119 In July 2009, the plaintiff, in the proceedings, became aware that a search of
her name through Google resulted in the display of extracts, being defamatory
material. As a consequence, the plaintiff notified Google of the defamatory
material and requested Google to remove the material (or at least ensure that a
search through its search mechanisms did not locate the material).
120 The Court, in its reasons for judgment, discussed the principles that should
apply in the circumstances that were before it and some of the fundamental
first principles upon which it relied to reach that conclusion. By majority, the
Full Court dismissed the appeal, from the judgment at first instance, which had
held that Google was liable for the defamation associated with the extracts (or
summaries) of the primary website and subsequent websites that it published
in producing the search results.
121 While not relevant for present purposes, it should be noted that the websites to
which Google gave a link when Dr Duffy’s name was searched were
defamatory. The Court, both at first instance and on appeal, also found (or
confirmed) that the result of the search, itself, being the few lines that were said
to summarise the websites obtained by the search, were themselves, in part,
defamatory.
122 In the course of his dissenting judgment, Chief Justice Kourakis said at [89]:
“The participants in the publication may play primary or secondary roles.
Authors and editors are primary participants. The principal of an enterprise
which creates or procures and then disseminates words or images is a primary
participant in the process of publication and is commonly referred to as the
publisher. Historically printers have also been regarded as primary publishers
but that rule has been doubted in modern times. Both publishers and printers
are generally liable as primary participants even though they print and publish
the work through their servants and agents.”
123 And continued, in relation to that aspect, in the following way:
“In the broader sense, any facilitation of publication might be said to be
participation in it. However, there must be closer limits on the scope of liability
as a secondary participant. To draw an analogy with accessorial liability in
crime, it is notable that some participation may result in liability as an
accessory before the fact but not as a principal in either the first or second
degree. So too in the tort of defamation not all facilitation will result in liability,
even as a secondary participant, in the publication. Much depends on the
degree of causal connection between the facilitating act and the publication of
the material.” (Duffy, at [91])