Google Not Liable for Providing a Link to a Defamatory Article, High Court Finds

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By Paul Gregoire and Ugur Nedim

In a turnaround to the findings relating to other recent internet publication defamation suits, the majority of the High Court recently found that Google, as respondent, wasn’t the publisher of an article listed in its search engine’s results, but rather the tech giant merely facilitated access to it.

Melbourne criminal lawyer George Defteros was a go-to lawyer for a number of the city’s underworld figures, like Mick Gatto and Mario Condello, when he and Condello in 2004 were charged with incitement and conspiracy to murder crime boss Carl Williams.

The charges were withdrawn by the Victorian Director of Public Prosecutions in 2005, yet, in the intervening year, The Age had published a number of articles about the prosecutions, including one titled Underworld Loses Valued Friend at Court, which referred to Defteros.

In 2016, the criminal solicitor became aware that a Google search resulted in a listing of “the underworld article”, which was written on the day after he was charged. Defteros subsequently filed to sue Google for defamation, claiming the company, as publisher of the material, defamed him.

Google argued the defences of innocent dissemination and qualified privilege. And Victorian Supreme Court Justice Melinda Richards found in May 2020 that the search result made Google a publisher of the article that was defamatory and awarded Defteros $40,000 in damages.

To the highest court

Following the Victorian Court of Appeal dismissing Google’s challenge to the original ruling on 17 June this year, the tech company appealed its findings to the High Court of Australia, which delivered its ruling on 17 August.

In the original decision, Justice Richards found that the statutory defence of qualified privilege, that Google had the right to relay the defamatory article with no malice intended, had been made out in part, with the trial interests and costs outcomes reflecting the “mixed success” of both sides.

While the Google appeal to the High Court involved three grounds. The primary point was it was wrong to find it was a publisher of the article. Secondly, the court was mistaken to reject its defence of qualified privilege, and finally, it raised again, the statutory defence of innocent defamation.

Section 32 of the Defamation Act 2005 (Vic) provides that the defence of innocent defamation has three elements: the defendant published material in the capacity of a “subordinate distributor”, it was unaware it was defamatory, and having no requirement to know that, it wasn’t negligent.

“It will not be necessary to consider the grounds relating to the defences,” High Court Chief Justice Susan Kiefel and her colleague Justice Jacqueline Gleeson explained in their final findings.

“Applying the settled principles of the common law of defamation concerning the communication of defamatory matter and participation in it, it cannot be concluded that the appellant, by providing the hyperlink, published” the article, they added.

Deliberations

Their Honours go on to explain that Justice Richards found that Google publishes a webpage by providing the hyperlink in the search result to access it. And the tech company, as a secondary publisher, was not liable until a reasonable time after Defteros drew its attention to the listing.

The trial judge had further found that the immediacy of a search result listing translates as a form of publication to a much greater degree than a person who finds a reference to a book in a library catalogue but still has to retrieve it from the shelves themselves.

The Victorian Court of Appeal upheld this position, finding that seven days after Defteros alerted Google to the listing, asking the company to take it down to which it refused, the tech giant then became a liable publisher, as the search result “incorporated” the article and acted as “enticement” to it. 

While in 2020’s Fairfax Media Publications versus Voller, the High Court found that comments made under a Facebook post do involve the owner being the publisher of any libellous statements conveyed to a third-party, as they’ve voluntarily been instrumental in or contributed to them.

But, in the case of Google, the lower courts hadn’t suggested it had communicated the defamatory article, the High Court justices explained, so the question remaining was whether its search engine, in assisting access, amounts to the act of participating in the communication of such material.

Appeal made out

Their Honours found that unlike the Voller case, Google, in providing the link, had done nothing to assist in the creation of the underworld article, it had neither approved of or encouraged the article’s production and nor did it contribute to it being placed on The Age website.

The justices further provided the analogy of a person who wanted to buy a copy of a periodical, that contained defamatory material, asking another where to obtain it. In this case, the person providing directions does not communicate the libellous information or participate in its communication.

Therefore, in providing a hyperlink, Google is not instrumental, nor has it contributed in any extent to the publication of the material on the other side of it, rather a search result is something remote and distinct from the act of publication.

Their Honours add that Google did not approve the act of writing the underworld article. It didn’t contribute to its publication on The Age website, and nor did it provide a forum where it could be communicated or a space for commentary upon it.

“Contrary to the finding of the trial judge, the appellant was not instrumental in communicating the underworld article,” their Honours found. “It assisted persons searching the web to find certain information and to access it”.

As for the idea that Google had enticed the reader to an article, their Honours found it “difficult to see how this level of excitement could be generated by the words of the search result”. And in terms of Defteros’ request to remove the link, it wrongly assumes Google the publisher.

The orders of the day

On 17 August, Chief Justice Kiefel and Justice Gleeson ordered the appeal be upheld, and that the orders of the primary judge be set aside.

High Court Justices Stephen Gageler, James Edelman and Simon Steward agreed with these orders and provided their own findings, while Justices Patrick Keane and Michelle Gordon both provided dissenting opinions.

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