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 |
[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.
Held: It was apparent from Google NZ's evidence that Google Inc owned and operated the Google search engine, and the NZ domain name google.co.nz. The removal of references to offending web pages following the forwarding of correspondence by Google NZ to Google Inc did not clearly point to Google NZ having a legal ability to remove URLs from searches through the NZ domain name ( Duffy v Google Inc).
To be liable for defamation, Google NZ had to have some relevant legal control over the Google search results. The group product manager for Google Inc and the enterprise manager of Google NZ had both given evidence that all legal control of the search engine was held and exercised by Google Inc and Google NZ did not have the ability, nor was it authorised, to operate or control the search engine. This was consistent with contemporaneous communication from Google NZ to A, stating that Google Inc owned, operated and controlled the Google search engine and Google search results.
Merely forwarding a request for removal to another related entity could not be sufficient to meet the test in Sadiq which set out that the connection needed to be liable as a publisher was that the defendant could have prevented the continued publication of material. As Google NZ did not have the requisite control over or responsibility for Google search results, A did not have a reasonably arguable case and it was appropriate to grant summary judgment against A.
If this were wrong and Google NZ was in fact the publisher, then summary judgment would not have been appropriate because whether or not search engines were “publishers” was a novel issue in NZ. The resolution of such a matter would require determination of complex issues of law in a proper factual context and concerned a developing area of law. This would have rendered summary proceedings inappropriate.
On a strike out application based on Google NZ not being a publisher, it was reasonably arguable that a search engine was a publisher in respect of specific URLs and words and that, given the lack of clarity surrounding the subject of A's complaint, it was inappropriate to strike out that claim. While the right to freedom of expression as protected by the New Zealand Bill of Rights Act 1990 ought to be considered in the development of the law in this area, it might not be an unreasonable limit to hold that a search engine was a publisher of both specific URLs and words that appeared in snippets (which search engine providers had chosen to include and which elevated hyperlinks beyond the status of mere footnotes).
This could mean that search engine providers would be responsible where an offending hyperlink was deactivated but its snippet continued to appear. Such an approach was consistent with the broad common law definition of “publication” as being the communication of a statement to just one other person. To limit this definition to exclude the repetition of information where that repetition occurred without human input could unnecessarily confuse this area of the law.
It might therefore be more appropriate to hold that a search engine was a publisher but with access to the defence of innocent dissemination. The possibility of a defence in innocent dissemination where the defendant had not had notice of the defamatory material might be sufficient recognition of the fact that a search engine was a neutral index. However, these decisions would need to be made with all available facts before the Court and with the benefit of legal argument more specifically focussed on the points than was possible on this application.
Plaintiff's summary judgment application dismissed.
Summary judgment awarded to Google NZ against A.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 plaintiff seeks summary judgment under each of its seven causes of action, contending that the defendant published the...
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A v Google New Zealand Ltd
...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......