Landmark case: Duffy v. Google Inc.

The 2015 Supreme Court of South Australia case of Duffy v Google Inc. and the 2017 Full Court Appeal are well known amongst defamation lawyers throughout Australia as highly significant decisions. They determined that Google and other search engines can be liable as secondary publishers of defamatory material authored and/or posted by others where search results reproduce such material. These decisions established a substantially new development in defamation law in relation to publications online.

Dr Janice Duffy had been a senior health research officer in the public sector. During 2007 to 2009 articles defamatory of her were posted online by a US website called Rip-Off Report. However, it was the effect of the Google search engine which gave the defamatory material worldwide circulation. All those who ‘googled’ Dr Duffy’s name accessed search results in the form of snippets reproducing defamatory extracts from the Rip-Off Report articles and also links to the complete articles. These were seriously damaging to her reputation and very distressing to her.

Dr Duffy wrote to put Google on notice of their publication of this defamatory material and to demand its removal/blocking from future search results. Google refused and so, through Johnston Withers, Dr Duffy instituted proceedings against Google in relation to all the subsequent defamatory search results about her downloaded in Australia arising from the Rip-Off Report articles.

At trial, Google argued that it was not in any way legally responsible for the defamatory material and ran alternative defences of truth and qualified privilege.

Justice Blue found against Google and in favour of Dr Duffy and awarded her $100,000. Importantly, he held that Google had been a secondary publisher of the defamatory material and, as such, after being put on notice by Dr Duffy that they were publishing search results defamatory of her, Google became liable legally for subsequent publications of such search results.

All three Judges in the Full Court agreed with Justice Blue on that issue, and (by a majority) Google’s appeal was dismissed. For whatever reason Google did not seek leave to appeal that decision to the High Court.

Whilst the issue has not as yet been fully considered and determined by the High Court, it is apparent from a number of Court decisions around Australia following Duffy that search engines and other online publishers of third party material are accepted as being potentially liable in defamation as secondary publishers [1], i.e. where put on notice and failing to remove the defamatory material within a reasonable time.

How long this stays as the law in Australia remains to be seen: there is strong media pressure for legislative changes to be made protecting online publishers (including the likes of Google) in respect of third party posts. This would effectively prevent those defamed online in circumstances similar to Dr Duffy from being able to pursue claims for and recover damages from the platform/website owner or operator which, albeit a secondary publisher of the defamatory material (rather than primary), is nonetheless primarily responsible for the global (or widespread) extent of its publication. Regrettably in many instances, this will deprive an individual whose reputation has been destroyed from a remedy restoring that reputation along with compensatory damages.

Johnston Withers Lawyers is proud of its involvement in advising and representing Dr Duffy throughout the litigation, other than during the trial (when heroically, and successfully, she appeared representing herself before Justice Blue).

[1] and potentially, in certain particular circumstances, as primary publishers, i.e. without proof of notice.