Supreme Court New South Wales Medium Neutral Citation: Miller v Overseas Newspaper [2017] NSWSC 1350 Hearing dates: 19 September 2017 Decision date: 19 September 2017 Jurisdiction: Common Law Before: McCallum J Decision: 1. Pursuant to section 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 the publication of information tending to reveal the identity of the plaintiff in connection with these proccedings is prohibited. 2. Upon the provision by the plaintiff of the usual undertaking as to damages: (a) that the fourth and fifth defendants forthwith, and until further order of the Court, remove the article* from Google internet search results; (b) that the fourth and fifth defendants file and serve an affidavit detailing and evidencing the steps taken to comply with order (2)(a) by 28 September 2017. 3. Upon provision by the plaintiff of the usual undertaking as to damages, that the defendants be restrained until further order of the Court, by themselves, their servants or agents, from publishing to any person or entity any statement or imputation to the effect of, or not substantially different in effect from, those set out in paragraphs 3(a) to (f) of the Summons herein. 4. Order that the proceedings be referred to as Miller v An Overseas Newspaper. 5. Stand the matter over to 6 October 2017. 6. Grant leave to the Plaintiff to serve the Summons on the First, Second and Third Defendants outside New South Wales in the Solomon Islands. 7. Service may be effected at the email addresses of the Defendants. 8. Grant liberty to apply on 3 days' notice. Catchwords: DEFAMATION – interlocutory injunctions – overseas newspaper publishing highly defamatory article about the plaintiff – where article taken down immediately in response to complaint but subsequently re-posted – desirability of having evidence as to falsity of imputations Legislation Cited: Defamation Act 2005 (NSW) Category: Procedural and other rulings Parties: Gary Miller (a pseudonym) (plaintiff) Overseas Newspaper (a pseudonym) (first defendant) Mathias Loji (second defendant) Alfred Sasako (third defendant) Google Australia Pty Ltd (fourth defendant) Google Inc (fifth defendant) Representation: Counsel: B McClintock SC, F McNeil, P Hart (plaintiff) Solicitors: Kalantzis Lawyers (plaintiff) File Number(s): 2017/284635 Publication restriction: Pseudonym orders made Judgment 1. HER HONOUR: Gary Miller (a pseudonym) moves the Court for urgent injunctive relief to restrain the publication of a defamatory article on the website of an overseas newspaper. He further seeks to restrain the publication of a search result in respect of that article on the search engine Google. 2. The application is supported by two affidavits sworn by Mr Miller's solicitor which annex a copy of the matter complained of. It is highly defamatory. 3. The history of the solicitor's attempts to have the material removed without resort to legal proceedings may be summarised briefly. The article first came to the solicitor's attention in late August 2017 when the plaintiff retained him to assist in respect of the material. The solicitor ascertained that the material was available both on the overseas newspaper's website and through a search of the plaintiff's name on Google. 4. The first defendant is the company that publishes the overseas newspaper. The second defendant is identified on the newspaper's website as the person who is the publisher of the newspaper. The third defendant is the person under whose by-line the article is published. 5. The solicitor was successful, in the first instance, in securing the removal of the article from the newspaper's website. 6. Separately, he contacted Google Australia Pty Ltd and Google Inc seeking to have removed from the Google search engine results the snippet that appears when the plaintiff's name is searched in that search engine. The terms of the snippet are almost as defamatory as the article itself and certainly capture the burden of the defamatory sting of the article which, in short, accuses the plaintiff of sexual impropriety with young men in his care. 7. Having successfully secured the removal of the article from the internet, or at least believing that had been achieved, the solicitor then learned that the article was again available through a Google search and on the newspaper's website. 8. Concerns notices under the Defamation Act 2005 (NSW) were sent and as at this morning it appears, as evidenced in ex A before me, that the whole of the newspaper's website has been suspended or taken down. 9. As to communications with Google, the solicitor wrote first to the Australian entity, Google Australia Pty Ltd. That entity responded by asserting that it is unable to have Google search results removed. Correspondence with the American entity, Google Inc, produced a response suggesting that that entity has the technical capacity to remove the search engine results but, in the absence of an order of the Court, declined to do so, ostensibly on the basis that the material sought to be removed is such as to fall within the classification of a newspaper article. 10. The nature of the allegations has already been referred to earlier in this judgment. 11. It is not an element of the cause of action of defamation for a plaintiff to prove that a defamatory imputation allegedly conveyed by defamatory matter is false. However, I took the view on hearing the present application, having regard to the serious consequences of breach of a restraining order and further having regard to the inherent difficulty of ascertaining where the truth lies in allegations of the kind made against the plaintiff in the article, that there should be before me on the application direct evidence from the plaintiff as to the falsity of the allegations. 12. In those circumstances Mr McClintock SC, who appears with Ms McNeil and Ms Hart for the plaintiff, called sworn evidence from the plaintiff. 13. The plaintiff gave careful evidence as to the falsity of the allegations and a possible explanation for their having been falsely made. In particular, he referred to a particular person who may have a motive or at least the capacity to make such allegations in the absence of their having any truth to them. Without descending to the detail of the plaintiff's evidence, the explanation may lie in a suggestion of mental illness on the part of the ultimate author of the allegations, who is not the author of the article. 14. In all the circumstances, notwithstanding the difficulties ordinarily facing a plaintiff seeking injunctive relief ex parte on the strength of a cause of action for defamation, I am satisfied that it is appropriate to grant the relief sought in the present case. 15. Specifically, I am satisfied that the plaintiff has a strong prima facie case for a cause of action in defamation. 16. Secondly, the absence of any response from the publisher defendants suggests they have no interest in defending their publication of the allegations. Certainly, they do not at this point appear to seek to contend that the allegations are true. 17. Thirdly, as I have recorded in this judgment, the plaintiff has given sworn evidence that the allegations are false. 18. Fourthly, so far as the balance of convenience is concerned, it is plain that the allegations are extremely damaging and are such as to be capable of causing immediate and irreparable damage to the good reputation of the plaintiff. 19. For those reasons, I am satisfied that it is appropriate to grant the relief sought. ********** Amendments 29 January 2018 - Incorrect spelling of Counsel's surname on coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 January 2018