In 2002 the Australian High Court Judge Michael Kirby wrote in a judgement:
Apart from anything else, the costs and practicalities of bringing proceedings against a foreign publisher will usually be a sufficient impediment to discourage even the most intrepid of litigants.
The case concerned the publication of an article about a prominent Australian, Joseph Gutnick in the online Wall Street Journal. Published by Dow Jones & Co Inc (Dow Jones) the article suggested improper business dealings and associations with a convicted tax evader and money launderer. Gutnick filed a defamation claim in the Australian state of Victoria where he had a substantial reputation. Although he also had a reputation in other Australian jurisdictions as well as in the USA and Israel, he limited his claim to his home state of Victoria.
Dow Jones took the case to the High Court over the matter of jurisdiction. They argued that the proper jurisdiction for a defamation claim was the place in which the material was uploaded. Conversely, Mr Gutnick argued that his claim should be litigated in the jurisdiction in which the defamation was downloaded or communicated because governed by the principles of freedom of speech and a much higher burden of proof, litigation of the case in any US state was almost certainly doomed to fail.
The High Court rejected the argument offered by Dow Jones. In a joint judgment three of the High Court judges stated:
In defamation, the same considerations that require rejection of locating the tort by reference only to the publisher’s conduct, lead to the conclusion that, ordinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged. It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant’s conduct. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed.
The internet has underpinned the globalisation of knowledge. In 2010 the Australian Media & Communications Authority (ACMA) reported:
At June 2010, approximately 77 per cent of the population 14 years and over were connected to the internet at home and 66 per cent had a broadband connection. Nearly 2.4 million people used the internet via their handheld mobile during June 2010, up from 1.6 million during June 2009.
Access to offshore domains, web hosts and blogs have provided an accessible and convenient platform for disaffected individuals and websites seeking to profit from jurisdictional constraints.
With a global reach of approximately 90%, Google is undoubtedly the dominant player in internet search and technology. In 2011 Google’s stated mission to ‘organise the world’s information’ appears at best over simplistic and at worse deceptive in light of the expansive nature of its product base.
Under the auspice of freedom of speech, Google has been notoriously unco-operative in removing material that defames individuals or has a deleterious effect on businesses. The removal of material from the Google index is a simple task. This will be explored further on the blog pages. Suffice it to say, that Google does remove content from it index. Evidence to the anti – trust hearings show that indexing of content content is not always undertaken in the spirit of ‘freedom of speech’ . Rather, it is to benefit Google’s advertising based business model.
The loss of livelihood by individuals and small businesses affected by damaging material in the Google index has appeared to be simply collateral damage in the lofty quest to organise the world’s information.
As foreshadowed by Judge Kirby, the cost of litigation has thus far severely restricted options for many who are defamed on the internet. Yet, since 2010 reports of individuals and small businesses in Non-US jurisdictions successfully litigating against the Google monolith have emerged. The outcome of some cases is unclear, or yet to be decided, but the majority of decisions have favoured the plaintiffs.
Litigations against Google
- In late 2009 an Australian man filed proceeding against Google and Yahoo for defamation. Update: In March 2012 Mr Trkulja won his case against Yahoo! and was awarded AUD $225.000 plus interest. In November 2012 Mr Trkulja won his case against Google and was awarded damages of AUD$200,000 plus interest. Neither Yahoo or Google appealed the jusgements.
- In January 2010 a French company won its appeal over a defamatory autocomplete (the auto suggestion in Google search).
- In April 2010 a Swedish man sued Google for defamation. The outcome is unclear.
- In September 2010 Google was convicted in France for publishing a defamatory autocomplete.
- In February 2011 I filed proceedings in the District Court of South Australia against Google Inc and Google Australia for failing to remove defamatory links and snippets.
- In April 2011 an Italian man successfully litigated a case over a defamatory autocomplete.
- In May 2011 an Argentine court ordered Google to remove anti Semitic entries in its autocomplete and remove the sites from the index.
- In June 2011 an Irish Hotel commenced proceedings against Google over a defamatory autocomplete term. Update: The case was settled out of court in November 2011.
- In August 2011 Google lost an appeal against orders from Spain’s Data Protection Agency to remove links from its SERPs.
- In October 2011 an Australian man was successful in his application to force Google to reveal the identity of the person(s) who had defamed him.
- In November 2011 Google removed a defamatory entry about an English man – 18 months after the first notification.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.