High Court of Australia Finds That Google Was Not a Publisher

Mr Defteros is a solicitor who has practised and specialised in criminal law for many years. In the course of that practice, he acted for persons who became well known during Melbourne’s “gangland wars”.

Supreme Court of Victoria Trial and Appeal

In 2005, Mr Defteros and another were charged with conspiracy to murder and incitement to murder Carl Williams and were committed to stand trial. In 2005, the Director of Public Prosecutions withdrew the charges against Mr Defteros.

In 2016, Mr Defteros  became aware that an internet search of his name in the Google search engine produced search results which included a snippet of an article published by The Age entitled “Underworld loses valued friend at court”, originally published on the day he was charged (Web Material). The title of the article was displayed in the search result, and it contained a hyperlink to the full article on The Age’s website. Mr Defteros requested that Google remove the Web Material, which Google did not do.

Following Google’s failure to remove the Webb Material, Mr Defteros commenced proceedings for defamation out of the Supreme Court of Victoria. Mr Defteros alleged that the article had defamed him, although there was no suggestion that the search result itself was defamatory. He claimed damages for defamation from Google as publisher of the Web Material. 

The trial judge, Richards J, found that the article conveyed the defamatory imputation that the respondent had crossed the line from professional lawyer for, to confidant and friend of, criminal elements. She also found that Google had published the Web Material, based on her view of the significance of the insertion of the hyperlink to The Age website in the search results.

Richards J found that the provision of the search result was instrumental to the communication of the content of the article to the user, in that it lent assistance to its publication. The courts below rejected, in part, the appellant's reliance on the statutory and common law defences of innocent dissemination and qualified privilege.

Only the defence of statutory qualified privilege was made out and only with respect to a substantial proportion, but not all, of the persons to whom her Honour found the Web Material had been published. Her Honour awarded Mr Defteros general damages of $40,000 and later made further orders for interest and costs.

Relevant to the High Court appeal, Google sought leave from the Court of Appeal to appeal the judgment in respect of the Web Material. The Court of Appeal (Beach, Kaye and Niall JJA) granted leave to appeal, but ultimately dismissed the appeal. 

The High Court Appeal

Google appealed to the High Court from that part of the judgment given by the Court of Appeal on 17 June 2021 concerning the Web Material. The appeal was advanced on 4 grounds:

  1. The first and principal ground is that the Court of Appeal was wrong to conclude that the appellant published the Web Material.
  2. The second and third grounds were that the Court of Appeal was wrong to reject Google’s defences of common law and statutory qualified privilege.
  3. The fourth ground was that the Court of Appeal was wrong to have rejected its defence of innocent dissemination at common law and pursuant to s 32 of the Defamation Act 2005 (Vic).

The grounds relating to Google’s defences were not considered, as the High Court found that applying the settled principles of the common law of defamation concerning the communication of defamatory matter and participation in it, it could not be concluded that Google, by providing the hyperlink, published the Web Material.

The High Court stated that the difficulty in this case did not arise from any uncertainty as to the principles concerning the publication of defamatory matter but rather the difficulties which can arise in the application of the principles to the particular facts of the case.

In this case, it was not suggested by the courts below that Google, as an internet search engine operator, actually communicated the defamatory material. It is of course possible that search results may themselves contain matters which are defamatory. But that was not this case in this matter.

The question which arose in this case, was whether in providing search results which in response to an enquiry, directed the attention of a person to the webpage of another assisted them in accessing the material and whether that amount to an act of participation in the communication of defamatory material.

The High Court, by majority, found that Google was not a publisher of the defamatory material.

The High Court held that Google did not lend assistance to The Age in communicating the defamatory matter contained in the article to the third-party users.

The provision of a hyperlink in the search result were said to merely facilitate access to the article and was not an act of participation in the bilateral process of communicating the contents of that article to a third party.

The High Court also found there was no other basis for finding publication because Google had not participated in the writing or disseminating of the defamatory matter.

Lavan Comment

In this case, Google argued that providing a hyperlink to a story did not amount to publication and it, therefore, could not be liable for any defamatory material contained in the story.

That said, the law as to the liability of internet intermediaries (search engines), for defamation remains uncertain in Australia. While this decision is favourable to Google, the 5-2 majority decision of the High Court suggests that a different finding may arise in the future if the facts of the case are slightly different.

Indeed, the finding of the High Court in this case, relies strongly on the defences available to Google, and the fact that Google was considered to be ‘neutral’ and ‘passive’ in disseminating the information.  On this premise, the result may be somewhat different if a search engine operates in a way which amounts to a more active participation in the dissemination of the information. 

As new internet intermediaries arise in various formats and with different degrees of participation in the dissemination of material, the courts may find internet intermediaries to be liable in defamation.

For further information as to any potential liability your company may be exposed to, or about how to minimise risks of any such liability, contact Cinzia Donald, Partner, or Kristy Yeoh, Special Counsel, in Lavan’s Litigation and Disputes Resolution Team.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.