The High Court has issued a definitive word on search engines' liability for third-party publications, through its decision on Wednesday in Google LLC v Defteros  HCA 27 – at least for now.
The High Court confirmed, by way of a 5-2 majority, that search engines are not “publishers” of defamatory content by providing links to defamatory webpages.
Mr Defteros is defamed
In summary, Mr Defteros, who is a Victorian criminal lawyer, alleged that he had been defamed by the search results Google LLC returned in response to a search for his name. In particular, he was concerned by:
- a 2004 article published by The Age entitled "Underworld loses valued friend at court". Mr Defteros commenced proceedings in respect of this matter in 2016 (2016 Proceeding); and
- other material, including the Wikipedia article "Melbourne Gangland Killings" which included a footnote to the Underworld article (2017 Proceeding).
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.
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” and noted that 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.
On appeal, the trial judge’s findings were upheld, following which Google appealed to the High Court.
Four reasons Google said it was not a publisher
Google raised four matters on appeal:
- first, that it was not the “publisher” of material within the meaning intended by the law of defamation. Rather, it simply provided a hyperlink to the material – the operator of the website to which the hyperlink relates is the relevant publisher of the material;
- second, that it should have the benefit of the qualified privileged defence at common law on the basis that it provided an “indispensable means by which users can locate information of interest to them on the internet”. A substantial portion of those users to whom the Underworld article (which, Google argued, was concerned with matters of considerable public interest) was published had a legitimate interest in it;
- third, that it should have the benefit of the qualified privilege defence under section 30 of the Defamation Act 2005 (Vic), as the material alleged to have been published was in respect of a matter of genuine or apparent interest, and Google had acted reasonably in making the hyperlinks available; and
- fourth, Google was a mere innocent disseminator of the material in question, and thus should have the benefit of the innocent dissemination defence.
The High Court’s decision: The search engine as a librarian
By a 5-2 majority, the High Court upheld Google’s appeal on the basis of its first appeal point.
Chief Justice Kiefel and Justice Gleeson, with whom Justice Gaegler agreed, held that Google had not in fact published the material. In doing so, they traversed the principles surrounding publication in defamation cases, and likened Google’s involvement – that is, the centralisation of links in response to a search query – to someone asking for directions to a point of sale for a periodical containing defamatory material. In that circumstance, the Court noted that it would “hardly be suggested that the person had communicated the defamatory material contained in the periodical”. It was quite different to the analogy stated by the trial judge, which was that Google was a “librarian” handing someone a book marked to a particular page. Here, the Court stated:
“The person is not directed to a particular result, as the Court of Appeal implied. According to the trial judge's findings, results are ranked by the use of an algorithm having regard to relevance using "signals" or clues as to what the person searching is looking for according to the words used in their enquiry. The search result merely refers, in the sense of drawing attention, to a webpage.”
A search result was described by the Court to be a reference to “something, somewhere else”. Facilitating a person’s access to the contents of another webpage was not considered to be participating in the bilateral process of communicating its contents to that person.
The Court also noted Mr Defteros’ submission that, by its failure to remove the material when notified of its existence, Google had in essence acquiesced to the publication of the material and therefore had “published”. This position was rejected – notice of the existence of the material was not relevant to the question as to whether the material had been published.
Justice Edelman and Justice Steward, in a separate judgement, also held that Google was not a publisher. In doing so, they agreed with Chief Justice Kiefel and Justice Gleeson that Google’s system was merely a direction that something existed in a particular location and therefore Google was a mere facilitator rather than a publisher. Google also only ever provided information in the hyperlink that was given by the website to which the hyperlink directed. It provided no further commentary or colour, whether defamatory or otherwise. Such involvement was held not to be sufficient to demonstrate that Google was in fact a publisher.
Justice Keane and Justice Gordon dissented from the majority view, in separate opinions. Justice Keane took the view that Google was a publisher, in that its search engine assisted people to comprehend defamatory material. The publication to users – that is, their viewing of the material – would not have occurred without Google’s involvement except in the rare case where a person may directly access the page via its URL, and therefore the search engine could not simply be described as a “telephone book” or any other passive instrument. Justice Keane did not, however, express any detailed view as to Google’s liability for the publication or the availability of any defence, beyond simply confirming that he agreed with the Court of Appeal’s determination of those issues.
Justice Gordon also held that Google was a publisher and emphasised the sophistication of Google’s web crawler systems and indexing of pages including (and in particular), news pages. In her view, this, along with the commercial benefit that Google obtained through operation of the search engine, provided a clear rebuttal for any allegation that Google was a “passive” participant in the dissemination of the material to its audience. Justice Gordon also dismissed Google’s other grounds, finding that Google had failed to provide sufficient evidence that the material was published to an audience with interest in the material and therefore could not establish the defence of qualified privilege, and that it could not be an innocent disseminator in circumstances where it had been informed of the defamatory nature of the material and taken no action.
Key takeaways for defamatory material, search engines – and anyone who creates a hyperlink
While the result in this case is a welcome one for Google, the lack of a unanimous front from the High Court means that a future case involving search engines might take some heart if there is a differently constituted court.
The High Court’s decision is understandable in circumstances where the search engine can demonstrate that it was truly neutral (or passive, to use the term applied liberally by Google during the course of the matter). As outlined in the judgment given by Chief Justice Kiefel and Justice Gleeson, Google was characterised as having acted as a tour guide for people who were interested in the broader topic that gave rise to the article, but did not compel the readers to click on the hyperlink. It merely indicated that there was a website with material on that particular topic.
The position might, however, be quite different if a search engine was shown to have a particular slant or weighting towards articles with clearly defamatory leanings. This would depend upon the systems and algorithms used by the search engine. With that in mind, Justice Keane and Justice Gordon’s respective dissents, and various comments made by the majority, suggest that the door may remain ajar for an aggrieved party in those circumstances to press for a different decision.
As we have outlined previously, the recent introduction in Queensland, NSW, Victoria and SA of a single publication rule and a serious harm threshold may also serve to ameliorate the potentially significant consequences of alleged defamation 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. We therefore suspect that could yet be an additional layer of regulatory response to the intermediary liability issue that arose in this case.
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.