22 Jul 2021

Google's defamation loss on gangland lawyer search results should make anyone hyperlinking more cautious

By Ian Bloemendal, Nick Josey, Chloe Hogan and Hilary Baker

There is now scope for hosts to be held liable for defamatory content held on linked websites – even if the link on their own page is neutral (i.e. not defamatory).

Can you imagine the internet without Google?

For most of us, Google has held the key to the internet for as long as we can remember. However, its liability under Australian defamation law has been controversial, particularly in circumstances where defamatory content is authored by third parties. Most recently, the Victorian Courts have added to the growing body of jurisprudence on search engines' liability for third-party publications, through its decision in Defteros v Google LLC [2021] VSCA 167.

In Defteros, the Victorian Court of Appeal confirmed that search engines can be a “publisher” of defamatory content by providing links to defamatory webpages even where the search results themselves were neutral.

Mr Defteros is defamed

Mr Defteros is a Victorian criminal lawyer. In 2004, he and his former client, Mr Condello, were charged with conspiracy to murder and incitement to murder members of the "Melbourne Underworld" including Carl Williams and his father. In August 2005, the charges against Mr Defteros were withdrawn. Mr Condello was murdered before his trial was due to commence.

Several years later, Mr Defteros commenced two separate defamation proceedings against Google, in 2016 and 2017 respectively. The 2016 proceedings concerned a 2004 article published by The Age entitled "Underworld loses valued friend at court" that appeared following a Google search of Mr Defteros' name. The 2017 proceedings related to other material, including the Wikipedia article "Melbourne Gangland Killings" which included a footnote to the Underworld article.

Mr Defteros argued that Google's publication of the Underworld article defamed him on the basis that Google was participating in the search engine function and therefore should be considered to be a publisher for the purposes of Australia's defamation laws. Google was notified of the defamatory article in February 2016, when Defteros Lawyers made a removal request, but did not remove it until December that year. In that time the article was accessed 150 times.

Google argued that it was not the publisher of the material as it was not an intentional communicator of words or images (ie., it had not intentionally lent its assistance to a republication), because its search engine was automated. It further argued that this was specifically so when a user clicked through to another website. (This argument was not pursued on appeal).

On 6 May 2020, the trial judge found in favour of Mr Defteros and awarded $40,000 damages in the 2016 proceeding; the 2017 proceeding was subsequently dismissed. Contrary to Google's arguments, Justice Richards found the search engine was not a “passive tool”; identified objectionable content can be removed by human intervention from the displayed search results.

Justice Richards also held that the Underworld article was defamatory, with the imputation being that Mr Defteros had "crossed the line from professional lawyer for, to confidant and friend of, criminal elements". Google appealed the decision

Why Google is the publisher, according to the Victorian Court of Appeal

Google argued it was not a publisher of the Underworld article, based on Google Inc v Duffy (2017) 129 SASR 304, which it said held that an internet search engine provider is only a publisher of the defamatory material in a hyperlink contained within a search result if that search result (without clicking on the hyperlink) is defamatory.

The Court of Appeal rejected Google's argument, noting that while in Duffy the search results were themselves defamatory, "the judgments in that case do not purport to lay down any rule that before an internet search engine provider can be held to be a publisher for the defamatory content of material accessed by clicking on a hyperlink in a search result, the search result must itself be defamatory".

In short, Duffy did not decide the question of whether Google publishes defamatory material on a third party webpage that is reached by a user who clicks on a hyperlink within an apparently neutral search result. That is because in Duffy, the Court decided a case where the search results was not "neutral". The Court of Appeal found that the fact that there was more information conveyed in Duffy did not detract from the conclusion that there was sufficient conduct here to constitute publication:

"The combination of the search terms, the text of the search result and the insertion of the URL link filtered the mass of material on the internet and both directed and encouraged the reader to click on the link for further information."

The Court noted that the issue of publication is separate to the question of whether the publication carries a defamatory meaning. While both are elements of the tort, the answer to the question of whether a person publishes a matter cannot depend on whether the matter also carries a defamatory meaning.

An inaccurate removal request

The Court also rejected Google's argument that it should not have been held to have been a publisher of the Underworld article after it received the removal request, due to the inaccuracies in that request.

"Notwithstanding the inaccuracies in the Removal Request, we see no error in the judge’s conclusion that Google became a publisher of the Underworld article seven days after it received the notification. The Removal Request put Google on notice that its search engine, when used to search the term ‘george defteros’, was returning results containing the URL of the Underworld article. Google had the capacity to alter subsequent search results by blocking this URL. It chose not to do so. Thus, a reasonable time after it received notification, in accordance with the authorities to which we have already referred, it became a publisher of the Underworld article."

Google because a publisher seven days after it received the removal request, based on Google's own evidence that it could consider and respond to a removal request within one week. It therefore had the capacity to alter subsequent search results involving defamatory links by blocking a URL within that timeframe. It became a publisher because it chose not to do so within a reasonable period of notification.

Innocent dissemination vs a removal request

Since Google was a secondary or subordinate publisher of the Underworld article and other material, it could not be liable for the publications until it had notice that its search engine was returning results that included the images and hyperlinks to the articles about which Mr Defteros made complaint.

However, the consequence of the notification finding meant that an innocent dissemination defence was not available to it after a reasonable time had passed (seven days in this case) for Google to consider the notice given to it on behalf of Mr Defteros and remove the URL from its future search results.

The Court of Appeal noted that:

  • the innocent dissemination defence is designed to protect the position of persons who have no practical ability to control and supervise the material published by them;
  • the key question was whether Google knew, or ought to have known of the defamatory material contained in the publications;
  • the defence is directed to the publisher's knowledge or capacity to have the knowledge of the defamatory content of the material contained in the relevant publication;
  • it is irrelevant whether or not a subordinate publisher (such as Google) is able to assess whether the particular content was true or not.

The Court reiterated that:

"The question is not whether Google knows or had the means of knowing that it might have a defence to an action brought against it in respect of the defamatory material contained in the matters published by it. Rather, as we have emphasised, the key question is whether Google knew, or ought to have known, of the defamatory material contained in the publications." [emphasis added]

The Court found that the removal request (even though it contained some grossly inaccurate information) was sufficient to identify the article that was complained of which contained defamatory material, and therefor to provide Google with the requisite knowledge that the Underworld article it published was defamatory of Mr Defteros.

Qualified privilege

Google sought to submit that a defence of qualified privilege was available to it because its provision of search results to users was for the "common convenience and welfare of society". Freedom of speech would be suppressed, it claimed, if its users with a legitimate interest in a subject were not able to readily locate content about the subject online.

The trial judge had found that while Google provided a service to its users, the evidence did not establish it did so as a matter of legal, social or moral duty. Further, the automated interaction that occurred with a Google search did not give rise to a community of interest between the user and Google – thereby denying a qualified privileged claim.

The Court of Appeal noted that the Underworld article was published to only a small number of people who accessed it out of "idle interest or curiosity". On that basis, the question surrounding the defence of qualified privilege at common law answered itself. That is because the fact a recipient of defamatory material seeks it out because it is interesting or thought-provoking is insufficient to constitute the requisite interest required to found the common law defence.

The Court of Appeal also looked at contentions over the Wikipedia article which arose from searches of terms such as "Melbourne Convicted Underworld", "Melbourne Underworld Figures", or "Melbourne Convicted Mafia". The Court found that searchers using those terms did not appear to seek to ascertain information about Mr Defteros. Rather, they did so for the purpose of obtaining information about a broader, and less specific topic: the activities of members of the Melbourne Underworld. Qualified privilege would therefore not apply at common law as there was no requisite reciprocity of duty of interest.

The Court of Appeal noted that the statutory qualified privilege defence (under section 30 of the Defamation Act) differs from the common law in that:

  • the statutory defence does not require a particular reciprocity or community between the interest of the publisher and the recipient, only that the publication be reasonable in the circumstances; and
  • the use of the words "an interest" in section 30 take on a broader construction than that at common law. (Nevertheless, it has been emphasised that this requisite interest must be something more than that of idle curiosity, and it must be definite and of substance).

Insofar as a statutory qualified privilege defence was concerned, the trial judge was not satisfied that Google's conduct in publishing the Wikipedia article was reasonable. That was because there was no evidence that anyone at Google had performed a page level check on the Wikipedia article in accordance with Google's own Search Quality Evaluator Guidelines.

The Court of Appeal upheld the trial judge's findings on the basis that while the articles concerned topics that were "of considerable public interest", that meant no more than they were likely to arouse curiosity rather than inform on a matter in which each reader had a particular legitimate interest. This was fatal to Google's ability to make out the statutory defence, as it had the onus of proving, on the balance of probabilities, that the persons to whom the articles were published had a relevant interest or apparent interest in them.

Insofar as the Wikipedia article was concerned, Google's defence (in relation to the reasonableness element) failed at an evidentiary level as it did not give evidence at trial that anyone at Google had performed the "page level checks" on the individual articles contained within the impugned Wikipedia article in accordance with its reputable source defamation pushback policy.

Key takeaways for defamatory material, search engines – and anyone who creates a hyperlink

The implications of this case are not limited to Google. They also affect companies whose websites contain links to third party websites. There is now scope for hosts to be held liable for defamatory content held on linked websites – even if the link on their own page is neutral (ie. not defamatory). This is because the provision of a hyperlink may facilitate the communication of the contents of the linked webpage to such a substantial degree that it amounts to publication of the webpage (eg., directing the reader to defamatory material or enticing a reader to the defamatory content for more information on a topic).

This case also demonstrates the difficulties in proving an innocent dissemination defence where objectionable content is notified, identifiable and can be removed with relative ease. Companies should remain vigilant in monitoring the content to which they link, and act quickly to remove potentially defamatory material when notified of its existence. Further, qualified privilege will only be available where there is a duty to publish an otherwise defamatory statement or a relevant interest can be made out (which could be difficult).

Defamation law, however, is currently undergoing reform in Australia, and the recent introduction in Queensland, NSW, Victoria and SA of a single publication rule and a serious harm threshold may serve to ameliorate the potentially significant consequences for some publishers. The next round of reforms will consider internet intermediary liability for third-party content and potential protections for people who make statements to the Police, regulators and other relevant bodies in relation to suspected unlawful activities.

As always, it is wise and economically sound to obtain legal advice from an experienced defamation lawyer prior to making a decision to publish material that contains or has links to material that risks tarnishing a person's reputation.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.