Bleyer v Google Inc

Basis on which the application should be determined 16In the case of an alleged defamation on the Internet, it is not enough for a plaintiff to establish that the matter complained of was posted on a website. Publication, which is an element of the cause of action, must be established by proving that the matter in question was downloaded via the Internet so as to be able to be comprehended by a reader: Dow Jones v Gutnick [2002] HCA 56; (2002) 210 CLR 575 at [44] per Gleeson CJ, McHugh, Gummow and Hayne JJ. 17The only publication alleged in the present case is to the three persons identified above. Google Inc accordingly submits that any vindication of reputation achieved by the prosecution of the action will be minimal and that any damages awarded are likely to be "contemptuous, nominal or so small as to make the prosecution of this claim completely disproportionate to the amount at stake". 18Much of the argument centred on the applicability in this jurisdiction of the decision of the English Court of Appeal in Jameel, in which the Court stayed a defamation claim as an abuse of process on that basis. However, while attributing the "proportionality principle" to Lord Phillips' judgment in that case, Google Inc does not suggest that the origin of the principle is to be found there. Rather, it was submitted that the decision reflects the application of a longer-standing principle reinforced rather than constrained by the rules of court. 19It may be accepted that there does not appear to be any direct authority in this jurisdiction for the proposition that a defamation action in which the legal costs and court resources required to determine the claim will be "out of all proportion" to the vindication sought is liable to be stayed or dismissed as an abuse of process. However, there are authorities which provide relevant guidance. Before turning to consider those authorities, it is necessary to determine a threshold question. 20Mr Smark SC, who appears with Mr Potter for Mr Bleyer, submitted that it is not necessary to determine whether any such proportionality principle is part of the law of New South Wales at this very early stage of the proceedings. He submitted that the proper approach in the circumstances is to regard the curial process, including the opportunities afforded by interlocutory procedures, as an aspect of the mechanisms of justice. Mr Smark relied in that context upon the possibility that the plaintiff may uncover wider circulation than has presently been able to be pleaded after discovery and interrogatories. 21Mr Smark submitted that the purpose of particulars is to identify the scope of the facts properly relevant to the issues raised in the proceedings, preventing surprise by giving the opposing party enough information to know the nature of the relevant evidence, citing Goldsmith v Sandilands [2002] HCA 31 per Gleeson CJ at [2]. He submitted that the particulars do not indicate the outer limits of what may be proved. 22It is instructive in that context to go to the judgment in Goldsmith v Sandilands, in which the Chief Justice opened with the following admonition: It sometimes happens, in the course of litigation, that counsel will start a hare. The response of the opposing counsel may be to pursue it. One of the duties of a trial judge is to control the proceedings, to exclude irrelevancy, and to maintain proper limits upon the extent to which the parties and their lawyers will be permitted to raise and investigate matters that are of only marginal significance. 23Those remarks, while not directly concerned with the issue raised by the present application, reflect an assumption that proportionality is an important aspect of justice. 24Mr McClintock SC, who appears with Mr Lewis for Google Inc, submitted that the proper approach is to deal with the pleadings as they stand. He relied upon the decision of the Court of Appeal in Younan v Nationwide News Pty Ltd [2013] NSWCA 335 in that context. In that case, proceedings in the defamation list had been dismissed by Nicholas J on the grounds that the article was incapable of identifying the plaintiffs. That was taken to have been the decision of a separate question as allowed under r 28.2 of the Uniform Civil Procedure Rules 2005. 25The basis for Nicholas J's conclusion was that, on the strength of the particulars of identification in the existing pleading, "ordinary sensible readers" could not reasonably have come to the conclusion that the matter complained of referred to the plaintiffs. In an appeal against that decision, the plaintiffs submitted that their particulars would not have confined the evidence they could have led at trial. The Court of Appeal rejected that submission: at [22] per Macfarlan JA; Bathurst CJ and Beazley P agreeing at [1] and [2] respectively. 26However, notwithstanding the fact that the proceedings had on that analysis been correctly dismissed following the determination of a separate question, the Court granted leave to the plaintiffs to supplement the particulars of identification. In the result, the Court held that, although the primary judge's decision was correct upon the basis of the particulars before his Honour, the result was that leave to appeal should be granted and the appeal allowed: at [36]. 27The decision in Younan is accordingly of mixed assistance to Google Inc. On the one hand, as submitted by Mr McClintock, it stands as authority for the proposition that matters raised for the Court's determination at first instance should be dealt with on the pleadings as they stand, or else an amendment sought: at [22]. Conversely, however, the indulgence granted by the Court of Appeal in allowing the plaintiffs an opportunity to amend notwithstanding the fact that the proceedings had been dismissed upon the adverse determination of a separate question suggests that, before dismissing a claim, the Court at first instance should not overlook any real prospect of amendment. That was the determination of a separate question; any such consideration would apply a fortiori in the case of an application for summary dismissal. 28There is, however, an important difference between the circumstances in Younan and the present case. The application to amend made in Younan reflected counsel's existing instructions. The particulars were expressed in the present tense but senior counsel informed the Court that that was not their intended meaning: at [26] to [28]. Accordingly, it was not a case in which, as here, the plaintiff was merely speculating as to the availability of a better case which might be ascertained through the use of interlocutory processes. 29In the present case, according to the existing pleading, the "best particulars of publication" the plaintiff can presently provide is that the seven matters complained of were published to two people who live in the state of Victoria (supplemented in correspondence by a third, a resident of this State). In my view, where the prospect of further and better particulars being provided after discovery and interrogatories is necessarily speculative, the appropriate course is to determine the defendant's application on the pleadings and particulars as they stand. The processes of the Court should not be beholden to speculation. In defamation proceedings in particular, the scope of publication is an important issue. The Court should not encourage a practice of commencing proceedings for defamation on the strength of a small number of downloads of material from the Internet in the speculative hope of proving wider circulation after discovery and interrogatories. 30That is not to say that the number of actual downloads identified in any individual case will always be determinative as to the likely scope of publication. It is always open to a plaintiff to identify additional facts, matters and circumstances on the strength which a wider scope of publication may be inferred, such as the popularity of the relevant website, the public profile of the plaintiff and any other factor pointing to the likelihood of the defamatory web page being downloaded by a broader range of people. No such particulars are given here. 31One of the difficulties with a defamation claim based on the publication of search results using Google or other search engines is that the relevant audience is necessarily confined to the class of persons who have undertaken a Google search using terms that identify the relevant defamatory web page according to the search engine's algorithms. There is no basis in the pleading or in the evidence on the present application (beyond speculation) for apprehending any likelihood that there are more than three people in that class in the present case.

Proportionality 32The claim in Jameel was brought in England against the publisher of an American newspaper in respect of an article posted on a website in the United States of America which was available to subscribers in England. The headnote to the judgment describes Mr Jameel as a "foreign claimant", presumably meaning that he was not a resident of England. Dow Jones averred that only five subscribers within England had access to the Internet article. Two did not know Mr Jameel while the other three were referred to as "members of the plaintiff's camp". Without having had the opportunity to test it, Mr Jameel's counsel was not prepared to accept the assertion that only five subscribers had access to the article but he conceded that publication was "likely to be slight": at [18]. 33Dow Jones had been served with the originating process outside the jurisdiction and could have applied to have service set aside. In that event, a critical consideration would have been whether "a real and substantial tort has been committed within the jurisdiction". The Court held that the same test could be applied to determine whether the proceedings were liable to be dismissed as an abuse of process. 34In reaching that conclusion, the Court expressly adopted the approach that Mr Jameel could not pray in aid the effect that the proceedings in England may have in vindicating him in relation to wider publication in other parts of the world: at [66]. I would respectfully adopt that approach. 35In its review of other authorities, the Court quoted extensively from the dissenting judgment of Lord Hoffman in Berezovsky v Michaels [2000] 1 WLR 1004, as to which the Court considered there was no relevant conflict in the view of the majority on the issue under consideration in Jameel. Mr Berezovsky was a Russian who sued in England in respect of an article in the American magazine "Forbes". By far the greater circulation of the issue in question (98.9 per cent) had been outside England. The circulation in England was about 2,000 copies. Lord Hoffman regarded Mr Berezovsky as a forum shopper "in the most literal sense". He had chosen not to sue in Russia because success in that jurisdiction would not be adequate to vindicate his reputation, since it might be attributed to his corrupt influence over the Russian judiciary. Lord Hoffman said: The notion that Mr Berezovsky, a man of enormous wealth, wants to sue in England in order to secure the most precise determination of the damages appropriate to compensate him for being lowered in the esteem of persons in this country who have heard of him is something which would be taken seriously only by a lawyer. 36His Lordship noted that an English award of damages would probably not even be enforceable against the defendants in the United States, a consideration also relied upon by Google in the present application. 37The decision in Jameel was cited with apparent approval (using the abbreviated Latin prefix "cf", meaning "compare") by Brereton J in the Equity Division of this Court in support of the conclusion that proceedings for an account of partnership assets should be stayed. His Honour was satisfied that "the protraction of the proceedings would involve costs disproportionate to what is in issue, and would be a grossly inefficient use of Court and judicial resources, in circumstances where the prima facie state of the accounts, and the respective financial positions of the parties, indicates little utility in the exercise". 38Brereton J concluded that the complexity and cost of the proceedings (to the Court as well as the parties) and the plaintiff's repeated failure to pursue them in a manner which could facilitate their resolution combined to make the action one which ought not be permitted to proceed any further. It was in support of that conclusion that his Honour invited comparison with the decision in Jameel: see Grizonic v Suttor [2008] NSWSC 914 at [63] to [64]. 39The facts of that case were very different from the present. Obviously different considerations were brought to bear, particularly including the plaintiff's own defaults, but the decision nonetheless stands as authoritative endorsement of the proposition that considerations of proportionality (between the value or utility of the remedy sought and the resources required to prosecute its determination) may in some instances warrant the conclusion that an available remedy should not be allowed to be pursued. 40An attempt was made to rely upon the decision in Jameel in proceedings in the Court of Appeal in Bristow v Adams [2012] NSWCA 166. In that case, a defamation action commenced in the District Court was dismissed at the conclusion of a final hearing on the basis that, although the plaintiff had been defamed and no defence established, he had failed to prove that he had suffered damage. In dismissing the claim, the trial judge accepted the defendant's erroneous submission that the presumption of damage to a plaintiff's reputation has been abolished by the decision of the High Court in Dow Jones v Gutnick. 41At the hearing of the appeal, the defendant sought to rely upon a notice of contention asserting that the decision below should be upheld on the alternative basis that the claim should have been dismissed as an abuse of process for the reasons stated in Jameel. The notice of contention required an extension of time which the Court refused, for the reasons identified by Basten JA at [38] to [41]. In particular, his Honour did not consider that leave should be given to agitate a novel point for the first time on appeal. His Honour said (at [41]): ...had a stay been sought prior to trial, there would have needed to be careful attention to the differences between English and Australian law. For example, although it may be that the powers conferred on a New South Wales court pursuant to ss 56-58 of the Civil Procedure Act 2005 (NSW) may be no less than the powers conferred on English courts pursuant to the Civil Procedure Rules 1998, r 1.1, the language of the provisions differs. Further, account might need to be taken of the separate defence provided by s 33, described as a defence of "triviality", and its relationship to the power to stay for abuse of process based on a disproportion between the likely costs of the trial and the possible outcome. In addition, reference was made in Jameel to the consequences of the Human Rights Act in the UK and the relevant protections contained in the European Convention on Human Rights. At least in part, the Convention militated against a stay, which would have impinged on the right to a fair and public hearing in relation to an alleged infringement of rights: Convention, Article 6. These issues were not addressed in the submissions on the appeal. 42Each of the considerations noted by Basten JA in those remarks is considered in the course of the discussion that follows. 43As noted on behalf of Mr Bleyer, this Court has expressly declined to follow Jameel in two separate defamation cases. It was submitted by Mr Bleyer that the central reason for its "rejection" in each case was the fact that the Court in Jameel was bound by the Human Rights Act 1998 (UK) to consider the need to protect the right to freedom of expression recognised in Article 10 of the European Convention on Human Rights. With unfeigned respect to its author, I do not think that submission does justice to the complexity of the issues in each case. It may be noted that the reasoning in Jameel in fact focused primarily on proportionality, referring to the considerations raised by the Human Rights Act rather as a check or test of the correctness of the conclusion it would otherwise reach. As noted by Basten JA in Bristow, the Convention presented competing considerations. While the prosecution of a trivial defamation action was said to impinge upon the right to freedom of expression, the right to a fair and public hearing in relation to an alleged infringement of rights (Article 6) militated against a stay. 44The first alleged rejection of Jameel in this Court was the decision of Kirby J in Manefield v Child Care NSW [2010] NSWSC 1420 at [185] to [187]. That was also a judgment in which a defamation action was being determined after a final hearing and its relevance to the present application is accordingly doubtful. His Honour awarded damages to the plaintiff in the sum of $150,000, suggesting that the claim would not have been a candidate for the application of any proportionality principle in any event. 45The decision in Jameel appears to have been cited by counsel for the defendant as authority for the Delphic statement that the presumption of damage is "not absolute and has its limits". It may be accepted, as submitted for Mr Bleyer, that the central reason identified by Kirby J for concluding that Jameel had no relevance to the matter before his Honour was the fact that the English Court had to have regard to the Human Rights Act, of which there is no equivalent in Australia. Upon analysis, however, that was only one of a number of powerful reasons why Jameel was not applicable in those proceedings. 46The second defamation case in which this Court has declined to follow Jameel is the decision of Garling J in Barach v University of New South Wales [2011] NSWSC 431. The defendant's reliance upon Jameel came closer to the mark in that case. The seventh defendant to the proceedings, Mr Karaka, was a citizen of the United States of America on whom the originating process had been served outside the jurisdiction. He sought to have service outside the jurisdiction set aside and, alternatively, an order permanently staying the proceedings as against him on the basis of the principles stated in Jameel. 47Garling J did not consider Jameel to be an authority appropriate to be followed by this Court: at [128]. However, it cannot be said that the central reason identified for its rejection was the fact that the Court in Jameel was bound by the Human Rights Act. That was one of the reasons, but Garling J also concluded that the facts were not comparable, since the claims against Mr Karaka were part of a proceeding including a much larger number of defamatory publications to a broader group of people. Garling J noted that the damages claimed by Mr Barach were said to be substantial whereas in Jameel it had been acknowledged (so his Honour understood) that the damages would be minimal. 48The decisions in Grizonic, Bristow, Manefield and Barach each provide a useful basis for analysis of the relevant principles but none is determinative as to the question raised by the present application, namely, whether this Court has power to stay or dismiss a defamation action as an abuse of process on the grounds that the legal costs and court resources that will be required to determine the claim are out of all proportion to the vindication of reputation sought. 49The obvious starting point in determining that issue is to consider the relevant provisions of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005. The defendant's notice of motion seeks an order that the proceedings be permanently stayed pursuant to s 67 of the Civil Procedure Act, which confers a general power, subject to rules of court, to stay any proceedings before the court. 50Alternatively, Google seeks an order that the proceedings be summarily dismissed pursuant to r 13.4 or r 14.28 of the Rules. Rule 13.4 confers power on the court to dismiss proceedings that are an abuse of the process of the court. Rule 14.28 refers to the circumstances in which the court may strike out pleadings. I do not consider that to be the appropriate power for consideration in the present case. 51Can it seriously be doubted that the power conferred by s 67 can properly be exercised to stay proceedings in which the resources required of the court and the parties to determine the claim are vastly disproportionate to the interest at stake? That appears to be the position taken on behalf of Mr Bleyer. It was noted on his behalf that the principle of proportionality is expressly part of the overriding objective of the English Civil Procedure Rules, stated in clause 1.1 as follows: (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly. (2) Dealing with a case justly includes, so far as is practicable: (a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the case in ways which are proportionate: (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; and (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases. 52Mr Smark noted that no principle in equivalent terms is expressly stated to be an aspect of the overriding purpose of the New South Wales Civil Procedure Act. Section 56 of the Act provides: (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3): (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. (6) For the purposes of this section, a person has a "relevant interest" in civil proceedings if the person: (a) provides financial assistance or other assistance to any party to the proceedings, and (b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings. 53The only express reference to proportionality is in s 60 of the Act, which provides: 60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. 54Google Inc cited a number of decisions in which it has been said that, notwithstanding differences in language between the provisions in the two jurisdictions, the provisions of sections 56 to 58 of the Civil Procedure Act and r 1.1 of the English Civil Procedure Rules are substantially the same: Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 262; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231; Owners Corporation - Strata Plan 61732 v TR Druce Pty Ltd [2009] NSWSC 1024; Ritchie's Uniform Civil Procedure NSW at [60.15]. 55However, Mr Smark noted that none of those authorities states that the express principle of proportionality in the English Rules is also contained (by implication) within s 56 of the New South Wales Civil Procedure Act. 56It is not, of course, a question of concluding that, noting the provisions of the English rules, the New South Wales Parliament decided expressly to exclude such a principle. As submitted by Mr McClintock, as instructive as it is to consider the law of England, it is not necessary to resort to that body of law in order to determine what is an abuse of the process of this Court. Sections 56 and 60 of the Civil Procedure Act are not to be read disjunctively. Further, there is ample authority in this jurisdiction for the proposition (for which no authority is needed in any event) that the just allocation of the finite resources of the court is a relevant consideration in the exercise of the court's authority, at least in civil matters. 57Once it is recognised that proportionality between the resources required to determine a claim and the interest at stake is relevant to the exercise of the court's procedural powers, it is a small and logical step to conclude that there will be cases in which the disproportion is so vast as to warrant the stay or dismissal of the proceedings. The converse proposition, that the court must always determine every claim on the merits, is expressly rejected by r 13.4 of the UCPR. 58In Bristow, Basten JA said that account might need to be taken of the separate defence provided by s 33 of the Defamation Act 2005, described as the defence of "triviality", and its relationship to the power to stay for abuse of process based on a disproportion between the likely costs of the trial and the possible outcome. Google Inc noted that the defence is unlikely to apply to Internet or media organizations: see Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800D. I do not think the potential weakness of the defence deals with the point to which Basten JA was referring in Bristow. As I understand his Honour's remarks, they are directed to the issue whether a power to stay an action on grounds amounting in effect to a complaint of triviality can comfortably sit alongside the defence of that name. 59I do not think the existence of the statutory defence undermines or is inconsistent with the existence of a power to stay proceedings on that basis. The source of the power to stay proceedings as an abuse of process is the institutional authority of the court. Defences protect defendants. The existence of a defence to the action is of little avail to the court in protecting the integrity of its own processes (assuming, as I think I should, that includes the fair and just allocation of finite resources). 60Mr Smark submitted that rejection of the Jameel principle does not mean that the court lacks power to deal with abuses of process. He referred in particular to the power to transfer the proceedings to a lower court or to refer the parties to mediation and to the special costs provisions in the Defamation Act. In my view, the question of abuse of process on the basis of disproportionality may be regarded as being anterior to the exercise of any of those powers. Whether it would be a proper exercise of power to address an abuse of process by transferring it to another court or compelling the parties to mediate may be doubted. 61I accept, as suggested by Mr Smark, that the court should be slow to shut its doors on a plaintiff who has regularly invoked its jurisdiction, but in a sense that begs the question. Google's contention is that the principle of proportionality is a norm of justice which informs the question whether the court's jurisdiction has been regularly invoked. 62I am satisfied that the court has power, in an appropriate case, to stay or dismiss an action on the grounds that the resources of the court and the parties that will have to be expended to determine the claim are out of all proportion to the interest at stake. In my view, such disproportionality can properly be regarded as a species of abuse of process. 63It should go without saying that the cases in which a stay would be granted on the basis of disproportionality will be rare. The primary function of the court is to determine causes properly brought before it according to law and the merits of the case. Further, the value of the interest at stake will, at least in some instances, have to be assessed having regard to broader considerations than the sum of money involved. That is an important consideration in the context of defamation, where vindication of reputation is not wholly measured or achieved in financial terms, even though the remedy must be given in the form of monetary compensation. Undoubtedly, like considerations will arise in other kinds of cases. 64Before determining whether a stay should be granted in the present case, it is appropriate to consider the other issues raised by the application.

Whether Google is a publisher of its search engine results 65The mechanism of the search engine is explained at the outset of this judgment. Google Inc submitted that two English decisions have determined that, in the circumstances established by the evidence in this case, Google Inc could not be regarded as a publisher for the purposes of defamation law because there is no human input into the search process. None of the officers or employees of Google Inc takes part in the search, which is performed automatically in accordance with computer programs or "web-crawling robots". 66The two decisions relied upon are Metropolitan International Schools Ltd v Designtechnica Corporation [2009] EWHC 1765 and Tamiz v Google Inc [2012] EWHC 449. Each is a decision of Eady J, who presided over the equivalent of the defamation list in the Queen's Bench Division of the England and Wales High Court. 67It is convenient first to consider the earlier decision of Eady J in Bunt v Tilley [2007] 1 WLR 1243. In that case, the plaintiff sued three individuals for defamatory material hosted on websites and also sued the internet service provider (ISP) for each individual. The ISP defendants applied to have the proceedings struck out or dismissed summarily. Eady J said (at [23]): Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process. (See also in this context Emmens v Pottle (1885) 16 QBD 354,357, Lord Esher MR.) 68Eady J held on the evidence that there was no realistic prospect of the plaintiff being able to establish that any of the ISP defendants had knowingly participated in the relevant publications. His Honour continued (at [36]); More generally, I am also prepared to hold as a matter of law that an ISP which performs no more than a passive role in facilitating postings on the internet cannot be deemed to be a publisher at common law. I would not accept the Claimant's proposition that this issue "can only be settled by a trial", since it is a question of law which can be determined without resolving contested issues of fact. I would not, in the absence of any binding authority, attribute liability at common law to a telephone company or other passive medium of communication, such as an ISP. It is not analogous to someone in the position of a distributor, who might at common law need to prove the absence of negligence: see Gatley on Libel and Slander (10th edn) at para. 6-18. There a defence is needed because the person is regarded as having "published". By contrast, persons who truly fulfil no more than the role of a passive medium for communication cannot be characterised as publishers: thus they do not need a defence. 69The proceedings as against the ISP defendants were summarily dismissed on that basis. Having reached that conclusion, his Honour did not consider it necessary to determine an alternative argument that the litigation constituted an abuse of process in accordance with the principles stated in Jameel. However, his Honour noted that the argument on that basis was consistent with the public policy considerations highlighted in that case, saying (at [78]): It is fair to say that there is here "no realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources". 70In Metropolitan Schools, Eady J accepted that the same conclusion as was reached in respect of the ISP defendants in Bunt v Tilley should be reached in respect of Google Inc as search engine operator. Google Inc was sued as the third defendant in that case. As it is a US corporation, leave was required to serve the originating process outside the jurisdiction. A Master of the court having granted leave, an application was brought before Eady J to have the Master's order set aside. His Honour granted the application. 71The evidence before Eady J established, as is the case here, that a search carried out using the Google search engine involves no human input from Google Inc. His Honour concluded that Google Inc could not be characterised as a publisher at common law, since it does not authorise the appearance of the snippet on the user's screen "in any meaningful sense" but "has merely, by the provision of its search service, played the role of a facilitator" (at [51]). A separate issue arose as to whether the position was any different once Google Inc was informed of the defamatory content of a snippet. It will be necessary to return to that issue in the context of the evidence in this case. 72In Tamiz v Google Inc, Eady J reached the same conclusion in respect of blogs hosted by Google Inc. His Honour held that some of the comments on the blog were arguably defamatory but that Google Inc was not liable as a publisher of those words, either before or after receiving notice of the plaintiff's complaint. His Honour was also satisfied that the publisher would have a statutory defence (in effect amounting to innocent dissemination) and held on that basis that the claim was so trivial as to be liable to be stayed in accordance with the principles in Jameel. 73The Victorian Supreme Court considered those decisions in Trkulja v Google Inc (No 5) [2012] VSC 533. The occasion for their consideration arose after a trial with a jury. In accordance with the law that applied in that trial, it was for the jury to determine whether the defendant had published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant had been established. The jury's verdict, given in the form of answers to questions, included a finding that the matter complained of was published by Google Inc. The plaintiff did not enjoy complete success in the proceedings but the balance of the jury's answers entitled him to an award of damages. Google Inc subsequently applied for judgment in its favour notwithstanding the jury's verdict, relying on the English authorities discussed above. 74In order for the application to be successful, Google Inc had to establish that was no evidence upon which a reasonable jury, properly directed, could return a verdict for the plaintiff. Beach J held that the verdict was open on the evidence. His Honour said (at [18]): The jury were entitled to conclude that Google Inc intended to publish the material that its automated systems produced, because that was what they were designed to do upon a search request being typed into one of Google Inc's search products. In that sense, Google Inc is like the newsagent that sells a newspaper containing a defamatory article. While there might be no specific intention to publish defamatory material, there is a relevant intention by the newsagent to publish the newspaper for the purposes of the law of defamation. 75Importantly, however, his Honour further held that, to the extent that the decisions in Bunt v Tilley, Metropolitan Schools and Tamiz might be thought to compel a different conclusion, they did not represent the common law of Australia: at [29]. In support of that proposition, his Honour cited the decision of Hunt J in Urbanchich v Drummoyne Municipal Council (Supreme Court of New South Wales, Hunt J, 22 December 1988, unreported). 76To the extent that the claim in Trkulja alleged that Google Inc was liable for publication before being put on notice of the plaintiff's claim, I would respectfully not share his Honour's view that the decision in Urbanchich was authoritative in that context. Urbanchich was a case which turned on the issue of notice. The proceeding before Hunt J was the separate trial of the issue whether the plaintiff could establish publication as against the second defendant, the Urban Transit Authority. The defendant council was sued in respect of posters placed on bus shelters under its control. The basis on which it was asserted that the Authority was liable as a publisher was its failure to remove the posters after receiving notice of the plaintiff's complaint. The proposition for which the decision stands as authority, in my view, is that set out in the following passage of the judgment of Hunt J: In a case where the plaintiff seeks to make the defendant responsible for the publication of someone else's defamatory statement which is physically attached to the defendant's property, he must establish more than mere knowledge on the part of the defendant of the existence of that statement and the opportunity to remove it. According to the authorities, the plaintiff must establish that the defendant consented to, or approved of, or adopted, or promoted, or in some way ratified, the continued presence of that statement on his property so that persons other than the plaintiff may continue to read it - in other words, the plaintiff must establish in one way or another an acceptance by the defendant of a responsibility for the continued publication of that statement. 77Accordingly, I would respectfully not share Beach J's view that there is any relevant difference between the decisions in Bunt v Tilley, Metropolitan International Schools and Tamiz and the common law of Australia. 78After the decision in Trkulja, the English Court of Appeal determined an appeal against the decision in Tamiz: see Tamiz v Google [2013] EWCA Civ 68. A focus of the appellant's argument was an attack on the correctness of Eady J's earlier decision in Bunt v Tilley. It was noted in that context that "the courts in Australia have not accepted the Bunt v Tilley analysis", a reference to Beach J's decision in Trkulja. The Court of Appeal expressly endorsed the correctness of Bunt v Tilley "in relation to the kind of internet service under consideration in that case" (internet service providers): at [23]. The Court also endorsed Eady J's analysis of Google Inc's role prior to notification of a complaint. Richards LJ, with whom Sullivan LJ and Lord Dyson MR agreed, said (at [26], authorities omitted): I am also very doubtful about the argument that Google Inc's role is that of a secondary publisher, facilitating publication in a manner analogous to a distributor. In any event it seems to me that such an argument can get nowhere in relation to the period prior to notification of the complaint. There is a long established line of authority that a person involved only in dissemination is not to be treated as a publisher unless he knew or ought by the exercise of reasonable care to have known that the publication was likely to be defamatory. 79The Court of Appeal took a different view from Eady J on the issue of Google Inc's liability for publication of the blogs after notification of the complaint. However, the Court upheld his Honour's conclusion, applying the principles stated in Jameel, that in light of the short period of defamation, the claim was so trivial as not to justify the maintenance of the proceedings: at [48]-[50]. 80Google Inc also referred me to the recent decision of the High Court in Google Inc v ACCC [2013] HCA 1. However, that was a misleading and deceptive conduct case. I do not think the decision assists in the determination of the present issue. 81I should also note that Mr Smark referred to two decisions which he submitted support the plaintiff's argument on this issue. The first was the decision of the Federal Court in Rana v Google Australia Pty Ltd [2013] FCA 60. In that case, considering a claim against Google Inc and after an analysis of the authorities discussed above, Mansfield J stated (at [58]) that the question "whether or not a search engine could be considered a publisher of defamatory material is not settled in Australia". Accordingly, his Honour did not think it would be appropriate to refuse to give leave to serve the proceedings on Google Inc. However, as noted by Mr McClintock, the claim in that case was based on the alleged publication by Google Inc of defamatory matter on websites it hosted. It was not a search engine case. 82Secondly, Mr Smark relied upon the decision in A v Google New Zealand Ltd [2012] NZHC 2352 (cited by Mansfield J in Rana in the passage referred to above). In that case, Associate Judge Abbott expressed the view, in obiter dicta, that it is reasonably arguable that "a search engine is a publisher" and held on that basis that it would be inappropriate to strike out that claim (at [71]). The decision contains a careful analysis of relevant authorities. However, it has not persuaded me from the view I have reached in the present case. 83The evidence before me establishes that there is no human input in the application of the Google search engine apart from the creation of the algorithm. I would respectfully disagree with the conclusion reached by Beach J in Trkulja that the performance of the function of the algorithm in that circumstance is capable of establishing liability as a publisher at common law. I would adopt the English line of authority to the effect that, at least prior to notification of a complaint (and on the strength of the evidence before me), Google Inc cannot be liable as a publisher of the results produced by its search engine. 84Mr Smark submitted that this is an issue which is not suitable for summary determination, since it is capable of being informed by further evidence as to the operation of Google's systems at the relevant times. That of course is a consideration which points in two directions in the present application. On the one hand, it is a reason for not determining the application on the basis of the publication issue alone. Conversely, it reinforces the strong probability that these proceedings will be lengthy, complex and expensive. 85I am satisfied, on the strength of the evidence before me, that it is highly unlikely that Mr Bleyer would be able at trial to establish that Google Inc is liable for publication of at least the first two alleged downloads of the matters complained of. The position is more complex as to the third download, which occurred after Google Inc received notice of Mr Bleyer's complaint. As already noted, Google Inc operates a voluntary notice and take down procedure and that procedure was engaged in the present case. It resulted in a positive response in respect of part but not all of the material complained of. That is probably enough to save the claim from summary dismissal on the General Steele test. However, my conclusion on the issue of publication is plainly relevant to a consideration of the proportionality principle.

Innocent dissemination 86Google Inc submitted that, having regard to the mechanism of a Google search, it will undoubtedly have a "defence" of innocent dissemination. In saying so, Mr McClintock submitted that, although referred to as a defence (as it is in s 32 of the Defamation Act 2005), innocent dissemination is in effect a denial of publication. For the reasons already considered in the context of the issue of publication, if I am wrong in my conclusion as to publication, the overwhelming likelihood is that the defence of innocent dissemination would be successful, at least in respect of the period prior to notification. 87As to the period after notification, the issue is probably not amenable to summary determination. However, the issues surrounding the defence serve to reinforce the complexity of the plaintiff's claim, which has informed my conclusion as to the issue of proportionality. 88Google Inc relied separately on its likelihood of succeeding in mounting a defence under clause 91 of schedule 5 to the Broadcasting Services Act 1992. During the course of the hearing, however, Google withdrew its reliance on that defence at this stage of the proceedings in connection with the present application. Again, the spectre of having to determine that issue reinforces the complexity of the plaintiff's claim and is a factor relevant to the assessment of proportionality.

Unenforceability of an Australian judgment in the United States 89Finally, Google Inc noted that, even if Mr Bleyer is ultimately successful in the present claim, his judgment will not be able to be enforced in the United States. Google Inc proposed to rely upon the affidavit of an expert, Mr Harry Melconian, sworn 18 September 2013 to establish that proposition but, in the event, it was not disputed by Mr Bleyer. Google Inc noted that, since 1964 when the Supreme Court of the United States decided New York Times v Sullivan 376 US 254 (1964), there has not been a single reported State or Federal decision in which a foreign defamation judgment has been recognised and enforced in the United States. 90The potential unenforceability of the judgment is plainly relevant to the consideration of the proportionality principle. Mr McClintock made it clear, however, that he relied upon that point as a separate reason for staying the proceedings. He submitted that this Court should not undertake an exercise that is futile. The argument was put as an aspect of the need to maintain the Court's authority. Mr McClintock submitted that it would undermine the authority of the Court to invoke its processes for a futile purpose, just as the Court is unwilling to determine a hypothetical question. 91The proposition contended for by Mr McClintock finds some resonance in the remarks of Lord Hoffman in Berezovsky quoted in Jameel. 92A similar point was raised in the decision of Sackville J in ACCC v Chen [2003] FCA 897. Mr Chen had established a fake Opera House website which invited people to pay money on-line to attend events at the Opera House. The money was in fact diverted to private bank accounts overseas. Mr Chen never appeared in the proceedings against him in the Federal Court. Sackville J raised the question of the utility of granting the relief sought by the ACCC. Ultimately, his Honour was persuaded to grant an injunction on the basis that, if Mr Chen ever entered the jurisdiction, it might have some utility. 93I accept that this Court could, in an appropriate case, stay proceedings in which the relief sought was entirely futile. However, I do not think a defamation action must inevitably be characterised as being futile on the grounds that any judgment obtained will be unenforceable against the defendant. An aspect of the remedy afforded by the tort of defamation is that it vindicates a person's reputation by enabling him or her to "nail the lie". 94However, in my view, the fact that any judgment obtained by Mr Bleyer will be unenforceable against Google Inc is a strong consideration in assessing whether to exercise the discretion to stay the action on the grounds of proportionality. Further, I accept, as submitted by Mr McClintock, that considerations of proportionality ultimately reflect or find their source in the institutional authority of the Court.

Conclusion 95In the present case, the plaintiff seeks to invoke the processes of the Court to vindicate the alleged harm to his reputation when three people undertook a Google search in terms which produced the matters complained of. As to two of those it is clear, in my view, that Google Inc is not liable as a publisher. 96Google Inc adduced evidence of an estimate of its likely costs of the proceedings on the basis of a five-day trial, which may be conservative. The estimate was that Google's costs would be in the order of $370,000 (not taking into account the costs of any appeal). 97The complexity of the issues raised by the action will be apparent from this judgment. There will at least be issues to be determined as to whether Google Inc has a defence of innocent dissemination under s 32 of the Defamation Act and the availability of a defence under clause 91 of schedule 5 to the Broadcasting Services Act 1992. It is acknowledged that, if the plaintiff is successful, he will be unable to enforce any award of damages. The interest at stake is his entitlement to vindicate his reputation in the eyes of one person. In all the circumstances, I am persuaded that the resources of the court and the parties that will be expended to determine the claim are out of all proportion to that interest. 98For those reasons, pursuant to order s 67 of the Civil Procedure Act 1995, I order that the proceedings be permanently stayed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 August 2014