133 It is necessary to deal with the analysis by Kourakis CJ of the judgment in the
UK in Tamiz v Google Inc [2012] EWHC 499 or, on appeal, in Tamiz v Google
Inc (2013) 1 WLR 2151; [2013] EWCA Civ 68, as this was a judgment that
concerned summary dismissal of the proceedings and whether there was an
arguable case that Google was a publisher. The trial judge had rejected
Google’s contention that it could only be a publisher if it had authorised or
accepted responsibility for the publication and Kourakis CJ confirmed the view
of the trial judge.
134 Chief Justice Kourakis also confirmed the view expressed by the trial judge
that:
“The appropriate test remains whether the defendant has participated in the
publication. I agree with the decisions to this effect of Morland J in Godfrey v
Demon Internet Ltd, Beach J in Trkulja v Google Inc LLC (No 5), the Hong
Kong Court of Final Appeal in Oriental Press Group Limited v Fevaworks
Solutions Ltd and (subject to the issue of actual v constructive knowledge) the
New Zealand Court of Appeal in Murray v Wishart. (Citations omitted.)”
135 The foregoing does not decide, as was the comment of Kourakis CJ, whether
Google was a primary or secondary participant in the publication. Nor, for
present purposes, does it matter, because Google was in a very different
position from that of the defendants in these proceedings.
136 However, it should be noted that Kourakis CJ concluded that Google is best
classified as a secondary participant, because its summaries are reproduced
from other publications and pages on the Internet: Duffy at [158] (upon which
finding his Honour was in dissent). Further, Kourakis CJ held that Google had
knowledge of the probable content of future search results, once a person
notified it of the existence of defamatory material in the results of a search
already produced and should be allowed a reasonable time to take down
references to the defamatory material, based on the public policy favouring the
dissemination of information generally: Duffy at [159].
137 It is important to understand the significant distinction between the production
of a Google search and the publication of comments on a public Facebook
page. As earlier stated, it is possible for a public Facebook page to be
produced that would not allow any comments.