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36. The very recent decision of Mansfield J in the Federal Court matter of Rana v
Google Australia Pty Ltd, Darda Gregurev, Nina Gregurev and Google Inc 35 is
an example that the law on publication and the defences is still in a state of
development. The New Zealand Case of A v Google New Zealand Ltd 36
considered that in order to be held liable as a publisher of defamatory material it
must be the case that the defendant “could have prevented the continued
publication of the material” or had the ability to bring about the cessation of
that material. The NZ court found that because of Google New Zealand being a
subsidiary of Google Inc the named defendant did not have the power to prevent
or bring about the cessation of the publication of the relevant material. A
similar decision was reached in Tamiz v Google Inc and Google UK Ltd 37 .
37. Following the reasons in the NZ and UK cases cited Mansfield J held that, on
the facts before him in the Rana Case, Mr Rana had no reasonable prospect of
success and dismissed the action against Google Australia.
Mansfield J
considered the differing approaches taken in Tamiz and Trkulja v Google Inc
LLC (No 5) and decided that as the law was not yet settled he would not, on that
basis, refuse to give leave to serve the proceedings on Google Inc which would
have had the effect of effectively dismissing that claim. His Honour gave Mr
Rana 28 days to file and serve a Further Amended Statement of Claim so that
the question of granting leave for overseas service might be considered in light
of the fresh pleadings.
38. The differing views expressed in Tamiz and Trkulja are important. Eady J in
Tamiz used the analogy of a graffitied wall and queried whether the owner of a
35 [2013] FCA 60 – judgment handed down 7 February 2013
36 [2012] NZHC 2352, cited in Rana at para 38 of that judgment
37 [2012] EWHC 449 (QB), cited in Rana at para 39 of that judgment
Gary Hevey
Gordon & Jackson
9225 8075 9225 7333