Whenever I feel like criticising the European intermediary liability system, I look at Australia and any negativity quickly passes away. It has long been commented that while the USA, Europe, and many other countries have limitation of liability regimes in place, Australia seems to have managed to bypass most legislative solutions in favour of case law. The latest case to try to determine the level at which a service provider will be liable for content it does not control is the Supreme Court of South Australia decision in Duffy v Google.
This case is somewhat reminiscent of the right to be forgotten, and it involves Dr Janice Duffy, a former health researcher, and the website US-based website Ripoff Report (RR), a consumer protection site that allows its users to upload information about fraudulent businesses. During a period between 2005-2006, Dr Duffy joined a psychic website called Kasamba, where she communicated and engaged in various interactions with other users, including paying for psychic readings. After becoming disillusioned with some of the psychic services in a process that involved some attempts at romantic relationships, she asked for a refund, which she did not receive. By 2007 she had become disillusioned with the site, and wrote a criticism against Kasamba and uploaded it to the Ripoff Report. Duffy then became engaged in a convoluted drama involving various Kasamba users and psychics, and appears to have been involved in what could be described as a jilted lover affair and increasingly heated communications with various Kasamba members.
The drama culminated in December 2007, when Duffy, using an assumed name, posted a message on RR claiming that Kasamba’s psychics had caused a friend’s suicide. This prompted an almost immediate response, and people linked with Kasamba started uploading six review against Duffy to the Ripoff Report, starting with one in December 2007 entitled: “Dr Janice Duffy Stop the Australian Psychic Stalker Dr Janice M Duffy Adelaide Australia”.
Other similar messages followed in 2008. In 2009 Dr Duffy conducted several searches on Google using her name, and noticed that they produced a number of links to the RR pages. She sent a letter to Google Australia demanding the removal of the links. A series of communications between her and the removals teams in Australia and the USA ensued, but the links remained. Finally, the links were removed in 2011, but only from Google Australia. Dr Duffy conducted another search, that included the auto-complete “janice duffy psychic stalker”. She then sued Google for publication of defamatory statements.
Because Australia lacks similar provisions to those contained in the E-Commerce Directive, and even s5 of the Defamation Act 2013, the Supreme Court of South Australia had to answer one simple question: is Google liable for defamatory statements published by someone else? The court dealt at length with the common law on the online publication of defamatory statements, using cases such as Godfrey v Demon Internet and Bunt v Tilley. The Right Honourable Justice Blue (Blue J) considered the fact that searches to the name produced snippets of the defamatory statement, and that the auto-complete function gave also a defamatory statement, which meant that Google was a secondary publisher. Blue J comments:
“The text says that Dr Duffy is a stalker of psychics of whom psychics should beware and offers by clicking on the title on the Google webpage to deliver to the user the Ripoff Report webpage that provides more detail. The user does not need to enter the URL into the user’s web browser; the Google website is programmed automatically to cause the browser to display the Ripoff Report webpage by clicking on the hyperlink. In these circumstances, Google is a secondary publisher of the Ripoff Report webpage if and to the extent that Google failed to remove the paragraph incorporating the hyperlink after a reasonable time elapsed after effective notification by Dr Duffy.”
The judge therefore seemed thoroughly convinced that Google had published defamatory content, and while Google’s lawyers tried several defences in defamation (innocent dissemination, qualified privilege and contextual truth), the judge was not swayed. The lengthy decision then goes through a thorough consideration of whether the statements in the Ripoff Report were defamatory. Given the fact that the report contains some strong comments against Duffy, Blue J made a long list of statements in the RR that were indeed defamatory. After that, the inevitable conclusion was that Google had been a second publisher of the defamatory statements by showing some of them in the searches and the auto-complete function.
The trial is not over, there will be a further consideration of damages and the timing of the complaint. So stay tuned.
From a legal perspective, I find that the decision is the correct one when we look strictly at Australian law, although I would have looked again at the possible defence of truth (see below). Having said that, it seems to me that holding Google liable for defamatory search results sets a very dangerous precedent. Had this case taken place elsewhere, the result would have been very different, or maybe it would even be the subject of an RTBF complaint.
However, there is something that seriously bothers me about this decision. I have to say that I started reading the facts expecting to find a straightforward defamation case, but the more I read, the more I was surprised that the court was so sympathetic towards Duffy’s involvement in the events that led to the publication of the six RR defamatory posts. It seems clear to me reading the facts that Dr Duffy was a willing participant in an old-fashioned Internet flame war with various people at Kasamba, and that she was the first one to use the Ripoff Report to publish potentially defamatory statements. In fact, her first attack on Kasamba posted on 2007 is still online. I was shocked that the judge seems to have largely ignored the fact that Janice Duffy was involved in a lengthy Internet battle with Kasamba using the RR forums. The most telling thread for me originates in another 2007 post in which a person using the identity “Friend’s husband” accused a Kasamba psychic of causing a friend’s suicide in New York. According to the facts of the case, this message was posted by Janice Duffy. This is a highly inflammatory and considerably defamatory post, and the following thread quickly descends into even more bickering between Kasamba members and several RR users, which are clearly Duffy using sock puppets. It is very telling that the defamatory messages subject of the litigation begin right after Duffy posted this thread. It was acrimonious and inflammatory, to say the least.
Blue J admits that “Dr Duffy was not an exemplary witness. She was at times argumentative or evasive and was often highly emotional.” However, this is irrelevant to the conclusion that RR published defamatory statements against Duffy. While being involved in an Internet flame is not a defence in Tort, perhaps it should be. Let’s call it the “first stone” defence: if you initiated the situation that led to someone else posting potentially defamatory statements because you had defamed them first in the same forum, then you should not have a claim in defamation. At least to me, it feels unethical to reward a person that was involved in this manner.
The ironic twist of the case is that it seems to be a textbook example of the Streisand Effect. By making the complaint and suing Google, Duffy brought the defamatory posts to the attention of a much wider audience than could possibly have been interested in them in the first place. Before the case, I had never heard of the Ripoff Report, Dr Duffy, or Kasamba. Moreover, if it had not been for the case, I would not have read the other threads in the Ripoff Report. It would be fair to say that Janice Duffy does not come out well when one reads her own words in those posts.
I started reading the decision with a neutral view of Dr Duffy, and this view has now been considerably lowered after reading the facts of the case and the threads she posted. The definition of defamation is a statement that “tends to lower the estimation of the plaintiff by the community”. The irony is that the decision has done just that with regards to Janice Duffy.
If you are reading this after this date, chances are you have landed here directed by a blog post or a page posted by the claimant. I have nothing to say to any of those pages, I think they speak for themselves as online harassment.