Music promoter Michael Trkulja recently successfully sued Google for $200,000 in relation to images published of him on the search engine’s results page. This case provides guidance on the circumstances in which internet intermediaries such as search engines, social media platforms and blogs can be held liable for a defamatory publication.
Mr Trkulja, who was awarded $225,000 in damages after suing Yahoo! for defamation in March this year, claimed that the results of both Google ‘web’ searches and ‘image’ searches linked him to gangland crime in Melbourne, and to various people either known to have committed serious criminal offences or against whom serious criminal allegations had been made.
On 22 September 2009, the Plaintiff’s lawyers wrote to Google, alerting them to the presence of defamatory content in their search engine results, and requesting that the material be removed. On 10 October 2009 Google declined to remove the content.
The Court found that Mr Trkulja had established an entitlement to damages against Google Inc in respect of the Google ‘image’ search results publicized between 11 October 2009 and 31 December 2009. It was held that these images implied that the plaintiff was so involved with crime in Melbourne that his rivals had hired a hit man to murder him.
The case clearly demonstrates that search engines may be held liable for the publication of defamatory content. But what about other websites, blogs, social media platforms and internet service providers?
Previously, it was thought that it was unlikely that a social networking host or provider, which provides the platform itself (for example, Facebook or Twitter), will be regarded as publishing, or even as authorising the publication, of the defamatory material, given its role as platform host/provider is a passive one (see our blog ‘Who is liable for defamatory graffiti on your brand’s social networking site?’ on this point).
Now it seems that any website which passively publishes the defamatory content of a third-party may be held to be a publisher of that content. Further, a website will be seen as consenting to the publication of defamatory material where, after receiving notice, they fail to remove the material within a reasonable time. In these circumstances, Google’s defence of ‘innocent dissemination’ under section 32(1) of the Defamation Act 2005 (NSW) failed.
Internet intermediaries should also be aware that the ‘publication’ of defamatory material may extend to a wide range of website functions. Google has faced a number of defamation claims around the world as a result of its ‘auto-complete’ functionality, several of which have been upheld.
Although the question of whether a particular website might be a publisher of defamatory material is ‘fact sensitive’, it is clear that websites that become aware of defamatory content on their sites must act to quickly remove the content, or risk being liable for a substantial damages payout.