On 17 August 2022, the High Court, by majority, found that Google was not a publisher of a defamatory media report which appeared on a user conducting an enquiry on Google’s search engine after inputting certain key search terms.
In proceedings originally commenced by Mr George Defteros in the Supreme Court of Victoria, Mr Defteros sought damages for defamation from Google, claiming Google was a publisher of an article featured on the mainstream online news platform operated by The Age. That news report appeared in Google’s search results when Mr Defteros ‘googled’ his name and was found to be defamatory of him.
Google denied that it was a publisher of The Age’s online article.
The trial judge, Richards J, found that Google was the publisher of the article as the provision of a hyperlinked search result is instrumental to the communication of the content of the webpage to the user.”[1]
Google appealed her Honour’s decision to the Victorian Court of Appeal, which was dismissed.
Google appealed that unfavourable Court of Appeal decision to the High Court.
Their Honours Chief Justice Kiefel, and Justices Gleeson, Gageler, Edelman and Steward allowed the appeal, finding that Google was not the publisher of the defamatory article.
Justices Gordon and Keane dissented, finding that Google was the publisher of the article.
In a joint judgment, Kiefel CJ and Gleeson J found that the relevant question was whether providing search results which, in response to an enquiry, direct the attention of a person to the webpage of another, and assisting the enquirer in accessing it, amounts to an act of participation in the communication of defamatory matter thereby rendering the search result provider a publisher.[2]
Their Honours found that as Google did not contribute to any extent to the publication of The Age’s article, nor did Google encourage the writing of comments in response to the article, Google was not instrumental in communicating the article. Rather, Google merely assisted people searching the Web to find certain information and to access it.[3]
Their Honours concluded that to hold otherwise would “expand the principles relating to publication”.[4]
In a separate judgment, Gageler J, agreeing with Kiefel CJ and Gleeson J, relevantly found that (at [74]):
“Google does not, merely by providing the search result in a form which includes the hyperlink, direct, entice or encourage the searcher to click on the hyperlink.”
Finally, in a joint judgment delivered by Edelman J and Steward J, their Honours rejected Mr Defteros’ contentions that Google assisted The Age with a common intention to publish the article. Their Honours found that:
- “The role of [Google] rose no higher than a mere facilitator because [Google] had no common intention shared with The Age that the searcher click on the hyperlink to the Underworld article” (at [220]).
- The facts did not support “a conclusion that the specific words accompanying the hyperlink to the Underworld article were likely to entice individuals to click on it”.[5]
- “[T]here was no justification for the proposition that the words accompanying the hyperlink either directed or encouraged the reader to click on the hyperlink”.[6]
In a dissenting judgment, Keane J concluded that Google could not be “accurately described as a passive instrument by means of which primary publishers convey information” (at [100]).
His Honour also found that “by facilitating near-instantaneous access by hyperlink to publications,” there was “sufficient communication of the content of the work of the primary publisher” to find that Google was in fact a publisher of the defamatory matter.[7]
Her Honour Gordon J, also in dissent, in applying the strict “publication rule”, concluded that where there is an intention built into a search engine, namely that third parties will access and read news articles that are hyperlinked, that search engine will be a publisher.[8]
Conclusion
This 5-2 decision is one which has the potential to throw up a number of “land mine” issues.
The particular circumstances of the case may result in the findings of the five‑justice majority having potentially complex application on the question of who is a ‘publisher’ of defamatory content in the online environment.
Posters of Twitter or LinkedIn content users need to beware. SSL does not consider, for example, this decision means that posts on such social media platforms containing only a hyperlink to potentially defamatory material will absolve the poster of liability on the basis that they are not a publisher.
In our view , the decision should not be taken as providing any “average Joe” with an impenetrable shield against being found to have been the publisher of defamatory matter which is downloadable in full at some other site or online source.
[1] Google LLC v Defteros [2022] HCA 27 [15].
[2] Google LLC v Defteros [2022] HCA 27 [24].
[3] Google LLC v Defteros [2022] HCA 27 [49].
[4] Google LLC v Defteros [2022] HCA 27 [53].
[5] Google LLC v Defteros [2022] HCA 27 [233] Edelman J and Steward J.
[6] Google LLC v Defteros [2022] HCA 27 [236] Edelman J and Steward J.
[7] Google LLC v Defteros [2022] HCA 27 [104] Keane J.
[8] Google LLC v Defteros [2022] HCA 27 [137] Gordon J.