A claim by two real estate agents against Google in the Supreme Court highlights the tricky position web publishers can find themselves in when Google re-publishes their content as search results.
And it raises the question of whether Google can be held legally responsible by the subject of defamatory remarks if it does not remove that content from search results – regardless of how the original publisher responds to a request to remove.
Paul Castran, managing director of the real estate firm Castran Gilbert, and the company's sales director Mark Forytarz have filed a defamation claim against Google, saying they have been defamed by allegations of improper or illegal behaviour.
The allegations are contained in two articles from consumer property advocate Neil Jenman's website, which could be seen when the agents' names were entered on internet search engine Google.
A Supreme Court statement of claim lodged in December said they sought action by Google to remove access to the articles, but it was not done.
The Age newspaper has reported that Matthew Stirling, for the company, said Google Inc, not Google Australia, operated the search engine. He said Google Australia did not have access to the data, and could not remove what was said to be the offending material.
Stirling said the plaintiffs had indicated legal action might not be necessary if the articles were removed.
Jenman has called on the two South Yarra real estate agents to sue him for defamation, rather than Google. "My (comment) is: 'Here's my chest. Come on, take a shot at me'," he told The Age.
Supreme Court Justice Stephen Kaye adjourned the hearing to 7 March and made orders adding Google's international company to the court action.
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