Cyber Libel Suit against Google

*Taken from The Guardian
Link : http://www.guardian.co.uk/law/2012/nov/26/google-defamation-libel-australia

Google will have to be quicker to remove defamatory content, at least in Australia, after it lost a $200,000 libel action there. The decision may strengthen Lord McAlpine's hand if the Tory peer, who obtained settlements of £185,000 and £125,000 from the BBC and ITV respectively, decides to target the search engine next.

Google has, until now, been relying on court decisions which absolve it of liability for defamation on the basis that, because it provides search results automatically using algorithms, it is not responsible for online content produced using its search engine. In England the courts have agreed with this analysis so far and in the Tamiz case earlier this year Mr Justice Eady held that Google should not be regarded as a publisher.

However, the tale of Australia's most successful libel litigant may give Google and other search engines pause for thought. Milorad Trkulja, a music promoter, took action against Google over material online, which linked him with criminal figures in Melbourne. Trkulja has never been involved in any criminal activity, but was unfortunate enough to have been shot in a restaurant in 2004.

His lawyers wrote to Google in October 2009 asking for the offending material, which included a number of images, to be removed, but received a reply saying that in line with Google's policies on content removal he should contact the owners of the website concerned instead.

Trkulja sued Google and the jury concluded that the search engine was the publisher of images of Trkjulja and related information which suggested he was involved in crime and that his rivals had hired a hitman to kill him. Google's defence of innocent dissemination succeeded only up until the point that it was put on notice of the defamatory content; the jury awarded Trkulja $200,000 damages. He had already won $225,000 damages against Yahoo, which hosted the site concerned, in March.

After the case the search engine said: "Google's search results are a reflection of the content and information that is available on the web. The sites in Google's search results are controlled by those sites' webmasters, not by Google."

So they are sticking to a defence of their service which failed in the Australian court. The case does not bind a UK court, but it may mark a shift in the way judges look at search engines and platform providers and that may have serious implication for companies like Google and their users.

If the Australian decision is followed by courts elsewhere search engines and platform providers will have to be a lot quicker in dealing with requests to take down material when they are contacted by a potential claimant and they will have to be more responsive to requests to sever links to defamatory content if their "not our responsibility, contact the webmaster" response opens them up to liability.

For those of us who put material online it might mean a more hostile legal landscape. The lesson will be that not only do you have to watch what you say online, search engines will have to do so as well.

We are closed on 16/11/2012

Kindly be informed, that RWY will be closed on 16th November 2012 (Friday) as we will away for our annual Team-Building trip. 

However, for any emergency; please call HW Yip (012-3111580) or Richard Wee (016-2750025).

We will be back in action on 19th November 2012.

We apologise for any inconvenience caused. 

Happy Deepavali 2012

Richard Wee & Yip, wishes our clients celebrating Deepavali, a good Deepavali.

Press Release: Bar Council Surveys Explore Employability of New Law Graduates and Working Conditions of Young Lawyers

The standards of lawyers at the Malaysian Bar, and their welfare, are of paramount importance to the Bar. 

The Bar Council therefore conducted two major surveys recently.  The first survey was aimed at obtaining the feedback of employer-law firms as to the attributes, skills and abilities that they deem important, and look for, when seeking to employ new law graduates, and to what extent such requirements or expectations have been met.  This employability survey was conducted with a sampling of 393 employer-law firms throughout Peninsular Malaysia who had volunteered to participate.

The second survey was conducted by the Bar Council National Young Lawyers Committee (“NYLC”), to gather data on the working conditions of the younger Members of the Bar, particularly those within the first three years of employment.  227 lawyers (predominantly in their first year of practice) and pupils in chambers participated in the survey, which yielded useful statistics on, inter alia, the work relationship between young lawyers and their employers, and the nature of remuneration received by  young lawyers.

On 20 October 2012, the NYLC held a public forum to discuss the results of the two surveys.  Based on the results of the second survey, the NYLC made the following recommendations: 

(a) Young lawyers ought to continue and strive to improve themselves, particularly by attending the Bar Council’s Continuing Professional Development seminars and courses;

(b) As a guide for employers, the proposed allowance for pupils in chambers should be a minimum of RM2,000 and RM1,000 per month, within, and outside, the  Klang Valley, respectively;

(c) As a guide for employers, the proposed remuneration for first-year lawyers should be a minimum of RM4,000 and RM2,500 per month, within, and outside, the Klang Valley, respectively; and

(d) Employers should consider including both cash and in-kind benefits in a young lawyer’s remuneration package.  For example, if a firm is unable to offer the recommended monthly amount of RM4,000 to a first-year lawyer in Kuala Lumpur, that firm could consider offering medical and dental benefits, or a telecommunication allowance, so that the value of the remuneration package would approximate the proposed figure.  This proposal represents a short-term measure in the hope that employers will eventually offer the recommended minimum salary amount in cash.

The NYLC also noted concerns expressed regarding the perceived exploitation by some employers, who offer very low amounts of remuneration.  However, while NYLC is aware that market forces ultimately dictate the level of compensation for young lawyers, NYLC hopes to persuade all employers to offer better remuneration packages, to take into account the high rate of inflation and steep cost of living.

The Bar Council’s employability survey revealed that there is divergence between the expectations and requirements of employers, and the attributes and skill sets of some of the new entrants to the Bar.  Law firms that responded identified these four skill sets and attributes as priorities: proficiency in spoken and written English; communication skills; knowledge of the law; and commitment to the firm.  The survey responses indicated that lawyers with foreign law degrees generally fare better in these areas than those with local qualifications, except where “commitment to firm” is concerned.  Within the former category of graduates, those who need not undertake the Certificate of Legal Practice (“CLP”) generally fare better than those with the CLP qualification.¹

The expectations and requirements of the legal profession are dictated very much by the market, and the demands placed upon lawyers by the public, who are the consumers of legal services.  Employer-law firms were also concerned over the disparate and multiple routes of entry into the legal profession, which has led to differing standards of learning and training amongst the new entrants.  This appears to be a cause for the disparity in the skill sets and attributes detected by the survey.

An overwhelming majority of employer-law firms felt that a single entry system into the legal profession, as is the case in other jurisdictions, is desirable and viable.  To this end, they agreed that a Malaysian Common Bar Course, with a vocational training component, is needed to enhance the employability of new entrants to the Bar.

The NYLC’s forum was a useful platform for a discourse on the requisite training of young lawyers, and their work conditions.  We are therefore disappointed that The Star, in its article “Lawyers not up to par” (published on Sunday, 21 October 2012), misquoted and did not accurately represent what the speakers had said at the forum.  The Star’s generalisation about the quality of all young lawyers who have been in practice for less than seven years was an unfair and skewed portrayal that placed all the Bar’s young lawyers in a poor light.

We have strongly protested to The Star, and placed on record our unequivocal position that the employability survey covered new entrants to the Bar (and not all young lawyers), and that it is not our stand that all our young lawyers are below par.²

As a whole, the two surveys provide valuable insight on the future of the legal profession.  The Malaysian Bar aims to train, and retain, our young talents by making efforts to improve working conditions, and putting in place a comprehensive and uniform system of training, in order to be regarded as a top-notch, 21st-century legal profession.

Christopher Leong

Vice-President

Malaysian Bar

30 October 2012

____________________________________________

¹ The survey reflects the views and experiences of the employer-law firms in seeking to employ new law graduates, and was not a survey to determine the quality of such law graduates per se.

² Click here for the full version of our Letter to the Editor of The Star.