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[2013] NSWDC 146
District Court of NSW
2013-08-16
Original judgment source is linked above.
Judgment 1This is an application by Google Australia Pty Ltd (ACN 102 417 032) ("Google Australia") for summary dismissal of defamation proceedings commenced against it by the plaintiff for the publication of three blogs: (a)"holidayhousefromhell.blogspot.com" (http://holidayhousefromhell.blogspot.com.au/search?updated-min=2011-01-01T00:00:00%2B11:00&updated-max=2012-01-01T00:00:00%2B11:00&max-results=9); (b)"Where NOT to go: Never again. HORRIBLE HOLIDAYS ON THE GOLD COAST, BUNDALL GOLD COAST" (http://travel.ninemsn.com.au/domesticinsiders/goldcoast/660485/gold-coast-where-not-to-go); and, (c)"A Current Affair's Naked Neighbours Video of November 2011" (http://surfbreakrentals.tumblr.com/) 2The application for summary dismissal was heard on 16 August 2013. The plaintiff asked for additional time to provide me with documentation in support of her claim, which she has sent me on 19 August 2013. As I am on circuit in Wollongong, the parties agreed that I could hand down judgment in Wollongong and that I should dispense with the need for an appearance on behalf of any of the parties. 3The plaintiff's claim was initially commenced in the Newcastle Local Court, but was then discontinued, as the Local Court has no jurisdiction in defamation: s 33(1)(b) Local Court Act 1982 (NSW). Seven other defendants are named in the statement of claim, but they are not parties to the application, and do not appear to have been served in accordance with r 10.20(2)(a) Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). I have not been provided with a copy of the Local Court proceedings, and it is unclear how many of those defendants were parties to that action. The second to seventh defendants, against whom these and a further four claims of defamation are pleaded, are not in court today. The first defendant is not a party to the remaining four claims. 4The particulars of publication recite that each matter complained of was published "online on the world wide web", on "Google Australia", which operated as a "feed, constantly updating more and more slander from all defendants". The blogs were "repeatedly attached and sent to all listing holiday rental websites" by "all defendants, urging each successive holiday rental website to remove the plaintiff's listings." 5Google Australia seeks summary dismissal of the claim under r 13.4 UCPR. An affidavit in support, sworn by Marlia Ruth Saunders on 15 August 2013, provides evidence to the effect that: (a)Google Australia is a wholly owned subsidiary of Google International LLC registered in Victoria, and Google Inc, which is incorporated in the State of Delaware in the United States of America, is the ultimate holding company of Google Australia; (b)Google Australia is not responsible for the day-to-day operations of Google Inc and is neither authorised to, nor able, to control or direct the conduct of Google Inc; (c)Google Australia does not own, operate or control the Google Inc service known as Blogger, nor does it have the ability or power to control or direct Google Inc's actions in respect of removals of any material hosted by Blogger. It is therefore not in a position to take any action in respect of the removal of any material from Blogger, including controlling or directing action in respect of blocking internet publication; and (d)Google Inc owns and operates the domains google.com.au as well as google.com. Search engines at the domains mentioned are exclusively operated and controlled by Google Inc. 6The plaintiff's documentary evidence to support her assertions that Google Australia control the search engines consists of the copyright notice for these websites and related material, which she forwarded to the court on 19 August 2013. That copyright notice reads: "Copyright © 2013 Google Inc. All rights reserved" 7It would also appear that the copyright notice exists elsewhere simply as "©Google". 8Even assuming (which I do not accept) that possession of copyright gives Google Australia some kind of power to act in relation to breach of copyright (as to the difficulties of which, see Roadshow Films Pty Ltd v iiNet Ltd (2012) 286 ALR 466), this does not enable Google Australia to act in relation to claims of defamation. The plaintiff does not otherwise challenge Google Australia's evidence in support of the motion. 9Google Australia relies on Rana v Google Australia Pty Ltd [2013] FCA 60, where a similar claim failed. The plaintiff in those proceedings made identical submissions (at [35] - [36]), namely that Google Inc owns and operates the business that supplied the Google Web Search and other Google produces, and that it offers the products on its website to the public pursuant to written terms of service which affirm that these services are provided by Google Inc. 10This decision is the latest in a series of decisions where actions against Google Australia have been summarily dismissed. In the first of these, Duffy v Google Inc [2011] SADC 178, where an application for interim injunctive relief was brought against Google Australia, Millsteed DCJ stated: "[23] The plaintiff's application for injunctive relief against Google Australia must fail if for no other reason than there is no evidence Google Australia has the ability to remove URL links and snippets from the Google Search index. [24] The plaintiff's case in this regard is based upon a weak inference that she seeks to draw from the following circumstances. After the plaintiff's proceedings were served on Google Australia, on or about 18 February 2011, but before they served on Google Inc, six of the URL links that were the subject of her claim were removed from the domain . On 29 May 2011 a Google search conducted by or on behalf of the plaintiff on using the keywords "Dr Janice Duffy" provided a list of URL links at the bottom of which appeared the words "In response to a legal request to Google, we have removed 6 result(s) from this page". [25] As I understand the plaintiff's argument it is suggested that it can be inferred from the removal of the URL links prior to Google Inc being served that Google Australia had some control over their removal. The argument is entirely speculative. Google Inc may have decided, as a result of earlier requests from the plaintiff, to remove the URL links without any input from Google Australia. It may be the case that Google Australia contacted Google Inc and requested the removal. Even then it does not follow that it has the legal capability to conduct such removals whether acting alone or as an accessory to Google Inc There are, of course, other possible explanations for the removal of the URL's upon which the plaintiff relies. [26] A court will not make an injunctive order which cannot be complied with: Active Leisure Sports Pty Ltd v Sportsmans Australia Ltd [1991] 1Qd R 301 at 308. There is no evidence before me that supports the plaintiff's assertion that Google Australia exercises some relevant legal control over Google Search and would, therefore, be able to meet the terms of the proposed orders. It is not sufficient for the plaintiff merely to assert in her statement of claim that Google Australia in some way shares control of Google search with Google Inc The assertion has been contradicted by the contents of Mr Stewart's sworn affidavit and documents exhibited to it. [27] Accordingly, the application for injunctive relief against Google Australia must be dismissed." 11In A v Google New Zealand [2012] NZHC 2352, Google New Zealand brought a summary judgment application in relation to proceedings for defamation in relation to material accessible though the search engine domain name google.co.nz. The court concluded (at [44]) that the operation and control of the Google search engine resides with Google Inc and not with Google New Zealand. Google New Zealand did not meet the test of being able to have prevented the continued publication of the material (Sadiq v Baycorp (NZ) Ltd [2008] NZHC 403). 12Similarly, in Tamiz v Google Inc and Google UK Ltd [2012] EWHC 449 Eady J noted (at [4]) that Google UK Ltd, which did not operate or control Blogger.com, had been "joined in the proceedings inappropriately". 13As Mansfield J held in Rana v Google Australia Pty Ltd at [40], the same reasoning is applicable for Google Australia as for the subsidiaries in New Zealand and in the United Kingdom. 14The plaintiff, in the series of nine further written submissions she sent on 19 August, relies upon Trkjula v Google Inc (No 2) [2010] VSC 490 and Trkjula v Google Inc (No 5) [2012] VSC 533 as establishing that she can bring proceedings against Google Australia. Both these actions were brought against Google Inc, not Google Australia, and are of no assistance to the plaintiff. The plaintiff also relies upon newspaper reports of other persons suing Google. Not only do those reports fail to refer to Google Australia, but they relate to proceedings which have not resulted in the consideration of this claim by any judge. 15The plaintiff also drew my attention to press reports concerning a French decision, MX v Google Inc, Eric S, Google France (Paris Tribunal de Grande Instance, decision of 8 September 2010). In that litigation, both Google France and Google Inc were parties. Google Inc was held liable, but the court accepted submissions that Google France was inappropriately joined ("En revanche, c'est à bon droit que la société Google France sollicite sa mise hors de cause, n'ayant pas de responsabilité directe dans le fonctionnement du moteur de recherche ni dans le site google.fr."). As to the liability of Google Inc, the contrary result occurred in Metropolitan Schools Ltd (t/as Skillstrain and/or Train2game) v Designtechnica Corporation (t/as Design Trends), Google UK and Google Inc [2009] EWHC 1765, as Inforrm ("Google found liable for defamation by French court", 26 September 2010) points out.. 16Cases against entities other than Google Inc have been commenced (for example, in McKeogh v John Doe 1 & Ors [2012] IEHC 95 the proceedings were commenced against Google Ireland) but the question of its liability was not raised, presumably because the relevant material had been removed from youtube prior to the interlocutory relief sought. 17The weight of all these decisions confirms there is no reasonable prospect of the plaintiff proving that Google Australia has the ability to control or direct the conduct of Google Inc, and thus she has no reasonable prospects of succeeding in her claim. The claim against Google Australia must be dismissed.
The future conduct of these proceedings 18The plaintiff has not sought leave to amend to join any other party in the place of Google Australia Pty Ltd, and it is unnecessary for me to consider the considerable problems the plaintiff would have in seeking to bring proceedings against Google Inc, some of which are outlined by Mansfield J in Rana, supra, at [42] - [82]. 19This brings me to the remaining claims against the second to seventh defendants. Although the plaintiff tendered evidence of postage of the statements of claim on these parties, that is not a satisfactory means of compliance with r 10.20(2)(a) UCPR. The other defendants must be personally served with any amended statement of claim, and I have made an order to that effect. 20The statement of claim in its current form suffers from many deficiencies of pleading. These deficiencies include a claim for statements made in the course of CTTT proceedings, failure to provide proper particulars of identification, limitation issues and rolled-up pleadings. The proper pleading of defamation claims is complex and the plaintiff would benefit from legal advice before incurring more expense. 21The plaintiff asked me to reserve costs, or to make an order that the costs be payable at the end of the proceedings. I reject those submissions. The plaintiff's claim against Google Australia Pty Ltd is completed, and it is entitled to an order for the costs of the proceeding, as was the case in Rana v Google Australia Pty Ltd (at [41]). This means those costs may be assessed now.
Orders (1)Plaintiff's claim against the first defendant, Google Australia Pty Ltd, is struck out and dismissed pursuant to UCPR r 13.4. (2)The plaintiff pay Google Australia Pty Ltd's costs of the proceedings. (3)The plaintiff have leave to file and serve an amended statement of claim, such amendments to include deleting any claim against Google Australia Pty Ltd, by 20 September 2013. (4)The amended statement of claim must be personally served on each of the defendants named therein, together with a copy of this judgment. (5)These proceedings stood over for directions to the District Court (Newcastle) on 10 October 2013 for consideration of any application that these proceedings should travel together with proceedings number 2013/88183.
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: 20 August 2013
Ghosh
Google Australia Pty Ltd