Going after Google: the balance in online defamation laws

Google Australia recently had a small victory in the District Court of New South Wales where Judge Judith Gibson found that Google Australia was not responsible for the material published by its American parent company, Google Inc.

But what many people don’t know is that both Yahoo and Google Inc have been found responsible for defamatory search results published in Australia.

Search engines in Australia can be found liable where they have been asked to remove the material but have unreasonably failed to do so. In 2012, Michael Trkulja successfully obtained judgments in the Victorian Supreme Court of $200,000 against Google and Yahoo! as a result of them confusing him with a notorious Melbourne gangster, but only after a long legal battle.

It’s not easy to sue Google, and nor should it be. Google is a road map to the internet and we don’t want litigation paralysis preventing us from finding useful and relevant material online.

If Google was being regularly sued for defamatory content then it would quickly become another victim of the nanny state, frozen by fear of litigation.

This idea of free speech on the internet has been most vigorously protected in the United States where search engines and contents hosts have broad immunity from being sued.

They are considered to be simply the passive vehicle that people use to do harm. To adapt a phrase from the US gun lobby, “Google doesn’t shoot people, other people do.”

There is a fine line between the law having sufficient strength to protect people’s reputations and imposing onerous burdens on blog hosts. But if Australia wants to maintain any relevance for our laws of defamation then these laws must apply to the online environment.

In Australia, the author of the material remains primarily responsible for the content posted on the internet and, as a plaintiff, they remain your primary target. Search engines and content hosts are at best a secondary consideration and internet service providers have virtually no liability whatsoever.

It is only worth suing Google or a blog host if you can’t find the person responsible for the defamatory material. And history has shown that Google will fight every step of the way. Online bullying and defamation can have devastating impacts on people’s lives.

Blog hosts and search engines should therefore properly consider notifications of defamatory material and take appropriate steps to remove it within a reasonable time. In a tolerant society where Yahoo! and Google have plenty of money in the bank to accommodate these requests, this seems to be the reasonable middle ground.

Ben Patrick is senior associate at Holding Redlich.