Google (finally) gets a win. High Court finds Google is a "reference provider" not a publisher in defamation

More people are taking on Google in defamation cases and the multinational technology company is not lying down.  Google has fought many claims made against it and has been prepared to take matters to the High Court for an ultimate decision.

In the most recent decision of Google LLC v Defteros [2022] HCA 27, the High Court held that a Google search result that displayed the title, a direct clickable URL link and a snippet of the contents of a third-party webpage, did not make Google a publisher of the content on the webpage for the purpose of defamation.

Google’s relevant previous losses

• In February 2018, the Full Court of the Supreme Court of South Australia found that Google defamed Dr Duffy for publishing hyperlinks in its search results to third-party defamatory webpages, for extracting snippets in its search results capable of defaming Dr Duffy, and for defamatory imputations in its autocomplete search function in Google Inc v Duffy [2018] SASCFC 10.
• In June 2018, the High Court determined (in an appeal of an application to set aside defamation proceedings) that Google’s intentional participation in the communication of allegedly defamatory results to Google search engine users supported a finding that Google was a publisher in Trkulja v Google LLC (2018) 263 CLR 149.

The Defteros case

In a 5-2 majority decision, the High Court in Google LLC v Defteros [2022] HCA 27 held that Google was not a publisher of defamatory material by providing search results to users. The decision makes clear that in order to be found to be a publisher, it must be shown that the (alleged) publisher:

1. actually communicated, or
2. authorised another to communicate, or
3. assisted by procuring, provoking or conducing communication of, or
4. ratified or adopted the communication of another of the defamatory material.

The High Court ruled that provision of search results by Google, including the title of a webpage, the URL and hyperlink to the page and a snippet of the content of the webpage was a mere reference to the page and Google’s role was nothing more than that of a reference provider.  It was held not to be a publisher of the content contained on the page.

Background

George Defteros is a Victorian criminal lawyer and in 2004 was charged with conspiracy to murder Carl Williams and others involved in Melbourne’s “gangland wars”. A day after Mr Defteros was charged, The Age published an article titled "Underworld loses valued friend at Court" (the Article). The charges against Mr Defteros were later withdrawn in 2005 by the Director of Public Prosecution.  

In 2016, Mr Defteros “Googled” himself and the Article appeared as one of the Google search results. In 2017, Mr Defteros commenced proceedings against Google arguing that the Article was defamatory of him and, by reason of the search results, Google was a publisher of the Article.

The trial judge, Justice Richards of the Victorian Supreme Court, found that the Article was defamatory of Mr Defteros and that Google was a publisher based on Google’s insertion of the hyperlink to the Article in its search results. Google appealed that decision.

The Court of Appeal dismissed Google’s appeal finding that there was no error in the trial judge’s conclusion that Google became a publisher after seven days’ notice of the defamatory matter contained in the Article. Their Honours (Beach, Kaye and Niall JJA) considered the search result was an “enticement” to the reader to click on the hyperlink to the Article. Google sought and was granted leave to appeal that decision to the High Court.

The High Court’s decision

Majority

Chief Justices Kiefel and Justice Gleeson, and to an extent Justice Gaegler, determined that Google was not a publisher of the Article finding that Google’s provision of a hyperlink to the Article was a mere reference to the page and not much more. Their Honours, having considered a line of decisions in the United States and Canada, found that by the search results, Google:

[49]…did not approve the writing of the defamatory matter for the purpose of publication. It did not contribute to any extent to the publication of the [Article]on The Age’s webpage. It did not provide a forum or place where it could be communicated, nor did it encourage the writing of comment in response to the article which was likely to contain defamatory matter… [Google] was not instrumental in communicating the [Article].

Google’s involvement was likened to a person from whom directions are sought as to where a magazine might be found in a store.  By providing the directions, the person could not have been found to have communicated any defamatory matter contained in the magazine nor considered to have participated in the communication of any defamatory matter in it.  Google’s search results merely provided notice to its users of the Article and insertion of the link facilitated its users to access the Article.  The Court held that, by that notice and facilitation and having regard to the principles relating to publication in Australia, Google did not “participate in the bilateral process of communicating [the Article’s] contents to [the Google user]”.

Separately Justices Edelman and Stuart also held that Google was not a publisher. Their Honours found that Google’s organic search results, which included hyperlinks to other pages, did not involve Google publishing the matter contained on those webpages. The search results require Google users to independently click on a hyperlink to visit that webpage which, their Honours considered, was not an act of participation in the publication or assistance in facilitating access to matters contained on those webpages, including the Article.

Dissent

Justice Keane and Justice Gordon gave separate reasons for their dissent from the majority view.

Justice Keane reasoned that, having regard for the sophistication of Google’s automated information retrieval system and algorithms, the search results Google produced facilitated near-instantaneous access to pages relevant to the user’s inquiry. His Honour considered that without Google’s facilitation, access by the user to the Article would not have been possible (unless the user was aware the Article’s actual URL, which was unlikely). Therefore, by its search results and the inclusion of a hyperlink to the Article, Google’s facilitation was sufficient communication to be deemed a publisher of the Article, for the purpose of the law of defamation in Australia.

Justice Gordon, adopting the decision in Voller, determined that the action of Google in producing the search results including a link to the Article was “active”, “voluntary” and with intent to communicate the Article thereby making it a publisher.

Takeaway

The High Court decision in Defteros is significant as it clarifies the law of defamation in Australia in relation to organic search results or footnote references that include a hyperlink but which are not, on the face of it, defamatory.  In those instances, the search engine or more broadly, the referrer, will not be a publisher. As Chief Justices Kiefel and Justice Gleeson reasoned that while “the breadth of activity captured by the traditional publication rule is vast” it is not limitless. 

It is likely the Defteros decision will also apply to other platforms such as websites with links, tweets with links or newsletters with links, where a mere reference—without endorsement or adoption to third party material—will remain content-neutral and the owner will not be found liable as a publisher in defamation.

It is important to note that the search result in this case linking to the Article on The Age was not a paid ad from which Google derived income. Whether the decision in Defteros would apply to paid ads in search results that may be defamatory is undecided, though unlikely.  Justice Gaegler at [69] provided some guidance and referred to the decision in Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 (a case relating to misleading and deceptive conduct, not defamation) that determined when it came to sponsored links where Google is paid to advertise a webpage, its role in disseminating that information is no different to newspaper publishers (whether in print or online) or broadcasters (whether radio, television or online), who publish the advertisements of others.

Whilst the principles of publication are settled, the application to emerging technology and the many “middle-men” that are now involved in dissemination of content will be the subject of ongoing and court scrutiny.  

To read our article on the decision in Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767 click here.