Janice Duffy has been vindicated by the Supreme Court of South Australia in her case against Google. While that’s good for Dr. Duffy, the case sets a problematic precedent that could impair online speech and create broad liability for “secondary publishers” such as Google, Facebook and others.
Roughly six years ago, Duffy was embroiled in a reputation flame war on Ripoff Report. Without going into the underlying statements, Duffy claimed she had been defamed and her reputation injured by her opponents on Ripoff Report.
She asked Google to remove the allegedly defamatory content from search results for her name. Google declined, and she wound up suing the company, which disputed liability and fought the litigation in Australia, where Duffy resides.
Upon the filing of the litigation in 2011, Google did remove the disputed content from its search results. But apparently, auto-complete suggestions still showed some of the defamatory content in response to queries on Duffy’s name.
Two weeks ago, the case was decided in Duffy’s favor. Damages have yet to be determined. However, the Australian court asserted that Google’s defenses against Duffy’s claims were not established because:
Search engines and web hosting companies, among others, are “secondary publishers” under Australian law.
Secondary publishers have liability for defamatory third-party content unless they have no knowledge of that content.
Google was put on notice of the alleged defamation by Duffy in 2009 but failed to act until 2011.
Google’s subsequent action to remove the content did not happen within a “reasonable time” after the company was put on notice.
Google (re)published the defamatory content to search engine users.
Anyone who reads the underlying material will probably be sympathetic to Duffy and her situation. Duffy claimed in email that Google tried to financially outlast her in the litigation, which is why she represented herself in the matter. She also lamented the litigation as wasteful. “This was all so unnecessary,” she wrote in email. “All Google had to do was remove the links and I would have gone back to my life.”
As mentioned, the damages have yet to be determined, but liability has been established. The case doesn’t necessarily create new law. In Australia, Europe and other jurisdictions, there are “intermediary liability” laws that offer notice and takedown rules for online service providers and others that host or index content.
Existing laws provide that intermediaries or secondary publishers may become liable once notified of illegal content if they fail to act. The US has some similar laws around copyright, but the laws surrounding defamation are different. Generally, US law provides immunity in cases of alleged defamation to online service providers. Despite the immunity for intermediaries in the US, the underlying online publisher (e.g., Ripoff Report) remains liable.
In the Duffy case, Google can appeal to the High Court of Australia. But there’s risk, because the High Court could affirm the Supreme Court of South Australia’s decision, reinforcing and strengthening the precedent, risking its application broadly across Common Law jurisdictions and Europe.
In a recent editorial, Sunita Bose, Australian policy director of Change.org, wrote that the decision in Duffy is troubling because Google and others will probably be forced to “take sides” in defamation cases once notice is provided. In cases involving purely private individuals, this may be less problematic — hence the analogy to Right to Be Forgotten.
But in some cases, public interest issues are being raised (e.g., a corporate whistleblower). The threat of secondary publisher liability may enable bad actors to try to silence critics by threatening litigation against intermediaries that aren’t responsible for the content. Secondary publishers will either need to get into the game of evaluating the content’s veracity or, more likely, simply remove content to avoid potential liability.
Having said all that, I also want to acknowledge that this isn’t a simple matter. Content publishers that enable or allow illegal/defamatory material may be beyond the reach of the individuals harmed, so going after third parties becomes the only practical way to address the underlying bad behavior.
Yet courts, legislators and regulators must be extremely careful to balance competing values and policies, so that public-interested speech isn’t compromised in the effort to protect the privacy and reputations of individuals.
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