page 2 or beyond.

Interesting idea. I wonder what a cost comparison between the suggested more benign process as opposed to going for the legal jugular may be?

Make Google Pay, they pay zero, yes zero taxes in NZ about time we look after our own!!

Spot on! Its embarrassing working in Online in NZ. When asked about the future of Online Media and Ecommerce in NZ John Key said - we are getting fast broadband! Shows the leaders of the country know nothing about it and are doing nothing to get us up to speed. We are being left so far in the dust compared to almost all countries not just the western world.

What are the nature of the remarks? How are we to be sure that they aren't in fact the truth? I personally have no idea about this, but it is pretty common for people to resort to this kind of lawsuit to shut out critics..

or toss a coin and its all a defamatory lie thats published with no legal recourse of substance.

...surely this guy has an obligation to mitigate his loss and what "Reputation Management" suggests would do exactly that.
Any suggestion that Google has a responsibility for being anything other than a search engine would have a chilling effect on the value of search engines on the internet. Maybe what is published about 'A' is defamatory. But what about websites that publish true material that would then be blocked due to the kind of legal action that 'A' is attempting?

Surely the dr should turn his attention to the writer and publisher of the offending material.

Medical professional -- not much of a professional. Reputation management service would be far more cost-effective.. or could do same things for himself, nearly for free.

Lastly, question exists as to whether the posted allegations may be largely true.

Judging by plaintiff's litiguous approach & failure to pursue simple constructive remedies, I'd expect his standard of medical care/service to be potentially at issue.

So let's know his name! And the alleged problem.

Fair enough I say. He has a right to protect his reputation. There are some really sick and sad people out there. Unfortunately, I don't see Google doing anything about it, let alone answering any complaints. It's really hard to get a response out of them for anything at all.

He's trying on the Dotcom process and the ISP copyright shutdown process, whereby a conduit is deemed to be responsible for what it carries and a storage bin is deemed to be responsible for what is in it. If that thinking succeeds then the whole internet is under threat.

Actually, I read an a legal opinion last year that linking to content couldn't be classed as an offence. Forget who wrote it, may have been bell gully or chapmantripp...

There are plenty of crooks on the internet who have defamed good and honest working people and companies. Google does not take responsibility unless it is going to hurt google's bottom line. Google does not even have the staff to deal with anyone's complaints unless it is affecting them big time. In other words- forget about trying to get google to help you because they can't do it.

Interesting issue, as Google lists URLs to copyrighted material. Do the Movie Studios request Google to remove the links and do Google actively monitor and remove links to pirated content ?

@ Mr Lemon You are correct. The High Court in the UK recently held that Google is merely a "platform provider", not a publisher, so following this ruling as guidance the doctor's case would be unsuccessful. See http://tinyurl.com/7nkvk5o

this is a total yawn of a story but at least it doesnt involve a fat german oink, John campbell or Apple...