Is Google responsible for everything ever said on the internet?

A new case in the UK is again raising the issue of who is responsible for information available on the internet - and its outcome could reach as far as New Zealand.

London businessman Brian Retkin is bringing a claim against Google for defamation, alleging that Google is responsible for not removing links to defamatory information posted on the internet by anonymous sources. Mr Redkin has reportedly spent years trying to get Google to remove links to the defamatory content about his internet domain name business Dotworlds from its search results. He is now taking legal action that if successful could hold the world's largest search engine liable for publishing inaccurate or defamatory material on the internet.

Regardless of the outcome in this case - touted the first of its kind in the UK - it raises the immediate question as to whether such a claim could be brought in New Zealand now and what the outcome might be.

There are three main issues to consider:

• Is information available over the internet considered "published" for the purposes of a defamation claim in New Zealand?

• Is information that has been published in another country subject to New Zealand defamation laws?

• Is an internet service provider (ISP) or search engine responsible for distributing defamatory information?

Whether information available on the internet has been "published" for the purposes of defamation proceedings has not been questioned in New Zealand, although in the case of O'Brien v Brown, the issue was highlighted. In that case, the defendant Alan Brown made personal remarks about Patrick O'Brien relating to Mr O'Brien's capabilities as the CEO of DOMAINZ.

In the proceedings, Mr Brown admitted that the statements he had posted on the internet had been "published" for the purposes of the Defamation Act 1992. This is consistent with subsequent defamation cases and the general view that internet material has been "published" for the purposes of defamation laws.

Whether information published in another jurisdiction is subject to New Zealand defamation laws has been considered by the courts. In University of Newlands v Nationwide News Pty Ltd. (University of Newlands), the High Court found that an Australian-based publication could be sued in New Zealand for defamatory remarks made on a website because the defamatory information was downloaded in New Zealand.

In reaching its decision, the High Court applied an Australian High Court judgment in the case of Dow Jones and Company Inc. v. Gutnick (Gutnick), in which that court found that the defamation occurred in Australia even though the publication in question was published in the United States. The judge noted "those who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographic restriction".

However, the High Court decision in University of Newlands has subsequently been overruled by the court of Appeal and leave to appeal to the Supreme Court has been declined. The Court of Appeal decision expressly leaves open whether Gutnick has been adopted as law in New Zealand and therefore the question of whether the tort of defamation is available in New Zealand in relation to information published overseas remains unsettled. What is clear is that if there are no damages suffered in New Zealand, a claimant will not successfully bring a defamation case here.

This brings us the our third issue: is an ISP or search engine responsible for the distribution of defamatory information and do they have a responsibility to remove postings or remove links to postings that are claimed to be defamatory?

"Distributors" of defamatory information are in fact covered by the Defamation Act 1992. However, the law provides a defence for innocent distribution of defamatory information. It is a defence if a person proves:

• they did not know that the matter contained the material that is alleged to be defamatory; and

• they did not know that the matter was of a character likely to contain material of a defamatory nature; and

• their lack of knowledge was not due to any negligence on their part.

Presumably, an ISP or search engine is simply an "innocent" distributor if it has not been complicit in the actual publication of the material. A question arises over whether an ISP or search engine could plead innocence under the defence if they had been repeatedly asked to remove defamatory content from the internet. While this point has yet to be settled, the logical answer is that ISPs and search engines cannot be expected to act as defamation police.

Unless there has been a clear ruling requiring the removal of material or links to the material, it would be a significant step backwards in the realm of freedom of speech to require ISPs and search engines to remove all material or links to material that is claimed to be defamatory.

We shall google the Google case with interest in the meantime. Whatever the outcome, it will no doubt have a big impact on how ISPs and search engines are considered in future defamation cases in New Zealand.

This article was written by senior associate Heidi Leslie and was first published in The National Business Review, 20 July 2007

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