A few days ago the NBR reported that a medical professional is seeking summary judgment against Google in the High Court over defamatory links that appeared and, given the content’s changing URLs, continue to appear in Google search results.
According to the NBR, the plaintiff’s lawyer has said the case raises two novel issues:
- whether Google’s search engine is a “publisher” for the purposes of the law of defamation; and
- whether (if it is a publisher) the innocent dissemination defence could apply so as to afford Google a defence.
This is a fascinating case because these issues have not been squarely considered yet by a New Zealand court. According to the NBR article, the case has been heard but Justice Abbott has reserved his decision, meaning we await His Honour’s judgment.
To understand the case and how the Court might decide it, it helps to understand the core elements of defamation and the innocent dissemination defence referred to above.
Elements of defamation
The tort of defamation consists of:
- a defamatory statement;
- made about the plaintiff;
- published by the defendant.
A statement (and in some cases something other than a statement, such as a drawing or photo) may be defamatory if it tends to lower the plaintiff in the eyes of the right-thinking person, if it exposes the plaintiff to hatred, ridicule or contempt or makes others shun or avoid the person.
So far as innocent dissemination is concerned, section 21 of the Defamation Act 1992 states:
21 Innocent dissemination
In any proceedings for defamation against any person who has published the matter that is the subject of the proceedings solely in the capacity of, or as the employee or agent of, a processor or a distributor, it is a defence if that person alleges and proves—
(a) that that person did not know that the matter contained the material that is alleged to be defamatory; and
(b) that that person did not know that the matter was of a character likely to contain material of a defamatory nature; and
(c) that that person’s lack of knowledge was not due to any negligence on that person’s part.
Google’s two-fold defence, then, appears to endeavour to establish that:
- a core element of the tort is not satisfied, on the basis that Google has not “published” the allegedly defamatory comments; or, alternatively
- Google can rely on the section 21 defence on the basis that it is an “innocent disseminator”.
The first – “publication” – issue
The first broad issue has been considered recently in a number of English cases. Among those cases, Metropolitan International Schools Ltd v Designtechnica Corp & Ors  EWHC 1765 (QB) (16 July 2009) dealt expressly with the question of whether Google could be liable as a publisher when search results yielded defamatory snippets sourced from one or more sites on the web. On the facts of that case, Justice Eady held that Google was not a publisher in such circumstances, stating (at paragraphs 50-51):
“When a search is carried out by a web user via the Google search engine it is clear, from what I have said already about its function, that there is no human input from [Google Inc]. None of its officers or employees takes any part in the search. It is performed automatically in accordance with computer programmes.
When a snippet is thrown up on the user’s screen in response to his search, it points him in the direction of an entry somewhere on the Web that corresponds, to a greater or lesser extent, to the search terms he has typed in. It is for him to access or not, as he chooses. It is fundamentally important to have in mind that [Google] has no role to play in formulating the search terms. Accordingly, it could not prevent the snippet appearing in response to the user’s request unless it has taken some positive step in advance. There being no input from [Google], therefore, on the scenario I have so far posited, it cannot be characterised as a publisher at common law. It has not authorised or caused the snippet to appear on the user’s screen in any meaningful sense. It has merely, by the provision of its search service, played the role of a facilitator.”
The Judge also held that the position was not any different once Google had been informed of the defamatory content of a “snippet” thrown up by the search engine, concluding on the facts before him that it was “unrealistic to attribute responsibility for publication to [Google], whether on the basis of authorship or acquiescence” (paragraph 64).
If the New Zealand High Court were to agree with the English approach to this issue, then – assuming the facts are materially similar – a core element of the tort would not be satisfied and the claim would fail. Whether the Court would make such a finding in a summary judgment application, however, may depend on whether there are any disputed questions of fact that have a bearing on the legal outcome. That’s difficult to predict without having seen the statement of claim and without having heard the argument during the summary judgment application. If there are such disputed questions of fact and if the Court feels it needs to hear full argument on them then it may decide the case needs to proceed to a full hearing.
The innocent dissemination issue
If the first issue were not decided in Google’s favour, the court would need to consider the innocent dissemination defence. While no New Zealand case has considered application of the defence to the current facts, there is a good chance, in my view, that a court would hold the defence to be available.
Google’s argument, based on section 21, is likely to have been along these lines:
- to the extent it can be said that Google is a publisher of defamatory snippets when those snippets appear in search results, Google publishes them solely in the capacity of a processor or distributor; and
- Google did not know and could not know that the search results contained the material alleged to be defamatory; and
- Google did not know and could not know that the search results were of a character likely to contain defamatory material; and
- Google’s lack of knowledge in this regard was not due to any negligence on its part.
As to the first limb of the argument, it is relevant to note that the Defamation Act defines “distributor” to include (i.e., the list is non-exhaustive) a bookseller and a librarian and defines “processor” to mean “a person who prints or reproduces, or plays a role in printing or reproducing, any matter”. It is certainly arguable that Google, in dishing up search results, is a distributor or a processor or both.
Moving away a bit from the facts of the Google case, some people question the section 21 defence’s availability to those who directly control websites (even if they don’t moderate user content before publication). In addition, the Law Commission, while opining that ISPs probably fall within the definitions of “processor” and “distributor”, has recommended on three occasions now that the definition of “distributor” be amended to include reference to ISPs, with a new definition of Internet Service Provider, the precise intended breadth of which is unclear. At the same time, however, in Police v Slater  DCR 6, Judge Harvey appears to have contemplated the section 21 defence applying to defamatory comment left on blog sites (i.e., by others) until such time as the blog owner becomes aware of its defamatory nature. Citing the UK case of Godfrey v Demon Internet  QB 201, Judge Harvey said (at paragraph ):
“Bloggers may be liable in defamation if they post defamatory comment or alternatively allow defamatory comment to remain upon their website once they have been advised of its defamatory nature in which … case they can no longer rely upon the defence of innocent dissemination.”
If the defence could apply to protect a blogger, surely it could apply to protect Google. However, the issue did not arise in Police v Slater and Judge Harvey’s comments on it were made in passing.
The case currently before the High Court provides the Court with a rare opportunity to bring some much needed clarity to New Zealand law on the issues raised. For my part, I hope the Court will:
- undertake a detailed analysis of whether a range of online intermediaries can be considered publishers for the purposes of the tort of defamation, both at the point when they are unaware of the appearance of defamatory material on or through their channels or sites and when they subsequently become aware but don’t remove it after a reasonable period of time; the range of intermediaries would include search engine providers like Google, internet service providers in the orthodox sense of those who provide internet connections, web hosting service providers (which can range from hosting companies like Rackspace to individuals or companies who purchase reseller accounts and offer hosting to clients to individuals who can handle their own web server set-ups), and organisations and individuals who own or control sites (e.g., blogs, forums, wikis, social networks) – regardless of where they are hosted – that enable third parties to post content that is not moderated or edited before it is published; and
- provide detailed guidance on the breadth of section 21 of the Defamation Act, including whether the terms “distributor” and “processor” capture a range of online intermediaries, i.e., the same range of intermediaries referred to above, in circumstances where those intermediaries provide the means for others to publish content but don’t play any active role in determining what is published or when it is published.
I may be somewhat hopeful here, as the Court is unlikely to have heard argument on this wide range of intermediaries, may be reluctant to comment on them and indeed does not need to comment on them to resolve the application. What New Zealand needs in this space, however, is a set of unifying principles. Whatever the case, I’m sure that – like me – there are many who look forward to Justice Abbott’s judgment.