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Earlier this month the Supreme Court of Victoria ordered
internet search engine Yahoo! Inc to pay damages of A$225,000 to a
prominent member of the Australian Yugoslav community after a jury
found he had been defamed by an article appearing on a website
entitled "Melbourne Crime" (Article). The Article could
be viewed by anyone who accessed the Yahoo! 7 search engine and
searched the plaintiff's name.
As well as depicting images of well known criminals, the Article
showed the plaintiff's face, and commented that, among other
things, the plaintiff had been shot by a hit-man.
The jury found that the Article carried two imputations about
the plaintiff, including that he was so involved in Melbourne crime
that his rivals had hired a hit man to kill him.
In its defence, Yahoo! Inc admitted that subject to the
plaintiff establishing at the trial that any person had downloaded
and read the Article using the Yahoo! 7 internet search engine, it
admitted that it had published the Article to any such person.
Yahoo! Inc's position at trial was therefore in contrast to
its initial reaction to a letter from the plaintiff's
solicitors (before proceedings were commenced) in which the
plaintiff demanded that Yahoo! Inc remove all copies of the Article
from their search engine. At that stage, Yahoo! Inc denied
responsibility for the images in the Article "which, by being
linked through algorithmic search, appeared on the Yahoo! 7 search
engine", and suggested that the plaintiff contact the
operators of the "Melbourne Crime" website to have the
Article removed.
Justice Kaye of the Supreme Court found that the Article was
accessible through the Yahoo! 7 internet search engine for about 12
months before steps were taken to ensure that internet access to
the Article could not be obtained through the Yahoo! 7 search
facility.
At the trial, Yahoo! Inc argued that, among other things, the
Article did not carry the imputations for which the plaintiff
contended, and that the plaintiff had not been as aggrieved by the
Article as he in fact alleged.
Ultimately, a jury found that the plaintiff had been defamed,
and the Judge considered that, among other things, "the fact
that the material remained available through the defendant's
search engine for such a period of time, without being removed,
could only have served to increase the damage to the
plaintiff's reputation".
In awarding A$225,000 the Judge said that as he is obliged to do
by the Defamation Act (Vic), he took into account the fact
the plaintiff is also suing another entity, Google, in a separate
proceeding in relation to the same Article, however he accepted the
plaintiff's evidence that he first became aware of the Article
through the Yahoo! 7 search engine, which was the initial cause of
most of his distress. The Judge also considered the so called
"grapevine" effect, acknowledging that the Article
reached a wide audience resulting in widespread damage to the
plaintiff's reputation, particularly as the plaintiff was very
well known in the local Yugoslav community.
It remains to be seen whether Google will also admit that it
"published" the Article, however the case illustrates the
potential perils of internet publishing and the importance of
quickly investigating complaints made by people aggrieved by
publications accessible through your company's online
platforms.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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