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Australian Court: Google Liable as Secondary Publisher in Internet Defamation Case

 Vorys, Sater, Seymour and Pease LLP Internet Defamation Attorneys
Australian Court: Google Liable as Secondary Publisher in Internet Defamation Case
Then, some of the psychics retaliated with the allegedly false defamatory remarks about Duffy. As many people and businesses are aware of today, Ripoff Report postings (which the website will not remove) tend to rank highly in Google search results.

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Google responsible for linking to websites containing defamatory content

Google responsible for linking to defamatory websites

The South Australian Supreme Court this week found that Google is legally responsible when its search results link to defamatory content on the web.

In this long-running case, Dr Janice Duffy has been trying for more than six years to clear her name and remove links to defamatory material when people search for her using Google.

The main culprit is the US based website Ripoff Reports, where people have posted negative reviews of Dr Duffy. Under United States law, defamation is very hard to prove, and US websites are not liable for comments made by their users.

Since it was not possible to get harmful or abusive comments removed from the source, Dr Duffy instead asked Google to remove the links from its search results. Google removed some of these links, but only from its Australian domain (google.com.au), and it left many of them active.

This latest court decision is a big win for Dr Duffy. The court found that once Google was alerted to the defamatory material, it was then under an obligation to act to censor its search results and prevent further harm to Dr Duffy’s reputation.

This case is not yet over. It now goes back to court on on November 3 to establish damages that Google may be ordered to pay. Google may also choose to appeal to the High Court.
Jurisdictional uncertainty

This case highlights a complex jurisdiction problem: this case was against Google Inc, a US company, not Google Australia. Dr Duffy lost a case against Google Australia several years ago, because the court found that the search giant’s Australian arm had no effective control over search results.

Essentially, transnational corporations like Google are able to structure their operations to benefit from US law, which provides them with much greater protection. Google’s Australian arm handles support and sales, but does not operate the search engine itself.

In the United States, the First Amendment protects publishers, unless the plaintiff can show that the publisher deliberately acted maliciously.

Search engines, website hosts, social networks and other internet operators have an additional layer of protection in the US under Section 230 of the Communications Decency Act. This means that they are immune from lawsuits over content that is posted by third parties.

What this means is that foreign corporations can often ignore Australian judgements. It is practically impossible to enforce an Australian award for damages or an order that the search engine remove the content in US courts.

It also means that Australian technology companies are disadvantaged compared to foreign operators. The uncertainty and risks of our law mean that many companies are unable to operate in Australia, which is a real loss to Australian innovation and to local consumers.
Liability for linking

Australian courts face a difficult question when interpreting defamation law. The law is still unclear about when someone can be held responsible for the actions of an unrelated third party. This is only the latest in a series of cases against Google and others — and courts have come to conflicting decisions.

Defamation law protects the reputation of individuals. It is unlawful to publish false information that causes others to think less of another person. Historically, defamation law applies to everyone involved in publication — from journalists, to editors, publishers and even newsagents.

In the digital age, the boundaries of liability are very uncertain. Google has argued that it should not be treated as a “publisher” just because it indexes websites created by others. Google also argued that it should not be responsible for search results produced automatically by its search algorithms.

But the court here found that Google was liable for just linking to defamatory content. In this case, Google has no control over what people post on the Ripoff Report but it does help people find and access those comments.

Australians deserve to be protected by the law; it is dangerous to enable US law to dictate our standards. This threat of American legal hegemony is what worried the High Court so much in the 2002 Dow Jones v Gutnick case.

At the same time, it is dangerous to require private companies to decide what content is lawful and what content must be removed.

The trade-offs here are extremely difficult. On the one hand, where search engines and other intermediaries are not held to account, people are exposed to real harm by the continued availability of abusive and defamatory content.

On the other hand, holding these private companies responsible, particularly if they are forced to pay damages, means that they will often either leave the country or limit their risks by removing speech that may not actually be unlawful.
A faster, more legitimate process

Internet intermediaries like Google, Facebook and others clearly have some role to play in preventing the distribution of harmful abuse and defamatory material on their networks. But the law must also be sensitive to the real dangers of holding these companies liable.

More than anything, this case shows that we need better, more legitimate mechanisms for addressing complaints about harmful material online.

Ultimately, it’s likely that we need some compromise here — new procedures that do not take six years and millions of dollars in court costs to protect people’s rights, but that are able to efficiently, transparently and legitimately investigate complaints.

http://www.smh.com.au/technology/technology-news/google-responsible-for-linking-to-defamatory-websites-australian-court-20151101-gko9l8.htmlRead the rest

Google Could Be Forced to Delete Links and Sensitive information

On May 13, the European Union’s highest court struck what appeared to be a significant blow for privacy, ruling that Google could be forced to delete links and other sensitive information about a user upon his or her request. In an age of rampant identity theft and data breaches, as well as more sinister, personal examples of private data going public such as revenge porn, this was a win worth celebrating. And it has many questioning if such a law could ever pass in the United States.

The short answer: No. “The publication of truthful fact, in a public forum, is robustly protected by the first amendment,” says Lee Rowland, a staff attorney with the ACLU’s Speech, Privacy and Technology Project. From a strictly legal perspective, the EU’s “right to be forgotten” decision would be a clear violation of the constitutional right to free speech. “The first amendment protects speech that is a matter of public concern. It’s not only the right to speak about it but also to hear about it,” Rowland explains.

Consider, for example, the details of the case that triggered the EU’s unappealable decision.

A Spanish attorney failed to pay his taxes and had to sell off property in a public auction. A newspaper ran the details of said auction, as newspapers do. That information made its standard way to the Internet, and Google did what Google does, supplying linked search results to it.

There was nothing illegal about the newspaper’s publication of the auction results. And as personally embarrassing as those details may have been to the attorney, Rowland believes the public has a right to know that a practicing lawyer is a confirmed tax cheat. “Imagine if there were a plastic surgeon with a legal history of doing terrible things to people’s faces,” Rowland says. “Wouldn’t you as a consumer want to be able to find evidence of those lawsuits?”

Then again, most of the people championing the EU decision aren’t disgraced lawyers hoping to scrub their own sins from the Internet. The positive response has to do with shifting the balance of power online and issuing takedown orders to companies—like Google—that collect and disseminate our private information without permission. Blunt and unconstitutional as it might be, an equivalent U.S. ruling or law could also cripple revenge porn sites, forcing them to remove nude photos and images at an individual’s request, without discussion or delay.

It’s a solution that even dedicated anti-revenge porn groups don’t want. “It’s about the expectation of privacy,” says Danielle Citron, a law professor at the University of Maryland and board member of the Cyber Civil Rights Initiative (CCRI).

The EU ruling punishes Google for indexing publicly available information, which could be of enormous value to the Spanish attorney’s current or prospective clients. That attorney has not only relinquished his expectation of privacy, but there’s good reason (arguably) for the public to have access to what the newspaper lawfully published. And while the EU has no equivalent of the first amendment, U.S. law almost always tilts in favor of free speech as a founding bulwark against entrenched, institutional corruption.

In the case of revenge porn, however, “there’s no free speech interest in publishing nude photos,” Citron says. “If someone shares nude images or permits them to be taken, when those are released, the wrong is the intentional violation of that confidentiality, not the search engine’s reproduction of it.”

The real solution, according to Citron, is to enforce laws that are already in place—in many revenge porn cases, photos are actually obtained through hacking the victim’s phone or computer—as well to pass extremely narrow legislation that specifically targets individual privacy breaches while also giving the first amendment a wide berth. The CCRI helped draft an anti-revenge porn bill in Maryland (which was unanimously approved by the Maryland’s House of Delegates this past March and is currently with the state’s senate) that more clearly defines the illegal activity and corresponding penalties. “That law would punish a very narrow set of privacy violations that have a profound impact on victims lives,” Citron says.

RELATED: Revenge Porn King Hunter Moore Finally Arrested

Yet she also believes that the new law falls short by not including a provision that would allow for the takedown of a victim’s photos and videos beyond the offender’s site. So even if those files vanish in one place, they could live on throughout the Internet.

Unrelated to revenge porn, Citron would also support regulations or legislation that allow users to demand that data brokers—the companies that track our activity online and resell that data to advertisers and other third parties—delete that collected information, on the grounds that it’s not public or of public interest.

If those sound suspiciously like requests for some version of the EU ruling—with its expansive demands for link deletion—welcome to the complex, circuitous world of digital privacy. But the key issue is, once again, the expectation of privacy. Nude photos and online spending habits are private. Proof that a lawyer was found guilty of breaking the law is not. Unlike the right to free speech, which is relatively easy to define and quite literally the first concern of the U.S. Constitution, the right to privacy is a necessarily complicated concept defined by context and exceptions. And while the two rights can come into direct conflict, freedom of speech tends to bolster privacy, allowing news outlets to cover the NSA’s more nefarious spying activities, for example.

Neither the CCRI nor the ACLU are claiming that stateside privacy laws are perfect. Citron is pushing for an update to the federal cyberstalking law that would demand a takedown of specific victim-related data if the offender is found guilty (a topic addressed at length in her book, Hate 3.0: A Civil Rights Agenda to Combat Discriminatory Online Harassment, due out this August). And Rowland is concerned about privacy violations that lead back to the government, including the public release of mugshots, even for individuals who were booked but never convicted.… Read the rest

Copyright for Publishers

Copyright for Publishers

Publishing in today’s environment means working within a variety of models. These models may entail the use of original content and may use republished, repurposed, adapted and recycled content. What does this mean in terms of copyright law? Since content is a key common denominator across models, publishers need to understand how copyright law protects that content. Key copyright issues include the nature of protected content; ownership of content; how that content is legally protected and what rights protect it; how to license and assignment content in order to monetize it and monitoring unauthorized uses of content. Proper copyright knowledge will ensure that you have maximum protection in the one constant in your various publishing models.

Three important copyright issues for publishers are:

  • ownership of content
  • using third party content
  • protecting publications

The issues affect both print and electronic publishers of all sorts of content.

Copyright Ownership

In copyright, the ownership rule seems straightforward: an author is the first owner of copyright in her work. However, in an employment situation, the employer owns the copyright in her employee’s work. A consultant on the other hand owns the copyright in her writings unless there is a written agreement stating otherwise. Written agreements can change the ownership of copyright materials; licenses can provide permission to use materials that you do not own.

Third Party Content

Third party content is content in which you do not own the rights. Some typical examples of third party works included in publications are: images, diagrams, tables, charts, and photographs. When using third party content, it is always best to begin with the presumption that the content is protected by copyright. Online content and images found through search engines like Google Images are often protected by copyright.

Protecting Publications

Using a copyright symbol and including copyright information (plus a link to obtain permission to use your online publications) is one of the simplest ways to start protecting your content. Watermarking, digital rights management, and license agreements may all be helpful as well.

More info at Member profile: Harris has the answers on copyright laws

See Copyright for Publishers session at SIPA on 5 June 2013

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