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Google LLC v Defteros
In the recent case of Google LLC v Defteros [2022] HCA 27, the High Court of Australia (HCA) determined that providing hyperlinks in search results leading to potentially defamatory content does not automatically make search engines liable of defamation.
Facts
George Defteros (Mr. Defteros), was and is a solicitor who represented a number of individuals during Melbourne’s “gangland wars,” including Dominic Gatto and Mario Condello (Mr. Condello). In 2004, both Mr. Defteros and Mr. Condello were charged with conspiracy to commit murder and incitement. However, in 2005, the prosecution dropped the charges against Mr. Defteros, a development widely covered by the media, including the Age newspaper (the Age).
When Mr. Defteros’ name was searched, the results included a preview of an article published by The Age entitled “Underworld loses valued friend at Court” (the Article). The Article was displayed in the search results and included a hyperlink to the full article (Search Result). Mr. Defteros subsequently requested Google to remove the Search Result, however, declined. Mr. Defteros then sent a Concerns Notice to Google, claiming that Google, through the Search Result, acted as the publisher of the Article. When Google chose not to remove the Search Result, Mr.Defteros initiated legal proceedings. Mr Defteros alleged that the Article made defamatory imputations towards him, and contended that Google, by displaying the Search Result, was as a publisher.
Original Decision
At first instance, the Supreme Court of Victoria (the Court) concluded that Google was a publisher of the Search Result. The determination was based on the Court’s view that the hyperlink in the Search Result played an important role in leading users to the Article. The Court held that when Google provides a Search Result with a hyperlink, it actively enables and facilitates the communication of the content of the webpage to the user. Additionally, the Court determined that due to the Search Result, Google conveyed imputations that Mr. Defteros had ‘crossed the line’ from being a professional lawyer to becoming a ‘confidant and friend, of criminal elements’. Consequently, the Court granted Mr. Defteros $40,000.00 in damages, along with interest and costs.
Google appealed this decision to the Victorian Supreme Court of Appeal (Court of Appeal), however the decision of the initial finding that Google was liable for defamation was upheld. The Court of Appeal determined that the Search Result ‘filtered the mass of material on the internet and both directed and encouraged the reader to click on the link for further information’. Subsequently, Google sought special leave to appeal the decision to the HCA.
High Court Decision
In a majority decision, the HCA determined that Google was not responsible for the publication of the Article by The Age. It was clarified that a search result on Google simply ‘conveys to the person searching that they may be interested in one or more of the results’, and that Google should not be considered as a publisher of any defamatory content within the Article. The HCA went on to state that ‘the critical feature is that the search result is no more than a designedly helpful answer to a user-initiated inquiry as to the existence and location of information on the internet’. Essentially, the HCA noted that a search engine provides helpful responses to a user’s inquiry about the existence and whereabouts of information on the internet. As Google’s role in offering search results is no more than providing assistance or facilitating access, it cannot be argued that Google played a significant part in the act of publication (and therefore did not defame Mr. Defteros).
Chief Justice Kiefel and Justice Gleeson stated that Google did not endorse or support the creation of defamatory material with the intention of sharing it publicly, and therefore played no role in the publication of the Article by The Age. Google did not offer a platform for this content to be shared, nor did it promote the writing of comments in response to the Article that might contain defamatory material. Instead, it helped individuals searching the internet to locate specific information and access it.
Justice Gagelar concurred, however, did allude to the fact that there may be situations where the provision of a hyperlink could amount to defamation. He stated that simply providing a hyperlink doesn’t constitute active involvement in the publication process but didn’t rule out the possibility that when combined ‘with other factors’, providing a hyperlink could contribute to the publication of content on that linked webpage.
Key Takeaways
1. In 2005, the Article published by The Age covered events where both Mr. Defteros and Mr. Condello were charged with conspiracy to commit murder and incitement (charges that were eventually dropped by Director of Public Prosecution)
2. When Mr. Defteros’ name was searched in Google, the results included a preview and hyperlink to the Article published by The Age.
3. At first instance, the Supreme Court of Victoria concluded that Google was a publisher of the Search Result, and Mr. Defteros was awarded $40,000.00 in damages, along with interest and costs.
4. The Original Decision was appealed to the HCA, who clarified that ‘the critical feature is that the Search Result is no more than a designedly helpful answer to a user-initiated inquiry as to the existence and location of information on the internet’.
5. The HCA determined that Google’s role in offering search results is no more than providing assistance or facilitating access, and that Google was not responsible for the publication of The Article on The Age’s website.
6. Justice Gagelar stated that when combined ‘with other factors’, providing a hyperlink could contribute to the publication of content on that linked webpage.
7. With the Stage 2 reforms underway for commencement on 1 July 2024, which will focus on 2 key issues, being the liability of online intermediaries for publication of third-party content and whether absolute privilege should be extended to reports of illegal and unlawful conduct made to police, statutory investigative bodies, employers and disciplinary bodies.
Read the full decision here: Google LLC v Defteros
Should you have any questions or be the subject of a defamatory publication/s, we would welcome the opportunity to discuss and advise where necessary.
Salerno Law frequently provides advice to companies and individuals as to social media, defamation, copyright and intellectual property.
Disclaimer: The information contained herein if for general purposes only and is not intended to be legal advice or address instances of any specific individual or legal entity.
Author Alexander Phillips
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