Google and The Law of Defamation – will it survive?
August 2013 | Author Madeleine Stevens, Lawyer, Gibsons Solicitors

Google OfficesLawsuits against Google for content it effectively publishes have now come even further than suing merely for publication of defamatory Google Links, which are the links viewable on the search results page linking through to defamatory material.
The newest hotspot for lawsuits against the search engine giant is in respect of the autocomplete search suggestions.

The autocomplete search suggestions are the automatically generated search terms that appear in a drop down box when users begin to type into the search field.  It therefore provides users with automated search term suggestions in the form of wording supplied by Google to assist with specifying a particular search query.

And people all over the world are starting to sue Google for content viewable in its autocomplete function.

Google have been held liable in Japan and Germany this year for defamatory autocomplete “dropdown” suggested search terms. 

In the German Federal Court of Justice ruling, the autocomplete suggestions were found to be defamatory of the plaintiff.  The Court ruled that Google will not have to remove the autocomplete function entirely in Germany, but it must address claims and remove defamatory material from autocomplete once the unlawful content is brought to its attention.

In the Japanese decision by the Tokyo District Court, Google was ordered to modify its autocomplete function and pay damages to the plaintiff, whose name when entered in the search field was automatically paired with defamatory key words that incorrectly linked him to criminal activity. 

To date, there have not been any cases in Australia where Google has been held liable for the autocomplete suggested search terms. 

If Google is now being held liable for the publication of defamatory content uploaded by third parties and to which Google links through, and for its autocomplete function, where does its liability end for other potentially defamatory content viewable on the Google search service?  For example, would it not be liable for the content contained in the “searches related to” section at the bottom of any search results page?  Arguably, if Google is liable for the autocomplete suggestions, then Google must also be liable for the suggested related searches and for any defamations contained therein.

The issue then becomes, in light of increasing successful claims against Google, will Google survive the foreseeable influx of claims of defamation for any and all content viewable on its search service?  People are becoming increasingly concerned about protecting their reputations, particularly where defamatory material may affect potential business prospects or employment opportunities - and they are taking to the courts.  But will Google be able to control the uncontrollable enough to protect itself from these potential lawsuits?

In the case of ACCC v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74, the administrator of a social networking site was held accountable for misleading statements posted by third parties on its Facebook and Twitter pages.  This case alerted businesses to the importance of monitoring their social networking sites to ensure they are not publishing anything unlawful.  Therefore, even though the administrator of a social networking site cannot control what is posted by third parties, they will still be liable for its continued publication.

So should not Google then be liable for all material viewable on its search results pages, regardless of whether or not it is “controllable”?  In response to a complaint filed in California relating to defamatory autocomplete suggestions, Google’s response has been that it is not responsible because the search terms are automatically generated search terms.  But how long will Google be able to rely on the “uncontrollable” argument, when cases across the globe suggest that it is liable for defamatory material contained in the autocomplete search terms. 

In a recent decision on the issue of the liability of internet search engines for viewable content (Google Inc v Australian Competition and Consumer Commission [2013] HCA 1), the High Court ruled in favour of Google Inc, stating that it had not engaged in misleading or deceptive conduct under section 52 of the Trade Practices Act 1974 (Cth) in its publication of ‘sponsored links’ viewable on Google’s search results page. 

The Court found that Google did not choose the keywords or endorse what was contained within the advertisements, rather the advertiser was responsible for the misleading content.  It was held that the mere fact that Google responded to a user’s query and the mere passing on of information were insufficient reasons to expose Google to liability for misleading or deceptive conduct. 

Although the issue in this case was in relation to misleading or deceptive conduct rather than defamation, this decision may provide some guidance as to which way a court may go in an autocomplete case in Australia.  Google was found not liable for publishing misleading or deceptive material given it did not endorse or adopt the content in question, it merely displayed it.  Therefore, could Google still be liable for the autocomplete search terms in light of this decision?  Possibly not.

It is not unforeseeable that a complaint about defamatory content contained in the autocomplete suggested search terms could succeed in Australia based on the international case law. 

However, the recent High Court decision discussed above could indeed provide the foundation for a very different result for Google in Australian courts in respect to defamation actions on the basis that Google could argue it is therefore not a publisher.

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