Just Google It!  What could possibly go wrong?

Google’s traditional response has been to stand back, accepting no responsibility for how others may use its search platform.  But two recent cases highlight that this approach may not wash with the courts.

Google Adwords – use and misuse

Through its Adwords service, Google offers businesses a subscription whereby the business’ website appears as an advertisement at the top of the page when a relevant Google search is made, giving the business enhanced exposure.

This service is, however, open to exploitation by those with an axe to grind.

Polczynski Robinson recently acted for a trustee in bankruptcy who found himself a victim to the misuse of the Adwords service by a disgruntled bankrupt.

The bankrupt created a website airing various grievances and making a series of allegations against his trustee.  To boost his audience, the bankrupt took out an Adwords subscription.  He linked the subscription so that a Google search of the trustee’s firm produced a link to his website at the top of the page.

Polczynski Robinson was engaged on an urgent basis to secure the removal of the Adword.

An urgent request to Google for the removal of the Adword went unanswered and an application was made to restrain the publication of the Adword.  Interim orders were made requiring the removal of the advertisement. 

Google subsequently conceded the Adword did not comply with its own policies and disabled it.

Google’s responsibility for Adwords

In a costs hearing, the Court considered the conduct of Google in respect of its non-response to the urgent request for the removal of the Adword and made it clear that Google could not be a passive by-stander in running its Adwords business.

Whilst Google may not be responsible for the content published on the bankrupt’s website, it did have a responsibility to have in place adequate procedures to prevent its Adwords service from being misused and to promptly address complaints regarding misuse.

The Court found that Google is not a passive third party in operating its Adwords business.  It obtains a commercial benefit from that business and cannot simply wash its hands of the potentially harmful consequences of its business operations.

The Court found that the procedures Google had in place to address concerns regarding its Adwords were inadequate and further responsibility needed to be taken to avoid harm arising from the misuse of the service.

Google search results

In a 2013 High Court decision, the Court found that Google was not engaged in misleading and deceptive conduct when its search results linked to misleading and deceptive material on sponsored websites as Google was not the maker, author, creator or originator of the information in those websites.

This decision did not, however, absolve Google of all responsibility in respect of its search results.

In a June 2018 decision, the High Court considered a claim made by Milorad ‘Michael’ Trkulja that two groups of Google search results were in themselves defamatory (irrespective of the content of the websites linked to the search results), namely:

1. images of Mr Trkulja which appeared in response to searches for terms such as “Melbourne criminals” and “Melbourne criminal underworld figure”; and

2. autocomplete predictions where a search for “Michael trk” resulted in suggested searches for phrases such as “Michael Trkulja criminal” and “Michael Trkulja Melbourne crime”.

Google applied to set aside Mr Trkulja’s claim on the basis that it was not a publisher for the purposes of defamation law and therefore could not be liable in defamation.  Google further argued that the search results were not defamatory.

The High Court rejected Google’s application, finding that:

1. it was strongly arguable that Google’s involvement in producing the allegedly defamatory search results meant that Google was a publisher of that material; and

2. the results associated with Mr Trkulja’s image and the autocomplete predictions were clearly capable of conveying defamatory imputations that Mr Trkulja was a hardened and serious criminal who associated with convicted criminals in the Melbourne criminal underworld, as searchers would be entitled to assume there was some connection between the terms of their search and the contents of the results displayed.

It is important to note that the High Court’s decision was only in relation to Google’s application to summarily dismiss Mr Trkulja’s claim and does not amount to any finding that the search results were, in fact, defamatory.  The decision does, however, highlight that Google should not consider itself immune from liability in respect of the use and operation of its search platform.

To find out more, contact Stephen Polczynski or Claire Latham on 02 9234 1500.