V v Google LLC [2019] NZHC 488 (19 March 2019)

Last Updated: 28 May 2019

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-485-114 [2019] NZHC 488

IN THE MATTER	of the Harmful Digital Communications Act 2015
BETWEEN	V Appellant
AND	GOOGLE LLC Respondent

Hearing:	22 February 2019
Appearances:	Appellant in Person J S Baigent for Respondent
Judgment:	19 March 2019
Reissued:	22 March 2019

JUDGMENT OF CLARK J

[1] The Harmful Digital Communications Act 2015 (the Act) has the dual purpose of:¹

(a) deterring, preventing and mitigating harm caused to individuals by digital communications; and

(b) providing victims of harmful digital communications with a quick and efficient means of redress.

¹ Harmful Digital Communications Act 2015, s 3.

V v GOOGLE LLC [2019] NZHC 488 [19 March 2019]

[2] The appellant, V, claimed she was harmed by a campaign of verbal and electronic abuse and applied to the District Court for a range of orders under s 19 of the Act. Judge Doherty dismissed the application. He was not satisfied there had been a breach of a communication principle nor that there had been harm to V.²

[3] V appeals Judge Doherty’s decision. I have concluded V’s appeal is to be dismissed for reasons which I provide in the remainder of this judgment.

Background

[4] As did Judge Doherty,³ I set the scene by reference to the affidavit evidence V gave in support of her January 2017 application for orders under the Act. In the section of the application form that asks why a harmful digital communications order is needed, V provided the following information:

The particular instance of the ICQ profile, the subject of this ORB complaint, should be viewed in the context of when it was made live. It was first made live in 2015 in conjunction with a faked pornography website and face-to-face harassment and verbal abuse (whore, to be precise) by a New Zealander, Bradley William Cato, as well as an attempt to try to place me in a workplace that he chose (for whom I do not know). This, in connection to the 2010 scant run in I had whilst untrained with the Seoul based Russian political reporter, that I had immediately made others aware of but by our end it was mishandled and continues to be (what I mean by this is that when, for example our defence attache attends the monthly functions in Seoul he did not receive faked porn websites after doing what is correct with regard to the encounter, nor did SIS briefed business [persons] visiting North Korea (relayed to me in anecdote by one briefed person, why should I be treated with such obvious disregard and contempt?)

[5] An individual who alleges harm as a result of a digital communication may not apply for an order under ss 18 or 19 of the Act unless an “Approved Agency” under the Act has first received a complaint and had an opportunity to assess the complaint and decide what (if any) action to take.⁴

[6] Netsafe is an approved agency under the Act. V’s application was assessed by Netsafe. Following its assessment of V’s complaint, Netsafe wrote to the Deputy Registrar, Hutt Valley District Court on 9 February 2017 advising:

² V v Google [2017] NZDC 3244.

³ At [12].

⁴ Harmful Digital Communications Act 2015, ss 11(1) and 12(1).

(a) Netsafe had determined no further action was to be undertaken.

(b) V had reported the concerning post to ICQ which had declined to remove the post.⁵ V’s name appeared with no further content.

(c) Netsafe had determined there had been no serious breach of a communication principle nor any serious emotional stress.⁶

(d) V had been advised she had the right to apply to the District Court for that Court’s independent assessment and ruling.

[7] On 20 February 2017 Judge Doherty proceeded to determine V’s application for orders under s 19 of the Act. Following Judge Doherty’s dismissal of the application, V filed a notice of appeal in the High Court.⁷

Decision under appeal

[8] Judge Doherty set out the orders for which V applied under s 19 of the Act. He referred to Netsafe’s assessment and determination of the complaint.⁸

[9] The Judge set the scene by reference to that passage of V’s evidence included above at [4] then turned to V’s description of the harm which she deposed to having suffered:⁹

I differ from Netsafe’s conclusion that this matter is simply emotionally distressing. Viewed in conjunction with the consistent attempts by a series of New Zealanders to try to manipulate me the abuse detailed here forms a

5. At one stage ICQ was named as a second respondent to this appeal. V decided to continue the appeal “in the absence of ICQ” and filed a memorandum on 13 October 2018 advising the Court of that decision.

⁶ References to the threshold for orders by a District Court under s 12(2) of the Act.

7. I need to say a word about the two-year interval between the filing of the appeal on 27 February 2017 and the hearing of the appeal approximately two years later. In April 2017, V was advised that, before a case management conference could take place, she was required to serve her notice of appeal on the respondent, Google LLC (Google). It seems from the court file that V may have taken a different view. In any event, throughout 2018 successive Judges, before whom the appeal was placed for case management purposes, required satisfaction of the service requirement. Google was eventually served. Consent timetable orders were made in October 2018 pursuant to which the matter was to be listed for hearing following receipt of V’s submissions in December 2018.

⁸ V v Google, above n 2, at [3]; and set out above at [6].

⁹ At [8].

portion of not only grossly dysfunctional tokenism but racism, sexism and harassment.

...

I am disturbed by these actions and feel it sends the wrong message overall to anyone encountering the Russian political researcher or any other because I have only been punished for doing what is right, as well as ultimately alienating someone who did nothing wrong but point out that this matter and what was behind it should have been handled better.

[10] While it was not an exhibit to her affidavit Judge Doherty considered also a document which V had prepared and provided with her application and affidavit. It is headed “Police Statement [V]” and described the history of V’s interaction with website hosts.

[11] Ultimately, Judge Doherty found the application and affidavit in support lacked detail. The content of the website which V objected to was not “clear exactly” to the Judge. His Honour observed:¹⁰

There might be a breach of communication principle three (in that they are derogatory and offensive in tone and used to denigrate the plaintiff to be grossly offensive to a reasonable person in the position of the affected individual) but the evidence does not satisfy me of that.

[12] Judge Doherty concluded V had not reached the threshold of satisfying him that even if there was a breach of a communication principle, that breach had caused or was likely to cause her harm. The evidence showed V seemed “annoyed and perhaps frustrated at the lack of action by the website hosts” but that fell well short of crossing the threshold of serious emotional distress. Judge Doherty:¹¹

(a) accepted V was an affected individual for the purposes of s 11(1)(a) of the Act;¹²

(b) was not satisfied there had been a breach of a communication principle; and

¹⁰ At [10].

¹¹ At [12].

12. Individuals who allege they have been or will suffer harm as a result of a digital communication are “affected individuals” under the Act and may apply for orders under ss 18 or 19.
    • (c) was not satisfied there had been harm (serious emotional distress) to V.

V’s notices of appeal

Appellant

[13] V has filed two appeal documents. The first was filed on 27 February 2017. Its several grounds of appeal can be summarised:

(a) Judge Doherty erroneously stated Netsafe reported there was no serious breach of a communication principle.

(b) Netsafe does not have sufficient information to be able to make a judgment as to whether V has been harmed.

(c) The Judge could not make a fair decision about harm solely on the papers. In this regard V alludes to death threats and that she must abide by a security manual referring to the former Yugoslavia and Germany.

(d) V explained to the District Court Judge that she had been harassed and manipulated and received a request to live with Macedonians and that suffering twenty years of harassment pertaining to this does constitute harm and has left her and others in an adverse position.

(e) There have been breaches of communication principles 1, 2, 3, 6, 8 and 10.

[14] The remainder of the seven-page document filed on 27 February 2017 refers to the evidence in previous court papers of online harassment, including pornography, plagiarism and phishing. V lists the following files all prefixed ORB and available from Netsafe:

580ea70d12732

580ea931962ba 5802cdc312a3a 575e899d6e33b 5760af0ea0b5f 56e7afaf32748 56760d90c41e4

5671d3a09015

566fof0e02b30 5692592f3e8b

564ce3c713dd9 55f0deb4c652f

[15] The February 2017 notice of appeal seeks the following orders pursuant to s 19 of the Act:

...against a) Google, b) ICQ (USA or any office), c) Any New Zealander/s involved and d) any other persons found to be involved through the assignment of a technical adviser to establish their identity to:

1. Desist posting to any website in this manner;
2. Not encourage others to do so; and
3. Publish an apology in a way the court deems appropriate. Together with orders against Google and ICQ to:
   1. Take down material;
   2. Divulge to the court the identify of any persons directly or indirectly of any persons/groups who made certain postings;
   3. Publish a correction in a way the court deems appropriate; and
   4. Identify an anonymous phisher/communicator

[16] A further Notice of Appeal dated 18 April 2017 applies for orders under s 19 of the Act against Google and ICQ (USA or any office) to:

1. Desist posting to any website in this manner;
2. Not encourage others to do so; and
3. Publish an apology in a way the court deems appropriate.

Together with orders against Google and ICQ to:

1. Take down material listed on their websites relating any of the Netsafe reports (prefixed ORB)

580ea70d12732

580ea931962ba 5802cdc312a3a 575e899d6e33b 5760af0ea0b5f 56e7afaf32748 56760d90c41e4

5671d3a09015

566fof0e02b30 5692592f3e8b

564ce3c713dd9 55f0deb4c652f

2. Further, both Google and ICQ may refer to multiple reports made via the Lumen database (https://lumendatabase.org/notices/search?utf8=%E2%9C593&term=[v] &sort_by=)
3. Google can also refer to requests to take down material in my own name Google account or within correspondence.
4. Divulge to the court the identity of any persons directly or indirectly of any persons/groups who made certain postings/listings;
5. Publish a correction in a way the court deems appropriate; and
6. Identify an anonymous phisher/communicator to the court.

Parties’ respective stances on appeal

Appellant

[17] In oral argument V acknowledged the website www.[v’s name].com with its objectionable content has been taken down but she believes the fact it was up for a year has had an impact on her.

[18] I asked V which part of the District Court Judge’s decision she regarded as wrong. V said there are two principal errors: the Judge’s finding that there was no impact on her when indeed there had been torment from New Zealanders who think they can manipulate others, and she had suffered financial harm. The second point V made was that the “ease with which this could have been taken care of is noteworthy”. V referred also to the length of time this has taken her “when it could have been nipped in the bud”.

Respondent

[19] Google opposes the making of any orders against it on the basis that:

(a) Google is not an “online content host” or “internet protocol address provider” for the purposes of the relief sought under s 19 of the Act in relation to the content at issue;

(b) Google would be unable to comply with the orders sought;

(c) Google reserves its position as to the applicability of the Act to it as an overseas company, but notes it has an ongoing voluntary relationship with Netsafe being the “approved agency” under the Act;

(d) The Court has no jurisdiction to make the orders sought against Google, and the appeal should be dismissed.

Discussion

[20] Ms Baigent, counsel for Google filed written submissions focusing principally on the reasons why Google is unable to comply with the orders which V seeks. Google’s primary opposition to the proceeding, and the appeal, is a jurisdictional protest but Ms Baigent nevertheless addressed the merits of the appeal in her oral argument. While Google has expressly reserved its position as to the extraterritorial reach of the Act, I have not found it necessary to decide that point for the purpose of this appeal. If the point was decisive one way or the other it would have been necessary to hear full argument and, of course, V is not legally represented and could not have been expected to present legal submissions on the extraterritorial effect of the Act.

[21] Before moving on from the point, however, I wish to record the Court’s appreciation of the respondent’s approach to the appeal. A detailed affidavit has been sworn by William Jon Nentl from California. Mr Nentl is employed by Google as a manager in the Trust & Safety team for the Google search engine. In his affidavit Mr Nentl describes the structure of the World Wide Web and the Google search engine. Mr Nentl also elaborates Google’s protest to jurisdiction and the application of the Act to Google, an entity incorporated in the state of Delaware. Google New Zealand Ltd, a subsidiary, is a separate legal entity incorporated in New Zealand and has no control over, nor involvement in, the operation of the Google search engine. Mr Nentl also explains why Google is unable to comply with the orders which V seeks.

[22] As Ms Baigent submitted, Google has attempted to work with NetSafe and instructed lawyers in New Zealand to attempt to address V’s issues in a cooperative manner rather than simply relying on a jurisdictional protest as the only ground of opposition to the appeal.

[23] The first fact bearing on the merits of the appeal is V’s confirmation at a conference before Thomas J on 8 October 2018 that the offending material no longer exists.¹³ Mr Nentl’s evidence confirms this. V seeks various orders in relation to:

¹³ V v Google LLC (Minute of Thomas J dated 9 October 2018).

(a) an ICQ profile: https://icq.com/people/62218292;

(b) the website www.[v’s name].com; and

(c) various other “postings”.

[24] Mr Nentl’s evidence is that the uniform resource locator of the profile and website about which V complains do not lead to any content.

[25] As to the various other “postings” V has provided no URLs and so Mr Nentl is unable to identify them.

[26] As there is no content remaining on the web the only available remedy pursued against Google is an order that Google identify the authors of the content/web pages to which V objected.

[27] During the course of the hearing V confirmed she seeks identification of those responsible for creating and posting the objectionable material in the first place. I asked V who might be able to assist, as Google can not. V suggested, the Government Communications Security Bureau.

[28] The orders which V would have the Court make are unable to be made.

[29] Under s 19(2) of the Act the District Court may make one or more of the following orders against an online content host:

(a) an order to take down or disable public access to material that has been posted or sent:

(b) an order that the identity of the author of an anonymous or pseudo anonymous communication be released to the Court:

(c) an order that a correction be published in any manner that the Court specifies in the order:

(d) an order that a right of reply be given to the affected individual in any manner that the court specifies in the order.
[30] An “online content host” in relation to a digital communication means —¹⁴

... the person who has control over the part of the electronic retrieval system, such as a website or an online application, on which the communication is posted and accessible by the user.

[31] Google does not come within the definition of “online content host”. Mr Nentl explained why that is so. Google provides its users with a tool for searching the trillions of documents on the Web. Those trillions of documents are generated by millions of people and organisations. In addition to Google other search engines, such as Bing and Yahoo, are available to users. A search engine is an automated information retrieval system designed to allow a user to navigate the information on the Web by the use of user-specific queries. Search terms are entered and in response to the user’s request for a search, the Google search engine compiles a list of results, ranks the results and presents the results to the user in an order determined by the computer’s algorithm.

[32] Mr Nentl described the processes used by the Google search engine as broadly divided into three stages:

(a) crawling the Web to gather information about web pages;

(b) indexing the web pages found from crawling; and

(c) ranking and returning the results to the user in response to the search query.

[33] All stages are performed automatically without human involvement (beyond the designing and writing of the algorithms and computer programmes which, necessarily, take place before the above three stages).

[34] Each web page has what is termed a unique Uniform Resource Locater (URL). The URL is the address for that web page so that, for example, the URL of the Ministry of Justice website is “http://www.justice.govt.nz”. That URL is the top-level web page

¹⁴ Harmful Digital Communications Act, s 4 Interpretation section.

for that website but each page of the site again has its own unique URL, for example http://www.justice.govt.nz/courts.

[35] While the Web grows over time, at what Mr Nentl described as “an incredible rate,” content also disappears as websites are no longer maintained. The point to be emphasised is that a search engine is not the Web itself but merely a way of locating material on the Web. The companies who make the search engines available to users have no ability to control or limit what is on the Web. Those companies do not provide the content on the Web. Thus the Google search engine does not control the websites and web pages accessible on the Web and nor does it have the ability to control the removal of content on those third party websites.

[36] Accordingly, the Google search engine is not an “online content host” and Google is unable to remove content from third party web pages nor remove a third party page or a website from the Web.

[37] Even if Google were to remove a particular URL from Google search results, the content located at that URL continues to be assessible by, for example, typing the URL directly into the browser rather than using a search engine. Removing a link to a web page brought up in search results does not remove the page from the Web but only prevents it from being shown in search results.

[38] For this reason, Google encourages users to contact the person maintaining the particular web page if the user wishes to have content removed from the page or have the website itself removed.

[39] Mr Nentl also explained why the Google search engine is not an “Internet Protocol Address Provider” (IPAP). Section 19(3) permits the District Court to order, in respect of an IPAP, that the identity of an anonymous communicator be released to the court.

[40] Under the Act an IPAP has the same meaning as in s 122A(1) of the Copyright Act 1994. An IPAP means —

... a person that operates a business that, other than as an incidental feature of its main business activities, —

(a) offers the transmission, routing, and providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing; and

(b) allocates IP addresses to its account holders; and

(c) charges its account holders for its services; and

(d) is not primarily operated to cater for transient users

[41] The Google search engine does not fall within this definition. Mr Nentl’s evidence is that the Google search engine does not offer the transmission, routing, and providing of connections for digital online communications, between or among points specified by a user.

[42] Ms Baigent also referred me to Dr David Harvey’s discussion of online content hosts in Internet.law.nz.¹⁵ Discussing online content hosts, Dr Harvey cites Twitter and Facebook as examples of IPAPs who provide web hosting services for a client or perhaps an organisation that has developed a protocol or application that allows individuals to post content. Then Dr Harvey posed the question: “What about Google?”

Google owns a number of different Internet operations ... However, it is doubtful that the search facility offered by Google would qualify as an online content host, simply because it does not provide a service on which the communication is posted. It only indexes and links to other content.

[43] In summary, for the following reasons, Google is unable to comply with any of the orders available to be made under s 19(2) or 19(3) or with an order to identify the author responsible for the digital communication of which she complains.

(a) The content has been removed.

(b) Google does not control and has never controlled the web pages at the URLs provided by V. Nor is Google able to identify the authors of the pages:

¹⁵ David Harvey Internet.law.nz (4th ed, LexisNexis, Wellington, 2015) at [4.221].

(i) The website icq.com is apparently operated by a large third party organisation named Mail.RUgroup, an independent, well- established company whose details are available on the Web and who V is able to contact without the assistance of Google.

(ii) Google has been unable to identify the author of the web page www.[v’s name].com.

(c) Google has no ability to identify individuals who post messages or other content on third party web pages.

(d) Google often voluntarily removes specific content from Google search results, to the extent the results are clearly identifiable, upon service of a valid court order against the author or webmaster of the underlying content. But any such order would need to be accompanied by an identification of the content by reference to a specific URL.

Result

[44] The appeal is dismissed.


Karen Clark J

Solicitors:

Simpson Grierson, Respondent