A v Google New Zealand Ltd

• Jurisdiction: New Zealand
• Judge: Abbott
• Judgment Date: 12 September 2012
• Neutral Citation: [2012] NZHC 2352
• Docket Number: CIV: 2011-404-002780
• Court: High Court
• Date: 12 September 2012

Between

A

Plaintiff

and

Google New Zealand Ltd

Defendant

[2012] NZHC 2352

CIV: 2011-404-002780

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Application by plaintiff for summary judgment and application by defendant for strike out/summary judgment — plaintiff alleged Google New Zealand Ltd had defamed him by publishing defamatory statements — plaintiff was medical practitioner — when plaintiff's name was searched using www.google.co.nz (“Google search engine”), search results included reference to defamatory material, and a link to the third party website — plaintiff sought summary judgment against Google NZ on the basis the information was clearly defamatory and that Google NZ was aware of the search results — Google NZ applied for summary judgment claiming that: (1) the plaintiff had named the wrong defendant as parent company, Google Inc, owned and operated the Google search engine; and (2) publication by a search engine provider of results of an inquiry did not amount to publication — whether Google NZ was sufficiently connected to the defamatory material to be a publisher of that material — whether liability should be imposed on search engine providers where results were generated by an automated system.

Counsel:

M F McClelland for plaintiff

T J Walker/ S L Jackson for defendant

M F McClelland, PO Box 10–242, Wellington for plaintiff

JUDGMENT OF ASSOCIATE JUDGE Abbott

1 This proceeding raises, for the first time in New Zealand, the question of responsibility of a search engine service provider for the content of information on third party websites accessed from search results.

2 The plaintiff is a medical practitioner who practices as a psychiatrist. Defamatory statements about him have been posted on a website in the United States hosted by a third party to which the public is directed when his name is searched on the internet, using what is known as a search engine accessed through the internet domain name www.google.co.nz. The search results include reference to the defamatory material, and link to the third party website.

3 The plaintiff says that the defendant has defamed him by publishing, in the search results, information purportedly about him taken from the offending websites and what is known as a hyperlink to the websites with the defamatory material. He seeks summary judgment against the defendant on the basis that the information is clearly defamatory and that the defendant is aware that the information and hyperlinks are being produced in the search results. The defendant appears to have removed reference to them in search results on occasion, but has failed to prevent the information and hyperlinks from being re-published.

4 The defendant opposes the plaintiff's application, and cross applies for summary judgment itself. It says that the plaintiff has the wrong defendant, in that its ultimate parent company, Google Inc (incorporated and resident in the United States of America), owns and operates the search engine. Secondly, it says that publication by a search engine provider of results of an inquiry (in which information is generated automatically from the billions of websites on the internet) does not amount to publication.

5 I apologise to counsel for the delay in delivery of this judgment, which is due to a combination of volume of work and the wish to give the matter particularly careful consideration in light of the significant for both parties.

6 A suppression order is in place in respect of the name of the plaintiff. I have avoided naming the offending websites to avoid the plaintiff being identified through them.

Background

7 The defendant is an indirect subsidiary of Google Inc, a company incorporated in the State of Delaware in the United States of America which has its primary place of business in California. Google Inc owns and operates what is known as the Google search engine, which allows the public to inquire about information on any topic, identifies websites containing information on that topic, retrieves information from that website, and reproduces extracts of that information in its search results.

8 The Google search engine can be accessed through the New Zealand internet domain name www.google.co.nz. The domain name was registered with New Zealand Domain Name Registry Ltd on 17 February 1999, by Google Inc.

9 The defendant was incorporated on 31 March 2006. Its two directors are resident in the United States. It has 100 shares, all owned by Google International LLC, based in California. Google Inc is the ultimate parent company.

10 When the plaintiff's name is typed into the search inquiry box of the Google search engine, accessed through www.google.co.nz, the search results displayed on the searcher's computer screen include information extracted from the website containing the defamatory statements (referred to as “snippets” of information), and a hyperlink which will take the reader directly to the third party website. On occasions, the results have also included a hyperlink to another third party website linked to that first one.

11 The plaintiff has asked the defendant on many occasions to block access to the offending websites. The requests have been relayed to the legal team for Google Inc in the United States. It says that it has blocked access to specific web pages, as and when the plaintiff has referred them to the pages and has correctly and sufficiently identified them. However, it says that the web pages will not have been removed if they were not correctly identified or if they did not contain the offending content. It further says that it cannot block access to the third party web pages generally, or guarantee that information on the web page in question will not continue to appear (or will re-appear) as the information may already be on another web page or the third party may move it to another web page.

The applications and issues arising

12 The plaintiff seeks summary judgment under each of its seven causes of action, contending that the defendant published the defamatory statements about him from February 2010 onwards. The other aspects of the causes of action, namely that the statements are untrue, have affected the plaintiff's reputation and have, or are likely to cause, pecuniary loss, have not been contested on this application. The plaintiff alleges that the defendant has acted in flagrant disregard of his rights by either removing the defamatory material then subsequently republishing it, or failing to remove it.

13 The defendant opposes the plaintiff's application and seeks summary judgment itself (or a strikeout of the plaintiff's claim) on the same grounds. It opposes the plaintiff's application on the grounds that:

• (a) The defendant is the wrong party as:

  • (i) It does not own or control the domain name www.google.co.nz;

  • (ii) It does not operate, control or provide the search services accessible at www.google.co.nz (“Google Search Service”) or any other search engine;

  • (iii) It does not have the ability to operate, control or direct the functioning of the Google Search Service or to control or direct action in respect of blocking of URLs from the Google Search Service results pages;

  • (iv) It does not have access to the technology used to operate, control or provide the Google Search Service; and

  • (v) It therefore has no responsibility for the Google Search Service or the results of the Google Search Service or the words complained of by the plaintiff.

• (b) A provider of a search engine is not responsible under the law of defamation for the words appearing in automated search results returned in response to user queries or searches. 1

• (c) Alternatively, if a provider of a search engine is responsible at law for the words appearing in search results returned in response to user queries, the defendant relies on the defence of innocent dissemination in s 21 of the Defamation Act 1992 and/or the defence of neutral reportage.

14 In its application for summary judgment, the defendant says that none of the plaintiff's claims can succeed, and the statement of claim does not disclose a reasonably arguable cause of action against the defendant as it is not the publisher of the defamatory statements for the same reasons given in its notice of opposition (save for the contention that it does not have access to the technology used to operate, control or provide the Google Search Service which it does not advance in support of its summary judgment application given that the plaintiff disputes that matter).

15 The plaintiff opposes the defendant's application on the grounds that it is responsible for the published words (as a subsidiary of the owner and operator of the search service, Google Inc), and that it has assumed responsibility for the published

words and is estopped by its conduct from denying that responsibility. He also opposes on the grounds that a search engine provider is responsible for words returned as search results where those words are published and there is no defence of innocent dissemination

16 The issues that arise on the applications therefore are, whether the claim has been brought against the correct defendant and, if so, whether the operator of an internet search engine is a publisher of the results of a search for the purposes of the law of defamation. If it is, the issue of whether there is an available defence under s 21 of the Defamation Act 1992 or under the principle of neutral reportage also arises.

Legal principles for summary judgment and strike out

17 The legal principles that the Court applies when determining applications for summary judgment are sufficiently well-established 2 and sufficiently well-known that they do not need repeating here in any detail....