Roland Bleyer alleged that Google Inc published seven items about him, three in the form of search results and others in relation to articles that those search results hyperlinked to. For instance, the first matter that Bleyer sued on said this:
“The State of California v Roland Frank Bleyer: Felony Complaint for…
… offshorealert.com/roland-bleyer-rold-husner-cocaine-arrest…
Felony Complaint for Arrest Warrant in The State of California v Roland Frank Bleyer, aka Roland Husner, at Beverly Hills Municipal Court, Los Angeles…”
The Defendant (again)
Bleyer pleaded that three people read the search results, two of which occurred before Google was notified of his claim that those search results were defamatory of him. He then pleaded the usual: “Further particulars will be provided after discovery and interrogatories.”
Google brought on an application to dismiss the proceedings or have them permanently stayed. It argued that:
- There was an obvious and substantial disproportion between the cost of the exercise and the conceivable vindication for the plaintiff, and accordingly, the Court should apply the proportionality principle applied in the UK;
- Google was not a publisher of the search results or alternatively had the defence of innocent dissemination; and
- A judgment in Mr Bleyer’s favour would be unenforceable in the USA.
Most of the argument at the application was on whether an English Court of Appeal decision, Jameel, where a defamation claim was stayed as an abuse of process, was applicable in the NSW Supreme Court. This was based largely on the fact that the plaintiff had pleaded that only three people had read the publications complained of.
The plaintiff argued that he might find that further people had read it, once discovery and interrogatories were completed. This was crucial, but this was rejected by Her Honour Justice Macallum.
Her Honour found that proportionality was an important aspect of justice and that the claim should be limited to what was pleaded by the plaintiff and not any speculation about who else might have read the results. Harsh. However, Her Honour did state that that it was open for a plaintiff to plead additional facts, matters and circumstances from which it could be inferred that there was broader publication, such as the popularity of the website, the public profile of the plaintiff and any other fact pointing to the conclusion that the web page would have been downloaded by a broader range of people.
As for the proportionality principle, Her Honour broke new ground in terms of Australian defamation law. She concluded that considerations of proportionality between the value or utility of the remedy sought and the resources required to prosecute its determination may in some instances warrant the conclusion that such a remedy should not be allowed to be pursued [39], [56].
Her Honour considered the NSW Civil Procedure Act and concluded that there would be cases where the disproportion is so vast as to warrant the stay or dismissal of proceedings [57], [62]. Although such cases would be rare, this was such a case. The factors Her Honour relied on were: the fact that 2 out of 3 publications were before Google was notified of their existence, and so Google had a complete defence to those (the defence of innocent dissemination), the fact that the case would involve complicated issues of law and fact and also that, if the plaintiff won, the judgment would not be enforceable in the USA.
In terms of whether Google was a publisher of the search results, Her Honour preferred English authority which held that it was not, at least prior to notification, as opposed to the rulings of His Honour Justice Beach in Trkulja in November 2012 [77]. Another win for Google. However, the UK Court of Appeal had concluded that the situation was different for circumstances where Google had been notified of the publication. Another argument for another day.
Overall, a harsh decision. How is a plaintiff supposed to know how many people read the search engine results? If the plaintiff were to attend a job interview, and searches were conducted of his name, no doubt that these search results would appear. So the decision makes things difficult for plaintiffs.
Clearly, this was a massive win for Google. No doubt that since Trkulja, when it was ordered to pay damages of $200,000 (and did pay it), Google Inc has changed its approach to litigation in Australia. Now it argues that , being an American entity, it need not pay any judgment. How this position sits with Google’s founders’ intentions of being a good corporate citizen is another matter…