Introduction
The High Court of Australia recently held in Google LLC v Defteros that Google is not a publisher of defamatory content when providing hyperlinks to searchers. [1] This is a crucial win for Google and helps shed light on the Court’s stance on the liability of search engines in providing links to third-party publications that may be construed as defamatory.
Background
Melbourne-based criminal lawyer Mr Defteros was charged in 2004 with conspiracy and incitement to commit murder. A year later the charges were dropped but an article by newspaper The Age detailing Mr Defteros’ charges remained published. In 2016, Mr Defteros commenced proceedings against Google. He alleged that Google was liable for defamation as The Age article appeared from a Google search of his name. Mr Defteros successfully sued Google in 2020. Given the precedent it set, Google appealed the case all the way to the High Court, resulting in the appeal being allowed and Google being held not liable as publisher for the search result in defamation.
The High Court considered:
Could Google be a Publisher?
The Court reached the view that Google was not a publisher. Google could not be a publisher of the article each time someone clicked on the hyperlink, because Google was and remained a neutral third party.[2] While a search engine provides a link to the published article, in doing so one cannot infer that the act of communicating a link to a third-party webpage is done with a common intention shared by a third party. The Court therefore determined that Google providing a hyperlink for users was not a basis to impute liability.
Does a Hyperlink Entice Viewers?
The majority judgments also found that Google was not enticing or encouraging searchers to click on the hyperlink purely by providing it. Further, the inclusion of words accompanying the hyperlink in the Google search does not demonstrate an assumption of responsibility by Google, they are ‘content-neutral,’ especially in this case as the words accompanying the article on Google’s search result simply described Mr Defteros and his clients.[3] The primary judge also determined that nothing in the results drew attention to the defamatory imputations that were allegedly conveyed in The Age article.[4]
Could Google be Liable in Defamation?
The majority found that because Google was not a publisher and there was no ‘common intention’ to publish the article with The Age they were therefore not liable.[5] This is consistent with the finding that Google was not encouraging views to the article, remaining a passive tool for users to search the internet.
Key Takeaway
This area of law is evolving and is anticipated to be subject to legislative reform.
The findings in this case may be academic but shine a light on the factors a Court will take into consideration when determining who is the “publisher” of online content (and therefore legally responsible). If you or your business maintains a social media presence and comments from third parties are not moderated, it may give rise to liability for you or your business as being a publisher rather than being construed a passive third party (as Google was considered in this instance).
Pragma Lawyers can assist with providing advice relating to avoiding and defending defamation claims. Contact us today on (08) 6188 3340 or email hello@pragma.law.
[3] Ibid [230] per Edelman and Steward JJ.
[4] Defteros v Google LLC [2020] VSC 219 at [62] per Richards J.
[5] [2022] HCA 27 [53] per Kiefel CJ and Gleeson J, [240] per Edelman and Steward JJ.
