Tossing a defamation wrench into the search engine

Marketing brief

I’m an unabashed Google user. It would feel as if my hands were cut off if I couldn’t use a really good search engine several times a day. Google has been that tool for me since 1997.

So when a New Zealand case involving Google turned up in my daily court case feed, I had to check it out. Google New Zealand Ltd (Google NZ) found itself on the receiving end of a defamation action brought by a New Zealand-based psychiatrist in relation to defamatory postings published on a US website.

These results also turned up in search results when the plaintiff’s name was entered as the search term using the domain name www.google.co.nz. It appeared that Google had removed the postings from time to time, but they kept reappearing.

Both sides were seeking summary judgment. The plaintiff contended that the statements were untrue and defamatory, and Google NZ wanted to have the case struck out on the basis that the correct defendant would be its ultimate parent company, Google Inc, which owns and operates the search engine. Google NZ also argued that providing results to a search engine enquiry does not amount to publication.

Google NZ did succeed in its application for strikeout on the basis that it was not the correct defendant. Although this effectively disposed of the case, the court also addressed the issue as to whether a search engine was a publisher for defamation purposes.

The content at issue was the “snippet” of information that appeared in relation to each search result. Snippets are automatically generated and there is no specific control over their content. Even though the court inevitably concluded that any decision on this point would be fact-dependent and thus unsuitable for summary judgment, analysis of similar cases from other jurisdictions proves interesting.

Google NZ contended that it was not a publisher, or if it was, that publication of snippets was innocent dissemination or neutral reportage. Google NZ argued that the development of law in this respect should be consistent with section 14 of the New Zealand Bill of Rights Act 1990, in that a finding of liability against search engine providers would be an unreasonable limitation on the right to freedom of expression. Liability as a publisher would have a chilling effect on the utility of these invaluable gateways to the dissemination of information.

This claim was of course disputed by the plaintiff. And not surprisingly, the court held that summary judgment proceedings were inappropriate for disposing of arguments on these issues, but not before commenting “it may be more appropriate to hold that a search engine is a publisher but with access to the defence of innocent dissemination” and that the concern that removal of specific web pages and deactivation of hyperlinks appears to be an “impotent response” which might be better dealt with by legislation.

In reality, it is difficult to see how legislation could be effective considering the international nature of the relationships between an initiator of the defamatory content, a search engine provider and the person alleging defamation. More to the point, I confess that I was somewhat chilled at the thought of potentially losing access to information via search engines. Google and its counterparts have become such a part of our daily life that it seems inconceivable that we could function without them. Perhaps we just have to accept and deal with the downsides. It’s tough if you are on the receiving end, though!

Rae Nield is a solicitor specialising in marketing law. This article is intended for general information, and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems. Rae Nield can be contacted at raenield@marketinglaw.co.nz.

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