DEFAMATION – GOOGLE HAS TO PAY UP

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26 October 2017

In this recent decision the Supreme Court of South Australia decided on appeal that Google had to pay up for defamation (see Google Inc v Duffy [2017] SASCFC  130).

The Plaintiff requested Google to remove paragraphs from the internet which described her as a “psychic stalker“ on a website called the Ripoff Report.

Google refused to do it and alleged that they were unable to remove the post and secondly that the posts were true and they relied on a defence that the publication was made on an occasion of qualified privilege.

The court rejected the defence of truth and considered the other defences raised.

Section 30 of the Defamation Act 2005 (Qld), which is similar to the South Australian version, provides inter alia as follows:

“1. There is a defence of qualified privilege for the publication of defamatory material to a person (the recipient) if the Defendant proves that –

a.  The recipient has an interest or apparent interest in having information on some subject; and

b.   the matter is published to the recipient in the course of giving to the recipient information on that subject; and

c.   the conduct of the defendant in publishing that matter is reasonable in the circumstances.”

The defence of qualified privilege is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice (s 30(4)).

The Court interestingly considered the common law defence as well as the statutory defence of qualified privilege and in the end decided that the defence of qualified privilege was misguided in the circumstances as the people that may read the defamatory material  would not qualify as people having “an interest” as required by either the common law or the statute.

Whether Google was in fact a publisher of the relevant material did not cause the Court great difficulty as they were specifically requested to remove the material and refused to do so.

It found that Google had the ability to remove the post and did not act as a merely carriage medium, like the provider of a telephone line, but acted as a secondary publisher.

It needs to be remembered that before any action can be taken as to publications on the internet that those responsible for the publication first need to be made aware of the defamatory material and asked to remove it (s 91 schedule 5 of the Broadcasting Services Act 1992 (Cth)).

We assume that this was a good outcome for the Plaintiff as she was awarded $115,000 inclusive of interest in general damages.

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Harry Jordaan, Senior Associate of our commercial litigation team is an accredited specialist in commercial litigation and has practised as a litigator for more than 35 years in three jurisdictions.  Harry possesses a keen interest in the area of defamation law and brings with him a wealth of experience in these types of disputes. Should you require assistance in respect of a defamatory matter, contact our team at Stephens & Tozer.

Category: All / Defamation Law

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