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.