Kiwi takes on Google in defamation claim
A man's fight to have a defamatory post removed from an international website has been heard in the High Court in Auckland this morning.
The man's case is a first according to his lawyer, Matthew McClelland, who said "the liability of an Internet Service Provider (ISP) is still at large in New Zealand".
"It's a novel question."
He told the court the case focuses on three key questions.
What is Google New Zealand's responsibility, is Google a publisher and does the innocent dissemination of defamatory material defence apply?
The case hinges on a post that first appeared on an American "consumer advocacy" website in 2008.
It said 'A', who worked in the medical profession in New Zealand, had been caught in an indecent act.
It included his name, address, profession and contact information.
However, other than an alias including the word 'Kiwi', the site did not reveal anything about the person who wrote the post or how to get in contact.
McClelland said his client denied the claims made in the post.
When 'A's name was typed into a search engine such as Google or YahooXtra, the link and a snippet from the post appeared high up in the search results.
In 2010, when the post was having a negative impacting on his job, 'A' started writing to Google, YahooXtra and the American website asking for the defamatory post to be removed or blocked.
McClelland said YahooXtra and Google New Zealand both blocked the post but the American website said it never "took things down".
The post soon reappeared as a search result on Google.
This morning Associate Judge Abbott said the post was something of a chameleon but rather than changing its spots, it changed its URL.
The court heard that after 'A' contacted Google New Zealand again about the post, he was told to follow an online process that would block it from search results.
However it was something he had to do everyday which he found "re-traumatising" according to his lawyer.
'A' kept writing to Goggle New Zealand asking for the post to be removed and on several occasions it was.
However 'A' was also told that the New Zealand and Australian arms of the company had no control over the website and Google Inc did not take down defamatory search results.
He would have to work with the American website they said.
"[Yet] every time the plaintiff wrote to Google New Zealand the material was removed," McCelland said.
"So it's no good saying they have no ability to control things." McClelland argued that his client had the right to sue Google New Zealand for defamation because it knew about the post, had the ability to remove it - and had - and therefore was a publisher.
McClelland said the fact the post had been removed on several occasions illustrated the fact that Google New Zealand was "fixed with the knowledge of the defamatory material and acted on that knowledge".
He said his client had decided not to go after Google Inc due to the costs involved.
McClelland said that Google New Zealand had applied to have the matter struck out and responded by arguing that his client had sued the wrong company.
Google New Zealand told Fairfax Media it had filed a reverse summary judgement application.
The summary judgement hearing continues.