Defamation

Aussie’s successful bid to sue Google may inform Canadian courts

By AdvocateDaily.com Staff

The case of an Australian man who recently won his battle to sue Google puts the search engine giant on notice it may be liable for any defamatory content it facilitates, Toronto lawyer and mediator Howard Winkler tells Newstalk 610.

In a matter that dates back to 2004, the Australian High Court unanimously ruled in favour of the man, supporting his allegation that a Google search of his name might suggest he was associated with the Melbourne criminal underworld, reports CBS.

Winkler, principal and founder of Winkler Dispute Resolution, says doing a search of a new friend or potential business partner has become a routine way of researching people in modern society.

“If you’re applying for a job it’s not uncommon for employers as part of their background check to search Google,” he says. “If you’re trying to do business with someone, it’s not uncommon before you embark on that relationship to Google the person's name to see what kind of reputation they have.”

The Australian courts, by virtue of their experience in this case and similar others, are far ahead of Canada in dealing with cases of defamation, and will be instructive for courts in this country as more cases arise, Winkler says.

“Australia, like Canada, is a common law jurisdiction so their laws of defamation and the traditional principles they rely on are the same as the common law principles that we rely on in Canada,” he says. “Courts in Ontario, when they’re dealing with novel issues, often have recourse to decisions that have been made in other common law jurisdictions to assist them in developing the law in Canada.”

The Australian courts have indicated that under certain circumstances Google will be considered a publisher, and if they are given notice of defamatory content and refuse to take the material down, they become a co-publisher and will be responsible for any damages that are done by the false and defamatory material they make available, Winkler says.

“With Google and Facebook, the issues we’re confronting is these service and content providers have tremendous power,” he says. “They’re just not transmitting other people’s information. They are actually compiling data and...determining what the search results will be.”

In Australia, Winkler says Google tried to excuse its conduct by saying their algorithms are very complicated and that they can’t be expected to monitor and supervise all of the content made available.

“But the court said, ‘It’s your business model, it’s your algorithm and so don’t complain to us that you don’t — through the deficiencies in your own business model — have the ability to control defamatory content you’re making available,'” he says.

One of the historical challenges facing courts is that under normal circumstances, Canadian judgments can only be enforced within this country, but that’s beginning to change, Winkler says.

“What the court has started to do is make these worldwide orders,” he says. “In one case in Canada with respect to an intellectual property issue, the court issued a worldwide injunction against Google. However, there then exists this struggle between the Canadian court and foreign courts related to enforcement.

"Google then went in the U.S. for an order to declare that that injunction was unenforceable, (arguing that) under U.S. law the result would have been different," he says. "The U.S. court granted that injunction and refused to enforce that Canadian judgment.”

An issue that comes up frequently in Winkler’s practice is businesses upset with negative reviews appearing in search results.

“If you’re a Canadian and you’re upset with something Google has done — and this comes up all the time with respect to business reviews — Google Canada takes the position they don’t host the servers and they tell you that you have to go to California, essentially putting up roadblocks,” he says, adding in some of his cases, he’s provided a copy of the Canadian order to Google in the U.S. and they removed the offending material.

Winkler says he expects that in the wake of the Australian ruling, Google will have to face the reality that in common law jurisdictions, absent legislative immunity, they will become liable for defamatory content they encourage and facilitate.

“With the power they have to affect someone’s reputation in the way they do comes a certain degree of responsibility they should impose on themselves,” he says.

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