The internet may allow new voices to be heard, but it also exposes all types of businesses, not just traditional publishers, to the risk of costly defamation proceedings for content accessed through their websites. The NSW Supreme Court has recently examined the limits that may be imposed on defamation actions arising out of online publications. 

The recent decision of her Honour Justice McCallum in Bleyer v Google Inc [2014] NSWSC 897 is a positive development for potential defendants (and their insurers) in defamation proceedings relating to online content. The decision touches on who exactly is a publisher for the purposes of defamation law and, importantly, whether the Court will allow a case to run where the costs seem to be disproportionate to the outcome sought.

Publication on the internet

As is well known, defamation actions result from publication of defamatory material about someone to at least one other person. Before the internet, it was usually clear where and when written material was 'published'. For example, a hard-copy newspaper is published on a certain date in a certain place. And not just anyone could start a publication.

The internet changed everything. In 2002, the Australian High Court (in the decision of Dow Jones v Gutnick [2002] HCA 56) decided that publication over the internet occurs whenever a user downloads the article and in whatever place that user is located. A single view is enough for a publication to occur. So, for instance, a ten year old article hosted on a newspaper's internet server in the United States may be seen as freshly published in Australia when a user in Darwin reads it online.

Who is a publisher?

Recent decisions in the UK and Australia have dealt with allegations that internet service providers, blog hosting sites and even search engines are 'publishers', even though they have no input into the content itself.

In the UK, Justice Eady of the High Court of England and Wales found that Google was not liable for information contained in search engine results (Metropolitan Schools Ltd v Designtechnica Corpn [2011] 1 WLR 1743) or the content of blogs it hosts on Blogger.com (Tamiz v Google Inc [2012] EWHC 449).  By contrast, in Australia, Justice Beach of the Victorian Supreme Court found that Google could in fact be a publisher of the content that comes up in its automated search results. His Honour justified this view on the basis that publishing that information is what a search engine is designed to do (Trkulja v Google (No 5) [2012] VSC 533).

The Bleyer Case

The proceedings in the NSW Supreme Court were brought by Mr Roland Bleyer against Google's US parent. Mr Bleyer alleged that Google published seven defamatory items about him to three people, when these people performed Google searches. The material was made up of both 'snippets' (the excerpts a user sees in a list of search results) and hyperlinks to the whole offending articles.

It was alleged that two of the three readers accessed the material in December 2012. In March 2013, Mr Bleyer's solicitor asked Google to remove the items from its search, which it did not do until May (and even then not everything was removed). In the meantime, another person accessed the information in April.

Google applied to the Court for the proceedings to be stayed or dismissed as an abuse of process. This argument came down to two main points:

• Google was not a publisher of the material for the purposes of defamation law; and
• there was a substantial disproportion between the cost of the proceedings reaching a conclusion and the potential outcome.

The Court's decision

The Court considered whether or not Google was a publisher. Her Honour chose to follow the UK authorities rather than the Victorian decision: given that there was no human input in the search engine apart from setting it up in the first place "at least prior to notification of a complaint...Google Inc cannot be liable as a publisher of the results produced by its search engine". Her Honour did not rule on whether Google had published the material accessed in April, after Google had become aware of Mr Bleyer's complaint.

The case was ultimately decided on whether it was proportionate for the case to continue, i.e. whether it was worth running given the potential costs and outcome.

Google referred to an English Court of Appeal defamation case (Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA CIV 75) where an insignificant level of publication in England meant there was not a "real and substantial tort". In the words of the Court, even if the claimant succeeded, "the game will not merely not have been worth the candle, it will not have been worth the wick".  Although this approach had not been followed in Australian Courts before, her Honour agreed that the Court is able to stay or dismiss proceedings if "the resources required to determine a claim and the interest at stake" were vastly disproportionate. The value of the interest can include considerations beyond just monetary value such as vindication of reputation.

Once the decision about Google's status as a publisher had been made, the whole case in this instance rested on one potential publication to a reader in April. Her Honour noted that the claim would be complex both to make out and defend and any judgment would probably be unenforceable against Google in the US anyway. Given these factors, her Honour found that the resources of the court and parties to determine the claim would be "out of all proportion" to Mr Bleyer's interest. The proceedings were permanently stayed.

In summary

Given this was a decision of a single NSW Supreme Court judge, there are no guarantees that future cases will have similar outcomes.

However, this decision is an encouraging sign that Australian Courts are willing to put the brakes on defamation actions that are extremely costly and time consuming to defend, but arise out of content that hardly anyone actually saw.