A v Google New Zealand Ltd [2012] NZHC 2352

(1) Successful application by Google for defendant summary judgment; unsuccessful application for strike out by Google on basis Google was not a publisher; unsuccessful application for plaintiff summary judgment by A.  

(2) Case considered the responsibility of a search engine provider for the content of information on third party websites accessed from search results. When A's name was searched using www.google.co.nz, search results included reference to defamatory material, and a link to a third party website. A sought summary judgment on the basis that the information was clearly defamatory and that the defendant was aware of the search results. Google applied for summary judgment claiming that (i) its ultimate parent company (Google, Inc.) owned and operated the Google search engine and (ii) publication by a search engine provider of results of an enquiry did not amount to publication.  Court considered whether the defendant was a publisher of defamatory material. The test in Sadiq v Baycorp (NZ) Ltd for determining who was a publisher of defamatory material was applied (see below). The onus was on the defendant to provide enough evidence to satisfy the Court that the plaintiff's claim could not succeed.

(3) HELD:  The evidence supported that Google, Inc. owned and operated the Google search engine and domain name google.co.nz. The removal of references to offending webpages, following forwarding of correspondence by the defendant to Google, Inc., did not establish that the defendant had a legal ability to remove URLs from searches through the NZ domain name (applied Duffy v Google Inc 2011 SADC 178). Defendant was not liable for defamation because it had no relevant legal control over Google search engine results. The connection to Google, Inc. was not sufficient to meet the test in Sadiq. A did not have a reasonably arguable case, and it was otherwise a novel issue whether or not search engines were "publishers", therefore summary proceedings would have been inappropriate. It was unnecessary to consider the availability of defences in innocent dissemination and neutral reportage, application for strike out was dismissed on the grounds that this was a developing area of the law and it was arguable that the defendant was a publisher. Summary judgment awarded to Google against A.