Johnson Winter & Slattery is delighted with the recent High Court outcome our client, Google LLC (Google), after a long-fought and significant battle in a defamation claim concerning search engine results.
The decision has been described by President of the Australian Bar Association and author of The Law of Defamation and the Internet, Dr Matt Collins AM QC, as “a very significant fillip for operators of search engines, exempting them in most cases from the ambit of Australian defamation law”[1].
In Google LLC v Defteros,[2] the High Court, by a majority of 5-2, allowed the appeal by Google against a defamation liability finding by the Court of Appeal of the Supreme Court of Victoria. The High Court, by majority, held that Google was not liable for defamation as it was not a ‘publisher’ of defamatory matter in an article published by The Age when, in response to a Google search performed by a user, Google provided hyperlinks to that article with no defamatory ‘snippets’ in its organic search results.[3] Google was found to facilitate access to webpages in the provision of hyperlinks, which were described as, “merely a tool which enables a person to navigate to another webpage”[4]. This facilitation did not constitute assistance given to The Age or participation by Google in communicating the contents of the relevant webpage to a third party.[5]
We first became involved in this matter in 2016 when Mr George Defteros, a criminal lawyer, commenced defamation proceedings[6] after becoming aware of results produced on Google’s search engine when his full name was searched. The results included a ‘snippet’ of a 2004 article by The Age and a hyperlink in the article title, "Underworld loses valued friend at court" which, when clicked, took the user to the complete article on the website of The Age. Google did not remove the search result following a removal request made by Mr Defteros. It was not in contest on appeal that the article itself was defamatory.
At first instance, Richards J held that Google had published the search results, including the article snippet with a hyperlink to The Age’s article (being the search result itself), and the article (referred to in the judgments collectively as the ‘Web Matter’). The trial judge also held that Google had partially made out its statutory defence of qualified privilege, but it was limited to the publication of the article to people, “who had a legitimate interest or apparent interest in receiving information about ‘george defteros’”[7]. The defence did not apply to those who had conducted the Google search out of “idle interest or curiosity”[8]. Richards J delivered judgment in favour of Mr Defteros and awarded him general damages in the amount of $40,000.
On appeal, the Court of Appeal (Beach, Kaye, and Niall JJA) held that Google published the ‘Web Matter’, dismissed Google’s appeal, and rejected Google’s defences of common law and statutory innocent dissemination and qualified privilege. Google then appealed to the High Court on the basis that the Court of Appeal had wrongly found it had published the Web Matter and in relation to its defences.
In applying settled law concerning the communication of defamatory matter and participation in such communication,[9] the majority held that Google’s provision of a hyperlink in a search result to facilitate access to a third party to a webpage does not involve participation in the bilateral process of communicating the contents of the web page to them[10] for the purposes of publication in defamation law.
Further, while a hyperlink provided in addition to other factors could amount to publication for the purposes of defamation, if there is sufficient enticement or encouragement of a third party to attract attention to defamatory material,[11] Gageler J, and Edelman and Steward JJ (in a joint judgment), found that the provision by Google of a hyperlink alone in search results does not direct, entice or encourage the searcher to click on the hyperlink.[12]
The majority also distinguished the facts of this case from other cases such as Voller,[13] in which it was found that the defendants encouraged the creation of defamatory matter and provided a platform for its communication.[14] In Defteros, Google’s acts were instead considered too remote as it was not involved in the communication of the defamatory material.[15] The circumstances were different from established cases concerning publication[16] in that it did not approve the material beforehand or contribute to the article’s publication, or encourage comments in response to the article.[17]
The High Court’s decision was a positive outcome for search engine operators in relation to the provision of hyperlinks in organic search results with no defamatory content in the relevant snippet. That position does not extend protection to online disseminators of information. The decision also does not protect search engines from liability for defamatory content in snippets or titles produced with search results.[18]
It follows from the majority’s finding that Google facilitated access to webpages and was not a publisher in the circumstance of this case, and that acts taken by search engines or disseminators of content which include actual distribution, encouragement, endorsement, or adoption of, defamatory material, or approval of defamatory matter which is to be published,[19] may give rise to liability for publication in defamation.
Gageler J also left open potential liability, as publisher, for the provision of sponsored links.[20]
Given the finding on publication, the majority did not rule on Google's appeal in relation to defences.
It now appears clear that search engines will not be held liable for publication in defamation claims if their acts are limited to the provision of hyperlinks and snippets which are not defamatory, in organic search results. As Dr Collins put it, “They have no need of a defence, because they are not publishers in the first place of search results that are not themselves defamatory or of defamatory web pages hyperlinked from their search results”[21].
The High Court’s decision in Defteros was delivered against the background of the current Stage 2 Review of the Model Defamation provisions, which includes a proposed statutory exemption for search engine providers.
[1] Lawyers Weekly, 18 August 2022 <https://www.lawyersweekly.com.au>
[2] Google LLC v Defteros [2022] HCA 27 (Defteros).
[3] Defteros at [9] and [55] per Kiefel CJ and Gleeson J; at [59] per Gageler J; at [175] and [240] per Edelman and Steward JJ.
[4] Defteros at [52] per Kiefel CJ and Gleeson J.
[5] Defteros at [51] - [53] per Kiefel CJ and Gleeson J.
[6] Initially proceedings were brought against Google LLC and Google Australia Pty Limited. In 2017 Google Australia brought a successful strike out of the action against it, with indemnity costs – see Defteros v Google LLC [2017] VSC 158.
[7] Defteros v Google LLC [2020] VSC 219 at [220] per Richards J.
[8] Defteros v Google LLC [2020] VSC 219 at [200] – [203] per Richards J.
[9] See generally Webb v Bloch (1928) 41 CLR 331.
[10] Defteros at [53] per Kiefel CJ and Gleeson J.
[11] Defteros at [66] per Gageler J.
[12] Defteros at [73] & [74] per Gageler J; [236] per Edelman & Steward JJ.
[13] Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 (Voller).
[14] Defteros at [53] per Kiefel CJ and Gleeson J.
[15] See, for example, Defteros at [48] - [49] per Kiefel CJ and Gleeson J.
[16] See Webb v Bloch (1928) 41 CLR 331 and Voller.
[17] Defteros at [49] per Kiefel CJ and Gleeson J.
[18] Defteros at [23] per Kiefel CJ and Gleeson J.
[19] Defteros at [34] and [45] per Kiefel CJ and Gleeson J.
[20] Defteros at [69] per Gageler J.
[21] Lawyers Weekly, 18 August 2022 <https://www.lawyersweekly.com.au>