Right To Be Forgotten Now Lives In Australia: Court Says Google Is The 'Publisher' Of Material It Links To
from the bad-precedent dept
Earlier this year, we wrote about a ridiculous lawsuit in Australia where Janice Duffy was suing Google because the search engine returned links to some Ripoff Report pages that Duffy claimed were defamatory. As we noted at the time, this is just a ridiculously misguided lawsuit on multiple levels. It's not targeting whoever wrote the supposedly defamatory material. It's not even targeting who hosted the supposedly defamatory material (which would be problematic enough). It's targeting... Google. Because it finds the supposedly defamatory material. After our story was published, Duffy took to Twitter to yell at us, but refused to provide any further details, other than to complain that we were trying to "humiliate" her.And, I guess she gets the last laugh, because, amazingly, an Australian court has agreed that Google can be held liable for the content and should be considered the "publisher" of the content. Despite Duffy's claims, we're not trying to humiliate her at all. We agree that it cannot be any fun at all to have people post stuff online about you that is not true. But we have very, very serious concerns about the consequences of blaming third parties (or even fourth parties) for the speech of others. It creates tools and incentives for widespread censorship of lots of perfectly factual information, just to deal with the rare cases of defamatory information that can't be removed or countered through other means. And, on top of that, by putting liability on third and fourth parties, it creates a massive chill on innovation and platforms that enable and enhance speech, leading to a serious decrease in innovation.
None of that seems to matter to Duffy or the Australian court. The whole ruling is bizarre, repeatedly claiming that because Google links to something, it "publishes" that something. I know they speak a different version of English down under, but this seems like an extreme re-interpretation of the word "publish."
The defendant was a publisher of allegedly defamatory paragraphs on its websites and a republisher via hyperlinks to the Ripoff Report webpages the subject of those paragraphs being those for which the plaintiff sues and of which the plaintiff gave notification and which the defendant failed to remove within a reasonable time. This applies to the first four Ripoff Report webpages and the paragraphs referring to them and several paragraphs referring to secondary websites'The full ruling actually goes into real depth on how the whole situation with Ripoff Report came about, and it appears it actually began with Duffy posting to Ripoff Report, complaining about some psychics she had used who provided her false info about a potential love interest. She also appears to have posted in a number of other places about these psychics, including making up a false persona "Oswald Billet" and saying that someone had committed suicide after getting false information from psychics. From the court's ruling:
On 18 July 2007, Dr Duffy under the username "Janice" posted a report on the Ripoff Report website about Kasamba. She listed names of psychics operating on the Kasamba website who she said were completely wrong about the outcome with someone she had met. The names included Master Z, Fruno and Powerful Visions. She subsequently posted further reports and comments on reports by others on the Ripoff Report website.It would appear that someone associated with the psychics didn't like all this and then went to Ripoff Report and posted something about Duffy calling her a "psychic stalker." Given all of the above activity, you can see why someone might make that claim -- but really, at this point, debating who's being honest here seems kind of pointless. We're dealing with someone who trusted a psychic and then flipped out after their predictions were not correct. And then the same psychics attacked back. No one comes out of this looking good.
On 29 July 2007, Dr Duffy created a chat group on yahoo.com under the name “kasambavictims”. Dr Duffy posted the internet address of the chat group on the Ripoff Report website. Dr Duffy communicated over the internet with persons who joined this chat group. Dr Duffy gave evidence that she wrote some of the posts on the Kasamba and Ripoff Reports under usernames other than her own name by reference to events narrated by or in conjunction with some members of this group.
On 4 and 15 September 2007, Dr Duffy participated in online email exchanges on Kasamba with SunshiningUponYou. Dr Duffy said that Sun’s January prediction that May would be an amazing month for Jon and herself turned out to be wrong when Jon ditched her for good in May and she had a breakdown. She asked why Sun had made that prediction when the opposite turned out. Sun replied saying that Sun's timeframes were not always right, Jon would in time realise how stupid he had been and Dr Duffy should focus on being well right now.
Between 26 and 30 September 2007, Dr Duffy participated in further online email exchanges on Kasamba with SunshiningUponYou. Dr Duffy expressed pessimism and despair about a relationship with Jon and personal pain, anguish, foolishness and depression. Dr Duffy expressed a loss of faith and trust in SunshiningUponYou. Dr Duffy's last post complained that she had spent hundreds of dollars on Sun’s readings, accepted that no relationship with Jon would happen and criticised Sun for making promises Dr Duffy trusted that did not eventuate.
In December 2007, Dr Duffy registered with the Kasamba website the username “ozzieb” under the name Oswald Billet. On 18 December 2007, Dr Duffy under the username "ozzieb" posted three online messages on the Kasamba website to SunshiningUponYou saying that his wife’s friend committed suicide on 17 December. Ozzieb posted that Sun was responsible for the death because she told his wife's friend lies that she would be with someone who was using her and who had married someone else. Ozzieb said that he would send Sun's communications with his wife’s friend to the head of Kasamba and the national media. Sun did not respond to the posts.
On 19 December 2007, Dr Duffy under the name Oswald Billet sent an email to Kasamba saying that his wife’s friend committed suicide on 17 December and complaining about SunshiningUponYou's conduct leading up to the suicide. On 28 December 2007, Dr Duffy under the username "Friend's Husband" posted a report on the Ripoff Report website about the suicide of his wife's friend and complaining about SunshiningUponYou's conduct leading up to the suicide.
Either way, Duffy demanded that the links to stories about her on Ripoff Report be taken off Google and Google refused. This should be the end of the story, but as we detailed earlier this year, Duffy then became wholly focused on suing Google, which doesn't seem likely to actually improve her reputation at all. But... still, the court ruled in her favor, suggesting a ridiculous broad and dangerous theory of "publication" that covers anyone who comes anywhere near the publication:
I reject Google’s contention that a defendant can only ever be a publisher if the defendant authorises or accepts responsibility for the publication. Such a test is apposite when the defamatory matter is physically attached to the defendant’s property without the defendant’s knowledge or permission, although in that case a better formulation of the test may be whether the defendant has acquiesced in the defamatory matter remaining on the defendant’s property knowing that it will be seen by others. The posited test is not apposite when the defamatory matter is disseminated by the defendant itself and is inconsistent with the innocent dissemination doctrine. The appropriate test remains whether the defendant has participated in the publication.From that, the court claims that Google played "a critical role" in all of this:
Google was the sole operator and controller of the Google website. The paragraphs resided on Google’s website. The paragraphs were communicated by Google to the user conducting a search. Google played a critical role in communicating the paragraphs to the user. The physical element of publication is present. Google did not play the passive role of a mere conduit such as an internet service provider who merely provides access to the internet or a telecommunications carrier who merely provides access to the telephone network. Google played an active role in generating the paragraphs and communicating them to the user. The mere fact that the words are programmed to be generated because they appear on third party webpages makes no difference to the physical element. It makes no difference to the physical element whether a person directly composes the words in question or programs a machine which does so as a result of the program.This is dangerous. The idea that a search engine can be held liable for defamation because its algorithm does its job correctly is immensely troubling. Even if you absolutely hate Google, this kind of ruling should worry you. Placing liability on the parties actual responsible is the hallmark of a functioning society. Blaming intermediaries creates all sorts of dangerous consequences on speech and innovation.
The ruling gets worse and worse from there, including lines like the following:
By providing the hyperlink, Google’s software plays an essential role in the delivery of the content of the webpage to the user upon request.The court rejects basically all of Google's defenses, repeatedly going back to a statement that more or less says "but you published this defamatory information." It's like banging your head against a wall. The court is so sure that Google is responsible and won't be persuaded in any way that that's not the case. There are still some issues in the case that will go to trial, but on the key issue, this ruling is a disaster. Australia has basically just wiped out the idea of intermediary protection from liability -- and if you're an internet service provider in Australia, your legal liability just went way, way up.
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Filed Under: australia, defamation, free speech, intermediary liability, janice duffy
Companies: google, ripoff report
Reader Comments
The First Word
“Now the Australian Court is guilty too...
Oops! They just published a judgement which contained all the defamatory information!Now they're guilty too!
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Unlimited liability for newpaper delivery boys?
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The court has a reasonable argument.
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In other news...
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Legally speaking, this is not actually nuts.
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Re: The court has a reasonable argument.
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There's More Than One Way To Play This Game
"Samsung was the sole designer and creator of the monitor. The paragraphs resided on the Samsung monitor. The paragraphs were communicated by Samsung to the user conducting a search. Samsung played a critical role in communicating the paragraphs to the user. The physical element of publication is present."
We can play the same game with Windows, her ISP, her router...
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Google are publishers of a link
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Not that worried
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Re: Legally speaking, this is not actually nuts.
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Re: The court has a reasonable argument.
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Said it before
I would actually like to see tests in various areas since you might understand how a PC works without understanding how the internet work.
Same thing for all members of Congress. No technical aptitude, no vote on technical issues... if your constituents are stupid enough to elect someone without any technical savvy, then they don't deserve a voice in process. Moral of the story... next time, elect someone with some tech expertise.
These ignorant judges making decision on topics they don't understand is the BIG miscarriage of justice.
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Re: Unlimited liability for newpaper delivery boys?
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Re: There's More Than One Way To Play This Game
Google on the other hand is a website which uses a sophisticated algorithm of it's own creation to select text from third parties to display on it's web pages.
The court is correct in a way that few people would want them to be correct, that Google chooses and selects what appears on their website, and as such, should be liable for it.
That Google uses an algo rather than say humans to select the text that appears shouldn't give them a pass. They created the code that chooses what appears on their site.
Put another way, do you think a newspaper would get away with publishing the same text snippet because their "automated news editor" found it online and decided it was news worthy and decided to publish it?
It's one of those areas where technology shouldn't be an excuse for publishing material that causes harm.
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Re: In other news...
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And yet, when the algorithm in question is matching You Tube video or audio content, and it successfully finds a match, that's okay.
It's the "any match that isn't to our content is infringing" algorithm, that the search algorithm is paired to, that we have problems with. But that, too is functioning as intended. After all, "we can always apologize and call it just a misunderstanding", right? </sarcasm>
Still...
> The mere fact that the words are programmed to be generated because they appear on third party webpages makes no difference to the physical element. It makes no difference to the physical element whether a person directly composes the words in question or programs a machine which does so as a result of the program.
Rephrased, "if you quote someone else's work, you yourself are guilty of defamation, even if you attribute said quote appropriately." Now *I* find *that* concerning.
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Heh, heh. You see the way courts regard "publishing". Sites and even Google ARE responsibile.
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Re: The court has a reasonable argument.
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Re: Re: There's More Than One Way To Play This Game
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Re: Re: In other news...
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If I were Google...
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Re: Re: There's More Than One Way To Play This Game
Google is in effect "a dumb appliance" too. It uses a one-size-fits-all approach to passing on that information; displaying a few words either side of the search term regardless of the site or content.
> Put another way, do you think a newspaper would get away with publishing the same text snippet because their "automated news editor" found it online and decided it was news worthy and decided to publish it?
In your scenario the "newspaper" is merely a news aggregator. Merely forwarding stories off AP and other news feeds with a bit of automated formatting, but no editorial or journalistic control.
In that case, YES, the "newspaper" gets a pass.
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Re: Re: There's More Than One Way To Play This Game
The gun makers created the guns that shoot the people.
The car makers created the cars that ran over my property.
The McDonald's made the fries that made me a fat ass.
How about they go after people that wrote the defamation, and the web site that posted it? Once removed, it's gone from Google. You may find it in google cache, but don't those fall under historical documents?
Google takes data that is already there, and makes it easier to find. They don't create the data any more than the gun maker made me shoot someone, than the car manufacturers made me run over that sign as I was typing this, or McDonald's made me buy the fries I'm stuffing in my face....
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Re: The court has a reasonable argument.
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Re: Re: Re: In other news...
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Now the Australian Court is guilty too...
Now they're guilty too!
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The vitriol tossed at Janice Duffy if that happens will be million times more that anything she's endured so far.
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Re: The court has a reasonable argument.
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Re: Legally speaking, this is not actually nuts.
Remember: Shoot the killer, not the messenger.
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Re: Re: There's More Than One Way To Play This Game
Me thinks once the complainant finds out that there's more to the Internet than Google, she's gonna be pissed.
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Re: Re: There's More Than One Way To Play This Game
Much like Google. It is an algorithm. An algorithm can't evaluate what's harmful or not. I'd invite you to carefully evaluate millions of texts in several languages hourly to evaluate those that are harmful and remove them. Please do try, it will spare us of your current lifetime and a few reincarnations.
Google on the other hand is a website which uses a sophisticated algorithm of it's own creation to select text from third parties to display on it's web pages.
Precisely. It reproduces text posted in another place that another human published. Thanks for confirming Australia courts are completely insane.
That Google uses an algo rather than say humans to select the text that appears shouldn't give them a pass. They created the code that chooses what appears on their site.
Yes it should. Even if the results were built by humans selecting relevant parts of the articles, pages, news. They would still not be the publishers and unless there is an express order to suppress the ORIGINAL material then there is no reason for anyone to remove them. And even so, if it's part of some opinion or news piece it should still be protected.
Put another way, do you think a newspaper would get away with publishing the same text snippet because their "automated news editor" found it online and decided it was news worthy and decided to publish it?
Yes. That's how things work in reality, you don't shoot a mere conduit/messenger, you go for the source.
It's one of those areas where technology shouldn't be an excuse for publishing material that causes harm.
And yet why isn't the original being targeted? It doesn't matter if Google removes it, it will pop up elsewhere and will be automatically listed again. If there's so much harm why isn't the original targeted? If the original is taken down the links will eventually flush as well.
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Re: Re: Legally speaking, this is not actually nuts.
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Google as Publisher
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Re: Re: Legally speaking, this is not actually nuts.
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Re: Not that worried
I know everyone here loves to hate on judges and lawyers, but this might be an entirely correct application of Australian defamation law.
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Re: Re: Legally speaking, this is not actually nuts.
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Re: Re: Re: There's More Than One Way To Play This Game
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Re: Not that worried
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Re: Re: Re: Re: There's More Than One Way To Play This Game
Where this breaks down is where US companies do business in those other countries. Google for example having offices and staff there, selling ad space and whatnot.
If a foreign search engine indexed Australian sites but did no business there, would they be liable there?
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Re:
When have Google ever apologised for that? But yes, your comment is on point.
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Re: If I were Google...
You mean like they did in China? Or in some European countries? /sarcasm
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Re:
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Re: Re: Re: Re: Re: There's More Than One Way To Play This Game
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Re: Re: Re: There's More Than One Way To Play This Game
What? What have you been smoking that makes you think that monitors 'choose' which content to display? If you have a monitor that actually does that, return it & ask for your money back.
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Just ban the printing press while you're at it, Australia.
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Re: Re: Re: There's More Than One Way To Play This Game
Because then they would not be able to bitch and moan about how horrible teh Goog is.
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Re: Re: Re: Re: There's More Than One Way To Play This Game
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Re: Re: Re: Re: There's More Than One Way To Play This Game
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Re: Re: Re: Re: There's More Than One Way To Play This Game
Google merely displays a few words either side of the search term. It does this for ALL sites using the same rules, regardless of the site or content. It's a little window on the original article, exercising no journalistic or editorial control on it. In that sense - the most logical sense - it's little different from a browser or monitor.
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Re: Unlimited liability for newpaper delivery boys?
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Re: Re: Not that worried
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Re: Heh, heh. You see the way courts regard "publishing". Sites and even Google ARE responsibile.
OOTB
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Re: Google as Publisher
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Re: Re: Unlimited liability for newpaper delivery boys?
"Soon after my blog went online Google removed it from all of its domains. My blog suddenly reappeared in the Google search results the day after I complained in a discussion in which Matt Cutts was participating."
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Poke the bear!
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Re: Google as Publisher
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It's disgusting to see you all defend this evil multi-billion dollar corporation as they try to stomp on an individual.
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Re: Google are publishers of a link
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Re:
Quick question - who should be responsible for your possibly defamatory statement? You? Techdirt? Google? Some other large company with deep pockets?
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Re:
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Most Australian judges don't use any technology
http://www.dailymail.co.uk/news/article-3217548/Top-jurist-unions-royal-commissioner-Dyson-Heydon-ea rns-3-000-day-admits-incapable-using-email-doesn-t-COMPUTER.html
So how can we expect a judge to understand a search engine? The evidence would have been printed for him/her. It would have looked like a published printed document.
As mentioned in the comments above, judges should be trained in the areas they are ruling. Unfortunately the only criteria for being appointed for life (until 70) is that you have connections in the legal community and with the politicians who appoint you. You can't be sacked for poor performance. If you don't like your boss because he comes from a blue collar background and doesn't have the royal blood of your colleagues, you chuck a huge organised tantrum until they stand aside.
http://www.abc.net.au/news/2015-05-08/decision-reveals-animosity-chief-justice-carmody-margare tmcmurdo/6454206
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Re: Re: Re: Re: There's More Than One Way To Play This Game
Video smoothing, colour adjustment, brightness detection, resolution detection...
You will be hard pressed to find a monitor that only does input and output.
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Re: Unlimited liability for newpaper delivery boys?
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Re:
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Re: Re: Re: Legally speaking, this is not actually nuts.
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Re: Re: Re: Legally speaking, this is not actually nuts.
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Re: The court has a reasonable argument.
Inapropos... the plaintiff in this case was not a copyright holder.
A closer comparison would be "second publisher" status in defamation cases.
This link seems pertinent, particularly the part about "republication" (section 7.3). (Disclaimer: the article SEEMS to be covering Australian defamation law, but I was unable to trivially verify that.) From the article:
Here, however, the judge has put Google in the same position as the original publisher. Further, his decision subscribes to the "no harm was done until it was published" position. That same "they weren't hurt until people knew about our surveillance" attitude taken by the intelligence community.
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Re: Re: Not that worried
Wow - someone got their panties in a twist.
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Re: Re: Re: Re: Re: There's More Than One Way To Play This Game
Oh look, they PUBLISH a snippet. Hmmm.
The problem here is I think mostly that tech people (myself included) can understand the painful implications of finding Google liable. However, I can also understand that publishing lies about others, even if it's a re-publishing of someone else's work, still brings some responsibility into play. We cannot give Google a pass and then have legal action against another who does the same thing in print.
If I took the same text and re-published it onto my own website, I would be liable. Why should Google be any different?
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Re: translation provided
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Re: Re: Re: Unlimited liability for newpaper delivery boys?
Guess what then the Ripoff report would be complaining to Google.
If the Australian government passes a right to be forgotten Law then Duffy could accomplish what she wanted, but short of that anything Duffy could ask for, someone else would just be as legally justified to ask for it be reversed.
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Re: Re: The court has a reasonable argument.
That's a completely reasonable take on defamation law. The entire point of defamation law is to protect people's good name, therefore the wider the content is spread, & the greater the credibility of the publisher, the greater the harm. In theory, an Australian could be sued for yelling defamatory insults at their neighbour over the adjoining fence, but in practice a judge would laugh it out of court. But publish the same stuff in the newspaper & it'd be very serious business.
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Re: Re: Re: Re: Legally speaking, this is not actually nuts.
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Re: Legally speaking, this is not actually nuts.
That would make ISP's and telephone companies responsible for defamatory messages that they pass along also. Way to go, Australia.
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Just fill in the blanks
We're sorry, Google services are no longer available in [Southern Australia]. Recent adjudications have made business inadvisable for us in [Southern Australia] at this time.
We enjoyed serving [Southern Australia] & look forward to doing so again someday. Best wishes & have a nice day.
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Re: Re: Not that worried
http://www.news.com.au/technology/man-wins-defamation-case-against-google-over-images-published -online/story-e6frfro0-1226507563956
"The jury found that Google was able to rely on the defence of "innocent dissemination" up until 2009 when the man's solicitors contacted Google to have the image removed."
And:
"The ruling comes almost eight months after the man won a similar case against Yahoo! who was ordered by the Victorian Supreme Court to pay damages of $225,000."
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Re: Re: Re: Not that worried
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For all the people outside Australia who're confused about our defamation law, here's a summary
http://defamationwatch.com.au/?page_id=13
HERE ARE THE BASICS
A. What needs to be proven by the plaintiff
1. Publication
There must be a publication of some sort, to a person other than the plaintiff. If the defendant even says something to someone else, that is a publication. Obviously, broadcast on television, an article in a newspaper and an article downloaded from the worldwide web are all publications. The publication is taken to have occurred when a person understands the words that were published. So for internet purposes, this takes place when a person, other than the plaintiff, downloads an article from a website and understands the words that are contained in that article. The place of publication is the place where the words are read and understood.
2. Identification
The publication must be of and concerning the plaintiff. It does not need to name the plaintiff, but if it doesn’t there must be some extrinsic facts, which if the reader was aware of, would enable the ordinary reasonable reader to identify the plaintiff.
3. Defamatory meaning
This is a two-stage process. Firstly, identify what is meant by the publication and secondly whether the imputations arising from the publication are defamatory. A publication is defamatory of a plaintiff if it contains imputations that:
• have a tendency to lower the plaintiff’s estimation in the eyes of right-thinking members of the society generally; or
• were calculated to injure the reputation of the plaintiff by exposing him or her to hatred, contempt or ridicule;
• have the capacity and tend to put the plaintiff in the position of being shunned and avoided.
The imputations can arise from the natural and ordinary meaning of words, or there can be inferences, such as false or popular innuendoes.
B. Defences
In most defamation cases, the issue is not whether the plaintiff has been defamed, but it is whether the defendant has a defence to the claim. To balance the community interests in having free speech and a proper functioning democratic society, there exist a range of defences that have been created by the common law over time and also according to Statute. These defences are essentially as follows:
1. Truth or justification
If the imputations are true, then the defendant has a complete defence. Regardless of what was published, the plaintiff loses. And it is the worst way to lose. The allegations are repeated at trial, over and over and possibly reported on by the media. The jury then declares that the defamation is true, exacerbating the defamation many times over. Then there is the matter of having to pay the defendant’s costs…. The statute also provides that if the imputations are substantially true, then the defendant has a defence of justification.
2. Fair comment or honest opinion
A defendant is allowed to publish a fair comment or honest opinion. For fair comment, the comment must be based on facts that are truly stated (or absolutely privileged) and the comment must be fair. For honest opinion, all that is required is that the opinion be held honestly (almost regardless of what it is!), that the opinion was based on proper material and that it was on a matter of public interest.
The next step is that the fair comment defence can be defeated if the publisher is actuated by malice. Malice is proven where a person makes a statement for an improper purpose or has an improper motive.
3. Absolute privilege
There are certain occasions where a publication is covered by absolute privilege. This means the person can say whatever they like and they have a complete defence to any defamation claim. For instance, statements made by politicians in the Houses of Parliament, extracts of certain public documents or statements made by witnesses or barristers in court (or during inquiries), are all covered by absolute privilege. You might sometimes hear politicians in the Houses urging their opponents to repeat their statements on the steps outside. This is why.
4. Qualified privilege
The next level of privilege is qualified privilege. This means there are certain situations where the statements made by people are covered by privilege and the person has a defence to any defamation claim, subject to this: that defence is defeated if the person making the statement is actuated by malice.
There are a range of situations where the qualified privilege defence exists. They include the following.
4.1 Qualified privilege: Fair and accurate report of proceedings of public concern
This applies to reports of court proceedings, parliamentary proceedings and a range of other types of proceedings that are public in nature. Obviously, the report has to be fair and it has to be accurate.
4.2 Qualified privilege: Duty to publish in circumstances where the recipient has a corresponding interest in receiving the information
This applies to situations where there is a reciprocal duty to publish and an interest in receiving the information. For instance, an employee might make statements about another person’s job performance to the Managing Director of the business, for the purposes of the management of the business. Or if a neighbor tells another neighbor that a person down the street had been investigated by police in relation to a number of violent incidents. Once again, this defence would be defeated by malice.
4.3 Qualified privilege: Discussion of government and political matter
In 1998, it was held by the High Court that there exists in the Commonwealth Constitution an implied freedom to communicate about government and political matters. This is provided that the publisher acts reasonably, which usually involves things like asking the person that is the subject of the publication for their version of events. This was a real boon for the media companies, who then had further freedom when discussing the performance of politicians and other people in public positions. As for politicians, well they were no longer renovating their homes on the back of newspaper articles questioning their sanity.
4.4 Qualified privilege: reply to Attack
An ancient defence was the reply to attack defence. This means that if a person, in making defamatory statements, is simply replying or providing an answer to an attack from the plaintiff, then there may be a defence of qualified privilege. This is a rare defence but with the advent of the internet, is likely to get used more in the future.
5. Innocent dissemination
Any person who takes part in the publication of material is, as a matter of law, taken to be a publisher of that material. This includes the author, editor, publisher and distributor. So that newsagents or other innocent disseminators are not held to be liable for defamation, the common law and the relevant legislators have created a defence of innocent dissemination. This also may have relevance to a range of new types of internet claims, perhaps involving internet service providers or hyperlinks.
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Re: Re: Legally speaking, this is not actually nuts.
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Re: Google are publishers of a link
Like they have for Pirate Bay & other torrent sites?
Not that I don't agree with your wider point, but big media have already criminalised linking to Stuff We Don't Like, & with the passage of the TPP & other corporate-friendly things, it's going to get much, much worse.
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Google might crawl a new child porn image, and this ruling says they are the publisher of that image.
Before you think no one would do that, please look at what has been happening globally as courts consistently consider Google to be the internet and at fault for everything that happens online.
Googles deep pockets make it an attractive "easy" target to hit, and courts seem to love to target Google instead of those actually responsible.
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Re: Re: Re: Re: Re: Re: There's More Than One Way To Play This Game
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A Darwin award is in order then?
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Re:
That's obviously not going to happen. This is not the first time that Google has lost a defamation case in Australia.
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of course you are trying to humiliate me
Google well may appeal, but they won't win and the writers here look like dickheads.
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Re: Re: Re: Re: Unlimited liability for newpaper delivery boys?
In the scheme of things I have recieved tons more postive responses than negative and while I didnt start this for money I will happily accept every cent. The quantum of damages is likely to be substantial.
I always believe in turning a negative into a positive and the saracsm of the writers on this website makes me more determined to lobby the Australian Government. If I am successfull the blame falls on Techdirt. Don't think that I can do it? Well who knew I would take on a bank of high powered corporate lawyers representing a corporation like Google and win?
This was a Supreme Court decision and has more influence in common law than any of the UK interlocutary judgements. Google may well appeal (eventually) to the High Court but they will lose. My silk (since yesterday) won a precedent setting defamation case in the Australian High Court so my money is on him (pun intended).
In the meantime it is a great suggestion to get Australia to adopt a 'right to be forgotten' law. Google won't pull out of Australia because they earn too much money and Ripoffreport.com won't fight it because they are scared of losing their Google page rank.
While this whole process has been distressing and Techdirt, despite their protests, have tried to humiliate me even further, I won and Techdirt has zero influence over me, Google, common law or Australian legislation. The government will listen to me, Techdirt, not so much.
So thank you for giving me the idea.
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Re: Re: Re: Re: Re: Unlimited liability for newpaper delivery boys?
No it doesn't. EVER.
No matter the chilling effect of enacting that law would have, believe me when I tell you that just because you have had a lot more positive supporters than negative in no way states what the actual legal fraternity actually thinks of your case.
It is wrong on a few levels, and I hope you realise and your solicitors have advised you that the SC of South Aust is NOT the last step in this process.
This decision is being looked at very closely and people are highly concerned. Your case is not a Gutnick, your case IMO is more damaging and stop putting words into your silks mouth, they don't appreciate it and will now most likely be questioned over it. *shakes head in wonder at stupidity of laypersons* Also your case is NOT precedent, hopefully though it becomes more obiter soon.
Good luck in lobbying the Govt, though be aware myself (who is actually an Australian) will be doing it too to stop your egocentric attempts.
>>> I won and Techdirt has zero influence over me, Google, common law or Australian legislation.
Really? you think Techdirt (in as far as the people who actually write for it) care about humiliating you? they are writing about the stupidity and egocentric nature of your case. As for the rest of your comment the phrase "lol wut" comes to mind.
I wish you luck in your next lobbying endevours, though don't expect it to be as easy sailing as you think.
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Re: For all the people outside Australia who're confused about our defamation law, here's a summary
the Arts Law Centre would of been a bit better and less weird :) ( http://www.artslaw.com.au/info-sheets/info-sheet/defamation-law-for-material-published-after-january -2006 )
For those (especially Attorneys) that would actually like to read the specific leglislation that this case is using here's the SA legislative link with a link to the PDF and/or RTF
http://www.legislation.sa.gov.au/LZ/C/A/DEFAMATION%20ACT%202005.aspx
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Re: Re: Re: Re: Re: Unlimited liability for newpaper delivery boys?
For a pro Se plaintiff you have done well for yourself, though the insanity and stressors are normal. You need to now sit back and take it easy.
As for your former employer..... well based on what you have supplied you have ample ability now to have a nice word with them and maybe the FWA as well. I wish you luck in that regard, though you shouldn't need much luck. Just remember, amicability and compromise works better and in practice might be the best interest of yourself for future employment.
Your case though re google has IMO major concerns and ramifications that go beyond yourself. Listen to your silk and solicitors, take there advise and be pragmatic, and look to your future not to the quantum of damages (that's not going to be decided for a long while and might be in our vernacular "bugger all")
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Calling people 'dickheads', always a great way to look mature...
While you're here, might I suggest you go to the top of the page, and do a quick search for 'Streisand Effect', see how well threatening someone to shut them up has worked for others in the past, both on TD and elsewhere.
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Re: Re: There's More Than One Way To Play This Game
The valid point is that
"The Law is an ass"
By the legal definitions and the legislation used, the courts have ruled correctly. However, that doesn't mean that they have ruled wisely.
You must remember that the legislation has been created by politicians here (many of them involved in the legal profession at some point) and much of it is to protect themselves or their mates.
Politicians have the right to say anything they want in parliament and no recourse is available for anyone for anything that is said there. The same is true for the courts.
Look to your own courts about the ruling that when physically leaving the USA, you lose your constitutional rights and have no recourse against your own government agencies and agents. This is by the law and yet is utmost foolishness.
When a man writes a law, the results are based on what a man will do with it and how a man will twist it for his own benefit against those who he opposes.
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Re: For all the people outside Australia who're confused about our defamation law, here's a summary
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Re: Re: Re: Re: Re: Re: There's More Than One Way To Play This Game
Oh look, they PUBLISH a snippet. Hmmm.
No, they don't. They copy a portion from the articles that an algorithm finds relevant against the whole article. Impartially. If an article is written praising Hitler and promoting hate speech it will do EXACTLY the same. And the original article would be legal and fair game in the US for instance. But even if it wasn't then the ORIGINAL should be targeted. Not Google.
The problem here is I think mostly that tech people (myself included) can understand the painful implications of finding Google liable.
No, you can't. Otherwise you wouldn't be vomiting your bullshit to the world.
If I took the same text and re-published it onto my own website, I would be liable. Why should Google be any different?
No you wouldn't. If the original is removed then you'd probably receive a notice to remove yours too. Unless, of course, it is a journalistic piece. Then you could still keep it online with all the copied portions.
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Re: Re: Re: Re: Re: Unlimited liability for newpaper delivery boys?
I don't think it's possible for anyone to humiliate you any more than you've done to yourself. Your childish gloating and accusations towards this site in your post are a testament to your true intentions. It's sad really.
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Re: Re: Google are publishers of a link
For some yes. But for the tech savy it's just going to fracture the internet into smaller, members only encrypted dark nets. Where data and opinions, however slanderous and liable they may be, can be shared freely. It's actually already started, Tor is a good example.
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Re: Re: Re: Re: Re: Re: Unlimited liability for newpaper delivery boys?
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Re: Re: Re: Re: Re: Re: Re: Unlimited liability for newpaper delivery boys?
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Re: Re:
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Re: Re: Re: Re: Re: Legally speaking, this is not actually nuts.
1) Goog does nothing
2) the article is amended
3) Goog link now points to amended article
4) everyone is happy
5) except for those still unhappy
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Re: Re: Re: Legally speaking, this is not actually nuts.
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If I publish a directory of where to buy a certain book . . .
Does Amazon?
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Re: Re: Re: Re: Re: Unlimited liability for newpaper delivery boys?
If you persist in trying to do so, be prepared to be absolutely pilloried on a global scale. Nobody likes an idiot, but we're willing to put up with them for as long as they don't cause any trouble.
You, madam, are causing trouble; I would rather not be held liable for damages to yourself for reporting on this matter on my blog, using screenshots to preserve the factual evidence, which, now that you've decided to go full Streisand, I will. The implications for freedom of speech are too great to ignore. I can tweet you the link when it's ready, if you like.
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Re: Re: Re: Re: Legally speaking, this is not actually nuts.
* Making copyright violation a criminal offence? Granting patents for naturally evolved genes?
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Re: Re: Re: Re: Legally speaking, this is not actually nuts.
* Making copyright violation a criminal offence? Granting patents for naturally evolved genes?
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Re: Re: Re: Re: Re: Re: Unlimited liability for newpaper delivery boys?
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Re: Re: Re: The court has a reasonable argument.
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Re: Re: For all the people outside Australia who're confused about our defamation law, here's a summary
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Re: Calling people 'dickheads', always a great way to look mature...
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Re: Re: Re: Re: Re: Re: Re: There's More Than One Way To Play This Game
Why do you find that so damn hard to understand, Whatever?
Google is, in effect, a calculator that does equations using words, and returns results with those words in. The algorithms they use return processed results (particularly when you have Safe Search on) that filter out results based on keywords and blacklists. That it doesn't always return the results we want is because people like Dr. Duffy have been allowed to have their way and as a result much of the content that we might be looking for has been blocked or downgraded. Don't forget that "SEO specialists" also seek to game it by keyword-stuffing, etc. Nonetheless, Google's search engine is, at heart, a calculator.
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Re: Re: Calling people 'dickheads', always a great way to look mature...
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Re: Re: Re: Re: Re: Re: Unlimited liability for newpaper delivery boys?
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Re: Re: Re: Re: Re: Re: Unlimited liability for newpaper delivery boys?
Need a link tweeted from Cockburn? Ummmmm nope
I am gonna do what I am gonna do & you are the absolute last person from whom I would take advice....a help desk person purporting to represent the Internet, I don't think so
It appears that this woman seems to think she knows more than the Google engineers who gave evidence in the trial about the automated search results
Seriously, if Cockburn is the 'we' of the Internet it was in trouble way before me.... But thank you for assisting me to realize that this is a waste of time
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Re: of course you are trying to humiliate me
She may be onto something here, take a look at Dark Helmets pic.
https://www.techdirt.com/user/ronalddumsfeld
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Re: Re: Re: Re: Re: Legally speaking, this is not actually nuts.
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Re: Re: Re: Re: Re: Re: Re: Re: There's More Than One Way To Play This Game
it isn't hard to understand. How hard is it to understand that the choice that "techdirt" = http://www.techdirt.com and includes the snippet "News, commentary, and discussions on important or interesting high tech news and includes newsletters." is made by Google. They choose what appears on their website. They could make Techdirt equal to a wikipedia entry or only beacon reader or OOTB's personal hate blog. It's a choice made by Google.
Google does much more than rote calculation. Their ranking algo is the thing of legend, they consider hundreds if not thousands of things, programmed by humans to select based on criteria they consider important, to not show sites they consider bad, banned, or some how don't meet their standards. It doesn't just perform rote calculations, in the same manner that it is not just a computer monitor or dubm display device. Google as a company chooses how information is displayed, what sites will and will not be listed, and the order in which they will appear.
They have control, they have options. They could certainly choose to exclude the sites which have this material.
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Re: Re: There's More Than One Way To Play This Game
Google is just a "repeater" just like the monitor, or the ISP, or the router. Using words you don't really understand like "sophisticated algorithm" really doesn't change that.
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Re: Google are publishers of a link
That's a wonderful world you live in.
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Re: Re: Re: The court has a reasonable argument.
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Re: Now the Australian Court is guilty too...
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Only directions
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Re: If I publish a directory of where to buy a certain book . . .
Since Google provides more than a link... you know the answer (and apparently does at least one Australian judge).
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convince a bunch of people (hundreds, thousands, millions I don't really know how many you need) to flag said site as inappropiate.
I'm sure the site will not show in the safe search results anymore.
That's because even with all the complicated comparision google does to try to give users what they want it is and will ever be just a dumb search engine.
Proof of that is that you can still find inappropiate images even with safe search activated, and will still see non-inappropiate images even when searching inappropiate images.
Google, much like any other search engine, forums, etc. trusts too much about users inputs comparing it with one's search results.
The search engine by itself doesn't really decide anything.
Yes google often excludes results, but those are either manually excluded (by google personel) or by other users (not necesary google ones, i'm pretty sure it uses external databases results to filter things)
sorry for my bad english
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Re: Re: Re: Re: Re: Re: Re: Re: Re: There's More Than One Way To Play This Game
When they start picking and choosing, they are no longer a search engine, they are a content provider right? Don't they lose a bunch of protections when they start doing that? Maybe they think paying off some trolls every now and again is easier/cheaper than changing how they do business.
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Well if that's all it takes...
Alice was beginning to get very tired of sitting by her sister on the bank, and of having nothing to do: once or twice she had peeped into the book her sister was reading, but it had no pictures or conversations in it, 'and what is the use of a book,' thought Alice 'without pictures or conversations?'
...
Lastly, she pictured to herself how this same little sister of hers would, in the after-time, be herself a grown woman; and how she would keep, through all her riper years, the simple and loving heart of her childhood: and how she would gather about her other little children, and make their eyes bright and eager with many a strange tale, perhaps even with the dream of Wonderland of long ago: and how she would feel with all their simple sorrows, and find a pleasure in all their simple joys, remembering her own child-life, and the happy summer days.
Adventures of Huckleberry Finn
YOU don't know about me without you have read a book by the name of The Adventures of Tom Sawyer; but that ain't no matter. That book was made by Mr. Mark Twain, and he told the truth, mainly. There was things which he stretched, but mainly he told the truth. That is nothing. I never seen anybody but lied one time or another, without it was Aunt Polly, or the widow, or maybe Mary. Aunt Polly—Tom's Aunt Polly, she is—and Mary, and the Widow Douglas is all told about in that book, which is mostly a true book, with some stretchers, as I said before.
...
Tom's most well now, and got his bullet around his neck on a watch-guard for a watch, and is always seeing what time it is, and so there ain't nothing more to write about, and I am rotten glad of it, because if I'd a knowed what a trouble it was to make a book I wouldn't a tackled it, and ain't a-going to no more. But I reckon I got to light out for the Territory ahead of the rest, because Aunt Sally she's going to adopt me and sivilize me, and I can't stand it. I been there before.
Frankenstein
You will rejoice to hear that no disaster has accompanied the commencement of an enterprise which you have regarded with such evil forebodings. I arrived here yesterday, and my first task is to assure my dear sister of my welfare and increasing confidence in the success of my undertaking.
...
He sprang from the cabin window as he said this, upon the ice raft which lay close to the vessel. He was soon borne away by the waves and lost in darkness and distance.
Now then, did I just 'publish' three books(in which case who knew it was that easy to become a published author?), or did I merely point you to where they can be found and include excerpts from them as additional identifying info, chosen as 'automatically'(first and last paragraph) as possible?
Claiming that an algorithm, that returns links and excerpts for better information, with no direct human input or choice regarding the link or excerpt is the same as the person or group who created and/or posted the site that the link points to, and the content on it, is absurd. That's like saying asking someone reading the paper which paper it is, and what the top story is makes them the publisher of the newspaper. In both cases the one queried is simply telling you the answer to your question, they haven't created or published a thing.
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Re: Re: Re: Re: Re: Re: Re: Unlimited liability for newpaper delivery boys?
Enjoy your victory, the internet will be broadcasting your legacy forever, and no amount of crying to the courts of Australia is going to change it.
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Re: Well if that's all it takes...
Neither. You publishes excerpts from these books, using editorial control to decide what to publish, and provided a link to the. You didn't publish a book (and nobody said you did) but you certainly did publish SOMETHING... after all, your post isn't just a link, is it?
"Claiming that an algorithm, that returns links and excerpts for better information, with no direct human input or choice regarding the link or excerpt is the same as the person or group who created and/or posted the site that the link points to, and the content on it, is absurd. "
The operation of the algo is created by someone - the company in question. They set the parameters and they make the choices. They have control over the process. If they can black hole or sandbox a site for piracy, they can sure as heck do the same for defamation...
The argument is weak. Every excerpt is something published. It's a choice to do it. Google could provide links without a text clip, and they would not have to worry about re-publishing lies, slander, or libelous statements from others.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: There's More Than One Way To Play This Game
Are you that dumb? They surely can remove links but they should NOT do it. If something is criminal or illegal the goddamn SOURCE must be targeted. It must be hard to understand because you are not the only adept at shooting the messenger instead of addressing the problem itself.
Their ranking algo is the thing of legend, they consider hundreds if not thousands of things, programmed by humans to select based on criteria they consider important, to not show sites they consider bad, banned, or some how don't meet their standards.
Sure there are ways to filter the results but the filters only work up to a point. Filters CANNOT interpret and determine if something is harmful. Even you wouldn't be able to do so without context. And then there are plain FACTS that should NOT be removed at all. And while you CAN filter something out it does not mean you SHOULD. It brings serious censorship risks. Again, why not go after the goddamn source if there's anything wrong?
They have control, they have options. They could certainly choose to exclude the sites which have this material.
And risk censoring what should remain listed? And delist pure factual material? In all your wisdom don't you think that this uas carefully weighted before the official refusal to remove the content?
This decision is madness no matter how you look at it. Had she sued the author of the content and scored a victory then I'm quite sure Google would try to flush their cache faster to help with the natural disappearance but no, she went after Google itself.
The courts are wrong, very wrong. Let's start suing the mail system for threatening letters sent through, shall we?
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Re: Re: Well if that's all it takes...
Amazon does the EXACT same. Should they be liable for something published in a book that their algorithm selects to display for potential buyers as a teaser? No? Then why is Google liable?
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Re: Well if that's all it takes...
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Re: Re: Re: Re: Re: Unlimited liability for newpaper delivery boys?
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Re: Legally speaking, this is not actually nuts.
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Woohoo, I'm a publisher!!!!!1!
It enables lawyers, of the ambulance chasing variety, of course, to do anything they can damned well get away with.
So, if I cut&paste a New York Times article into my personal Wordpress blog, I now get to be the publisher of record, and NYT isn't going to come after me for that? Sweet! I'll be rich!
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Re:
Bottomline is that techdirt is not very open/inviting to different opinions because of this. I personally don't bother too much anymore with actually 'discussing' things since it just turns into a yes/no/yes/no/you are a moron/he is a moron/no/dick/lol you ootb ?/anonymous retard game.
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Re: Re: Well if that's all it takes...
And there's the kicker, 'editorial control'. I was able to chose exactly what I grabbed, knowing before I posted it what was in it and what it meant, but Google's search engine isn't able to do the same. Whether it's set up to grab the first sentence on a page and use that as an excerpt, or a randomly chosen sentence, it will do the same no matter what's on the page, because the process is automatic, and without human choice.
The argument is weak. Every excerpt is something published. It's a choice to do it. Google could provide links without a text clip, and they would not have to worry about re-publishing lies, slander, or libelous statements from others.
And dramatically decrease the usefulness of their service, as evidenced by the fact that even those that try and shake Google down for those bits of text without fail throw a fit when Google responds by removing them. Why? Because those excerpts are valuable. An entire service shouldn't be crippled because people are too lazy to go after the source of their problems, rather than the one providing links to it.
If you think that it's that easy to spot 'lies, slander, and libelous statements', why don't you write up an algorithm to spot it, I'm sure approximately every company on the planet that hosts or links to third-party content would love to get their hands on that if courts are going to continue to be so technologically inept as to think that a search engine does anything more than return the results that the one searching is looking for.
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Re: Re: Legally speaking, this is not actually nuts.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: There's More Than One Way To Play This Game
They already do this for corporate media without doing any checking at all. Have you never done a search & seen that DMCA notice at the bottom of the page, with the link to the Chilling Effects website? Go click on the link some time, it's quite an eye-opener.
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Re: Re: Google are publishers of a link
Actually, it's the same world you live in - or do you think you have your very own private version of Google, that doesn't remove anything at all?
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Re: of course you are trying to humiliate me
Ooh, the irony. It burns.
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Re: Re:
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Re: of course you are trying to humiliate me
Says the person who talks to psychics. It must be true then.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: There's More Than One Way To Play This Game
You don't have a blog, do you, Whatever? Or a website. If you did, you'd realise it's the "meta description" that puts the snippet there.
Google doesn't do much of the actual choosing; if they ban or downgrade it's usually in response to pressures from governments, etc.
Also, you're missing the whole "search term" thing. If I put "Wendy Cockcroft" into the search box I expect to find information about women of that name in the search results. As I've already stated they can be gamed by adding the required search terms to web pages.
Make your own blog or website and play around with it, then you'll understand.
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Re: Re: Well if that's all it takes...
The snippets are provided by the website - the website published the snippet, and the website has the editorial control. The website can change the snippet anytime they want to anything they want, which is why Google isn't liable.
Take away the website, and it's gone from Google. Take it away from Google, and the website is still there. That's why attacking Google is stupid.
It should be blindingly obvious to anyone that uses the internet that Google isn't the internet.
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Re: Re: Well if that's all it takes...
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Re: Re:
What happens 10 years from now if another search engine is popular? Suddenly it's all there again.
We can argue about whether or not Google actually publishes something, but removing something from Google does nothing to fix the problem, which is why "Right to Be Forgotten" is nonsense because it doesn't fix the problem. All it does is weaken Google compared to other search engines, which is why I guess the Google haters like it.
I agree that Google needs more competition, but frankly, if I were defamed on the internet, I'd rather not spend the rest of my life playing whack-a-mole with various search results.
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Re: Re: Re: Re: Re: Re: Re: Unlimited liability for newpaper delivery boys?
tl;dr: don't make a huge fool of yourself online, then whine about the consequences.
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Re: Woohoo, I'm a publisher!!!!!1!
_____
* - In fact, every time someone on the planet loads this page, TD has to publish another copy. You're now a widely-published author, known world-wide.
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Re: Re: Re: Legally speaking, this is not actually nuts.
IMO that law is moronic, but that's not the court's fault and they're stuck with implementing the rubbish politicians pass (and Australia's defamation law is otherwise relatively decent for an English-derived system's).
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Re: Not that worried
The problem isn't the interpretation of the law (google because responsible not just for having the defamatory snippet but then refusing to remove it when asked, which appears to be correctly following the law) but the law itself, so it seems unlikely that an appeal would help fix that.
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Google says users have right to be forgotten
http://singhal.info/home/about-me/
http://recode.net/2015/10/11/googles-search-boss-talks-su rviving-and-thriving-in-an-app-world-full-video/
the comment is at the end of the video, but hey I guess users here know more than him
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Re: Re: Re: Re: Re: Re: Re: Re: Unlimited liability for newpaper delivery boys?
2. This goes into evidence for the damages trial
3. The VP of search at Google said innocent people have the right to be forgotten (see my comment and link) but I guess you think your view is more important than his
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Re: Unlimited liability for newpaper delivery boys?
Google doesn't even allow one to contact them directly to contest false information about them, information which can and oftentimes does destroy ones business reputation because of a vindictive jerk.
I know, I became the target of right wingers claiming I and my business are racist, because I dared to speak out in support of women's rights & against police violence toward black people. They published not only myriads of completely absurd reviews about my business, but also my (old) address which I no longer lived at when they wrote the reviews which proves they never visited my office, because I don't have an office my work is all done via mobile means, my family information, my images and also called for people to come deliver "karma" onto me.
But I digress... The newspaper boy, you can contact his employer, openly, and engage in a dialogue with the staff regarding what they write, and that can cause retractions.
HUGE DIFFERENCE THERE, not just on those levels, but also on myriads of others, which if this alone doesn't make you see where your fallacy lies, then nothing else will.
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Re: Unlimited liability for newpaper delivery boys?
Google has no information by which to directly contact them to dispute claims, in-fact, in order to contact them you have to be INSANELY LUCKY and happen across one of their employees.
I know this for a FACT, I've been through this because of a group of Republicans falsely posting racist reviews about me & my business because I defended black people against police violence, oh and women's rights too.
The Newspaper boy, you can contact his employer directly, anytime you wish, speak with people and seek retractions.
HUGE HUGE HUGE difference there. I'm not sure how you didn't recognize or comprehend this, but hey, the uneducated spreading fear & lies coupled with the belief of absolute nonsense, seems to be the "norm" these days.
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Re: Re: Unlimited liability for newpaper delivery boys?
Why would Google be responsible for the retractions? Wouldn't you contact the websites who *actually* published the content for that?
Putting the onus on Google for the retractions is akin to making a library reasonable for retractions in all the periodicals they have.
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I am now being psychosomatically cyber stalked by Janice Duffy aka Golden Gal aka Buffy the Gugul Vampire slayer.
Everything is in my blog. I have been fighting against Google since 2000. In one-way Google should be treated as agnostic (i.e does not take sides of who, what, where, how and why on matters of who published and who is a practicing Victimologist pro).
Suddenly, I myself been helping a lunatic family on psychiatry and cyberspace, and I see Google helping them to say I am a paedophile, nutter, rapist Indian black doctor Rajaratnam Vickneshoran, and much more. I asked google to take it down and they refused it on the grounds of they are agnostic, and they lack resource based on volumes of complain they cannot deal with. Do make your verdic of public opinion from a highly opinionated Chief Tribal herder giving nuts to the Silicon Valley based nerds psychos in the digital age and economy. Duh.
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I lodged my sensitive and personal information being breached by Google to Australian Information Privacy Commissioner, and see the questions and reply so far to them by Google in my blog.
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Re: Re: In other news...
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Re: Re: Re: Re: Re: Re: Unlimited liability for newpaper delivery boys?
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101 of Defamation law in Australia
Artists often have questions about whether their work defames someone. This information sheet describes the law of defamation (sometimes called libel or slander) as it applies to work published after January 2006. It explains how to minimise the risk of defamation and what the defences are if you are threatened with a defamation action.
In this information sheet:
Introduction
Defamation is a communication from one person to at least one other that lowers or harms the reputation of an identifiable third person, where the communicator (the publisher) has no legal defence. The law of defamation aims to balance free speech with the right of an individual to enjoy a reputation free from an indefensible attack.
While the news media tends to be the main target for defamation actions, people have also sued over poems, novels, cartoons, paintings, photographs, artistic criticisms, songs and satire. Threats of defamation actions are often used to stifle criticism or to settle other grievances such as invasion of privacy (see also the Information Sheet "Privacy and the Private Sector").
The law of defamation is complex and often unpredictable. Defamation actions are very costly, difficult to defend and substantial monetary damages can be awarded. In some cases plaintiffs can obtain a court order called an "injunction" preventing any further communication of the offending publication or material.
This information sheet describes the law of defamation as it applies to work published after 1 January 2006. It explains how to minimise the risk of defamation and what the defences are if you are threatened with a defamation action. The information sheet also describes the time limits within which a defamation action must be filed in court.
For defamatory allegations made prior to 1 January 2006 see the Information Sheet “Defamation Law – For Material Published Before 1 January 2006”.
What is defamation?
For a defamation action to succeed, the person complaining of the defamation (the plaintiff) has to prove three things:
1.that the communication has been published to a third person;
2.that the communication identifies (or is about) the plaintiff; and
3.that the communication is defamatory.
The communication has been published to a third person
To be defamatory, the material has to be published (communicated by any means – written, orally, pictorially) to at least one person other than the plaintiff. The intention of the publisher does not matter – liability for defamation can arise from errors.
Everyone involved in the publication is potentially liable and each, all, or some can be sued. This means that writers, publishers, editors, artists and gallery owners must all be aware of the potential dangers. This also means that it is no defence to argue that you are only repeating rumours or a comment made by somebody else: you can be liable for a republication.
The communication identifies the plaintiff
The plaintiff has to prove that the plaintiff was the person identified by the communication. This is obviously most straightforward when the plaintiff isactually named, but other information may be sufficient. Even the use of a false name may not save you if the plaintiff can be identified by other means.
There have been cases where identification has been accidental, for instance when the fictional name "Artemus Jones" happened to have a real-life equivalent.
A class of people cannot be defamed, but a statement denigrating a group may be defamatory of a member of that group. The plaintiff must show that the words would be understood to refer to that plaintiffin particular. If the group is reasonably large, it is less likely that this can be proven.
Generally, a dead person cannot be defamed, although a living relative may be if the communication defames them by association. Tasmania is the exception to the rule. There, the estate or a personal representative can bring a defamation claim on behalf of a deceased person.
In all States and Territories, companies and other organisations with a "legal personality" (eg. incorporated associations, trade unions, local councils) cannot sue for defamation. There are specific exceptions however, which allow some companies to sue, that depend on the nature of the company and the number of its employees. A corporation can still sue for defamation if:
1.it is a non-profit corporation and not a public body (such as a local government or public authority); or
2.it employs less than 10 people, is not related to another corporation and is not a public body.
In assessing the number of employees of a company, part time employees are to be taken into account as an appropriate fraction of a full time equivalent.
The communication defames them
The key issue in a defamation action is damage to a person's reputation. The test of whether a communication is defamatory is: "Does the communication lower/harm the plaintiff's reputation, hold the plaintiff up to ridicule, or lead others to shun and avoid the plaintiff?" This is judged from the viewpoint of "ordinary reasonable people in the community in general" and in light of contemporary standards.
The meaning that is argued over (the "imputation") might not be what you meant to say. The literal meaning of the communication is not the only meaning that is considered. The court looks at what it considers the ordinary reader or viewer could have understood the communication to mean. This may differ from what both the plaintiff and the defendant think.
The courts will expect the ordinary reader or viewer to engage in a "certain amount of loose thinking", to "read between the lines" and to be guided by the idea that "where there is smoke there is fire". Be careful if you are reporting "allegations" – the audience may presume that there is a factual basis to them.It is important to remember that the law uses the "ordinary reasonable reader/listener/viewer" – a hypothetical person – to test whether a publication is defamatory.
The plaintiff does not have to prove that the imputation is false, that it actually caused them harm, or that you meant it to cause harm. On the other hand, just because an imputation hurts or upsets a plaintiff, does not mean that it is defamatory. It must affect their reputation in a damaging way.
The limits are unclear in relation to humour, cartoons or satire. Words obviously intended only as a joke may be reasonably safe, but there may be a problem if there are underlying defamatory facts understood by the audience. You can publish photos or film of people in funny situations unless it makes the subject look ridiculous or the target of derision rather than good humour.
Context is important. A picture can become defamatory according to placement. A comment might not be defamatory when told to a limited audience, but may become defamatory when removed from its context and circulated more widely. In one case a plaintiff who told a small group of friends a self-deprecating story about being mistaken for a hangman was able to sue when a local newspaper published the story.
This can also work in favour of defendants. The plaintiff can't just take one imputation out of context as there may be an "antidote" to a defamatory imputation in other parts of the communication.
Defences
The first step when someone threatens you with defamation is to establish whether they actually have a case. The plaintiff must be able to prove all three elements discussed above – that the material has been communicated to a third person (other than the plaintiff), that the plaintiff is identified in the communication and that the communication defames them.
The next step is to consider whether you have a defence under the law of defamation. Defences include:
1.Honest opinion (previously known as fair comment)
2.Justification/Truth
3.Qualified privilege
4.Other defences
Honest opinion (Fair comment)
Previously referred to as the defence of fair comment, the defence of honest opinion requires you to prove that the material communicated was an expression of honest opinion rather than a statement of fact, on a matter of public interest and was based on proper material. To take advantage of this defence you have to be able to prove three things:
1.the communication must, on the face of it, be comment – that is: an opinion, criticism, deduction, judgment, remark, observation, or conclusion;
2.the facts upon which the opinion is based must be stated unless they are widely known. This is required so that the readers/viewers/listeners are able to form their own views on the facts. These facts have to be known to you when you make the communication. It is very important that the comment is clearly distinguishable from the facts upon which it is based; and
3.the communication has to be on a matter of public interest.
The opinion can be extreme, as long as it is honestly held by the communicator. This means that you have to be very careful in responding to an initial complaint. If you say that you "didn't mean it" this could subsequently make it very difficult to raise the defence of honest opinion.
The defence of honest opinion is obviously very relevant for reviewers and critics, but it can also be useful for satirists, comedians and other artists whose work incorporates an element of social commentary.
Justification/Truth
The new uniform legislation in the states provides the defence of justification. This is a complete defence if you can provide the material published was substantially true. This means that if an imputation is found to be defamatory, this defence requires the publisher to prove it to be true in substance or not materially different from the truth. This can be difficult as you can only use evidence that is admissible in court – this means that you will need original documents and/or witnesses who are credible and willing to testify in court.
Your sources have to have first hand knowledge of the relevant circumstances. The rules against "hearsay" evidence will prevent you putting forward witnesses who "heard something from somebody else".
The publisher may try to prove the plaintiff's imputations (say a and b) to be true. Or the publisher may say the publications also means c and d and they are defamatory and true in which case the plaintiff can fail because the unproved imputations a and b do not further injure the plaintiff's reputation. In some states (including New South Wales, Queensland and Tasmania) before the introduction of the uniform laws the defendant was required to establish that the material was published for the public benefit in addition to proving the published material was true. In contrast, under the new uniform laws truth alone constitutes the defence. A possible consequence of these changes is that the publication of private details of person's life will be allowed, provided they are truthfully portrayed, even though there might be no wider public interest in the receipt of those details.
Qualified privilege
The defence of "qualified privilege" applies when you have an interest or a legal, social or moral duty to communicate something to a person and that person has a corresponding interest or duty to receive the information. The link between you and the person you are communicating the material to is crucial to the defence.
Qualified privilege traditionally protects communications such as references given by employers or complaints to the police or other relevant authorities. The defence will fail if the plaintiff can show that you were actually motivated by malice to make the communication. This means that it can be dangerous to attempt to "get even" with someone by bad-mouthing them. If they choose to sue, you may find yourself without a defence.
This defence was originally designed for one-to-one communications. It is less likely to be successful when your communication is published to a wider audience because you have to demonstrate the corresponding interest or duty with each member of the audience. There are two important exceptions. Firstly, if you have been attacked publicly you are entitled to make a public response. Secondly, the High Court has recognised (in the case Lange v ABC) a corresponding duty and interest between members of the Australian community in publishing and receiving information about government and political matters.
In some instances the success of the defence will depend upon the "reasonableness" of the publisher's conduct in the circumstances surrounding the publication. Under the new uniform laws, additional guidance as to relevant factors going to the reasonableness of the publication have been provided. These factors include: (i) the nature of the business environment in which the defendant operates; (ii) the extent to which the matter distinguishes between suspicions, allegations and proven facts; and (iii) whether it is in the public interest for the matter to be published promptly.
Other defences
There are other defences, however they are less relevant to artists and a discussion of them is outside the scope of this information sheet. They include: the defence of triviality; protected reports of court and parliamentary proceedings; and the defence of innocent publication in relation to those such as newsagents (and possibly Internet service providers) who cannot reasonably be expected to be aware of the defamatory content of material they distribute.
Place of publication
A plaintiff may sue in any Australian State or Territory in which the communication was published to a third party. In the case of an article or comment on a website, this is any State or Territory in which a person browsing the web reads or downloads that article or comment. It doesn't matter for the purposes of defamation law where the website itself is hosted.
Limitation period
For material published after 1 January 2006, you must commence defamation proceedings within one year of the publication. The court has a discretion to extend this period for up to three years if the plaintiff can show that it was not reasonable to have commenced an action within the one year period. In practice a court will only extend the time period in unusual circumstances as this test is a difficult hurdle to overcome.
It is important to understand that time for commencing defamation proceedings is not calculated only from the first date of publication. Proceedings can be brought in respect of subsequent publications, such as on the internet. That is, material that is claimed to be defamatory may have multiple dates of publication. An English court determined that the sale of a single copy of a newspaper 17 years after the date of original publication was a sufficient basis for a defamation action. The High Court of Australia has also rejected arguments in favour of a ‘single publication’ rule in relation to publications on the internet (Dow Jones v Gutnick ([2002] HCA 56 [26]).
Before you publish
1.Consider the communication as a whole including any headlines or illustrations. Consider the context. Ask yourself – which groups or individuals have been identified? What imputations arise? Are they defamatory? Try to put yourself in the position of potential plaintiffs;
2.See if editing or clarification can remove any unintended defamatory imputations;
3.Check who is identified in the communication. Narrowing the scope of the article, or removing details that can lead to identification can avoid potential problems;
4.Consider the benefits of publishing against the risk of being sued for defamation;
5.What defences might be relevant? If it is meant to be comment, ensure that it is clearly identified as such (for example by adding "In myopinion…" and that the facts on which it is based are stated or obvious); and
6.If you want to argue that the defamatory imputations are true, how can they be proved? What has been done to verify their accuracy? Remember proof has to be to the stringent standards demanded by a court. Sources need to be first hand (what if they wish to remain confidential?).
If you're threatened with an action for defamation
1.Check whether they have a case by determining whether all the elements for defamation are there: defamatory meaning, identification, and publication. Remember that just because a communication is insulting, annoying, false or damaging to someone's business doesn't meant that it is necessarily defamatory.
2.Consider what, if any, defences are applicable to you.
3.Decide if you wish to apologise, correct, clarify, or retract. The new uniform defamation laws provide mechanisms and timing requirements for making an offer to make amends. An offer will not constitute an admission of fault or liability but may be taken into account in mitigation of damages if the plaintiff is successful in court.
4.Seek legal advice before responding. It is important to get legal advice promptly.
Further changes to defamation law in Australia
If you are printing out this information sheet for future reference please note that the Commonwealth Government have indicated that there should continue to be further reform to Australian defamation law and the introduction of uniform defamation legislation in the States is merely a platform for further reform. Please check the Arts Law website for new updates to this information sheet as legislative changes occur, or contact Arts Law for further information if you are unsure.
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Re: Re: Re: Re: Re: There's More Than One Way To Play This Game
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Unlimited liability for newpaper delivery boys?
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Re: Fcuk You Julian Asange Raspberry Rouge Criminal Puppet
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Wh
Wby doesn't Google behave with decency and responsibility by ensuring that appropriately worded general and specific disclaimers are prominently published and promptly in the case of someoneike Janice who has given notice?
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Dr Janice Duffy is criminal
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Wendy Cockcroft is fat and ugly
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Wa, wah, waaaaaaaahh! :-(
Wheras you, on the other hand, are a self-acknowledged expert on obesity and the lack of pleasurable surface features among humans, even apparently of those you've never even seen nor met. You should now (I'm assuming you're under seven years old) go ask your mother to explain what you did wrong and why it is a silly and mean thing to do (mostly because it makes you look like a fool, and most people try to avoid having anything to do with fools). If you're really good, she might even explain why it was also stupid, without just cutting her losses and strangling you to get it over with.
I do hope you get a chance to live to adulthood, but the prognosis is not good. Watch your back and get another hobby. I suggest either spending a lot of time in libraries or playing in traffic on the freeway, but not both. You likely also need a nap.
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Re: The court has a reasonable argument.
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wow just wow
lol wut is right, what is the world coming to, all this lady has done is spread the story of how crazy she is to the entire world
now when someone googles her name just like i did the entire twisted story is there to read in full
you need help lady and by help i mean professional help NOT A PSYCHIC
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