Australian State Supreme Court Grants Individuals the Power to Censor the Internet
Australian Dr. Janice Duffy, was unhappy with the services of psychics offered by the website Kasamba and expressed her dissatisfaction through posts under various alias on RipOffReport.com (“ROR”). The psychics responded in kind, with ROR posts accusing Duffy of stalking and harassing psychics.
Duffy complained to Google about displaying extracts from and hyperlinks to the ROR posts and for its autocomplete suggestion of “Janice Duffy Psychic Stalker” for searching her name. When Google failed to take action, she sued Google in Australian court. In the United States, such a claim would be dismissed since Google would have no liability as an intermediary under Section 230 of the Communications Decency Act.
In a landmark and lengthy ruling, however, the Supreme Court for the State of South Australia gave a victory to the self-represented Duffy, holding that Google may be held liable as a secondary publisher of the content.
The mere fact that the paragraphs were generated automatically by Google’s software programs does not prevent Google being a publisher of them after notification by Dr Duffy. If Google personnel were made aware of the existence of the paragraphs generated by Google’s own software programs and failed to remove them, their continuing existence thereafter was the direct result of human action or inaction rather than merely the result of machine operation.
The case now proceeds to trial and a likely appeal. The ruling has been widely criticized for creating a unilateral right to censor, much like the European Court of Justice’s creation of the “Right to be Forgotten”, as one need only send a notice that content is defamatory to force a search engine to remove the content. There is also concern about the impact on free speech should the result serve to encourage search providers to play a gatekeeper role to determine what is and is not acceptable content.
Commentators have also noted that this is yet another example of the Streisand Effect, since the once relatively unknown Duffy is now being discussed worldwide in the context of psychic stalking. Duffy counters that she faced a Hobson’s choice and is proud that she stood up to ROR.