High Court creates new uncertainties in Defamation Law

22 August 2022

On Wednesday 17 August 2022, the High Court of Australia handed down its decision on Google LLC v Defteros. Overturning the previous decision of the Supreme Court of Victoria Court of Appeal, a 5 – 2 majority of the High Court found that Google, in facilitating through its search engine a hyperlink to a news article containing defamatory material, did not itself publish defamatory material.

However, the 4 written judgements delivered by the majority provide varied views on why Google was not a publisher and dismissing widely held common law precedent.

Proceedings were initiated in 2020 when Melbourne lawyer George Defteros brought an action against Google in the Supreme Court of Victoria. The subject of the action was an article published in The Age in June 2004 which detailed the criminal underworld connections of Mr Defteros and suggested he “crossed the line from professional lawyer to confidant and friend of criminal elements”. The article also referenced the criminal charges for conspiracy to murder and incitement to murder brought against Mr Defteros by the Director of Public Prosecutions in 2004 but did not reference the fact that these charges were subsequently dropped.

In February 2016, a solicitor employed by Defteros Lawyers submitted a ‘removal request form’ to Google, in which they claimed information within the article was defamatory and that proceedings brought against The Age in 2007 had resulted in a settlement at mediation. The terms of the settlement, according to the removal request form, included the deletion of the article. This claim was in fact false, and no such settlement nor proceedings against The Age had ever occurred. Google decided not to remove the article from its search engine results.

Mr Defteros claimed that by failing to remove the article from its search engine and by enabling hyperlinks to the article to be provided to search engine users, Google had engaged in the publishing of the defamatory material. The Supreme Court of Victoria found in favour of Mr Defteros, with both the trial judge and appellate court agreeing that the providing of the hyperlink to search engine users amounted to the publishing of defamatory material. Google was ordered to pay $40,000 to Mr Defteros.

In Wednesday’s judgment, Chief Justice Susan Kiefel and Justice Jacqueline Gleeson found that Google had not contributed “in any extent” to the publication of the article on The Age‘s website and that a search result on Google merely “conveys to the person searching that they may be interested in one or more of the results”. According to Kiefel and Gleeson, the distinction between the drawing of one’s attention to an article and the communicating of its content as drawn in the Canadian case of Crookes v Newton applied. On the issue of Google being notified of the potentially defamatory content of the article, Kiefel and Gleeson maintained that Google’s decision not to remove the reference to the article was only relevant to the question of publication. Given they were of the view that Google was not a publisher, the issue was disregarded. Justice Stephen Gageler agreed with the decision of Kiefel and Gleeson, concluding that Google was not a publisher of defamatory material contained within the article and 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”. His Honour drew a distinction between the current case and Google Inc v Australian Competition and Consumer Commission, in which Google provided a ‘sponsored link’ to users for which they received revenue.

Justice James Edelman and Justice Simon Steward also found that Google’s role in providing search results to users “rose no higher than that of mere assistance or facilitation” and that Google “in no way participated in the vital step of publication without which there could be no communication of defamatory material”. In line with Kiefel, Gleeson and Gageler, Edelman and Steward found that Google had not published the article, hence they considered it unnecessary to consider Google’s defences of innocent dissemination and qualified privilege.

In her dissenting opinion, Justice Michelle Gordon found that Google did in fact publish the article and that “to conclude otherwise is contrary to the strict publication rule” affirmed by the High Court of Australia in Fairfax Media Publications Pty Ltd v Voller (as discussed in HWL Ebsworth’s previous article here). Her Honour discussed at length the structure and operation of Google’s search engine, including the ‘web-crawler program’, the ‘indexing program’ and the series of algorithms that govern its operation. The action of these components, in her Honour’s view and with reference to Webb v Blochi, amounted to an “active and voluntary participation in the process that is in fact directed to making matter available for comprehension by a third party”. Her Honour concluded that the defence of innocent dissemination and qualified privilege were not made out, nor was the defence of statutory qualified privilege within s30 of the Defamation Act 2005 (Vic).

Justice Patrick Keane agreed with Gordon’s dissent, finding in favour of Mr Defteros. According to Keane, “through the hyperlinks provided by Google, users were thereby enabled to have direct and nearly instantaneous access to the Underworld article”. This, in his Honour’s opinion, was intended by Google through the action of deliberate algorithms within the search engine. Adopting the words of Ribeiro PJ in the Hong Kong case of Oriental Press Group Ltd v Fevaworks Solution Ltd, his Honour considered the actions of Google “intentionally assisted in the process of conveying the words bearing defamatory meaning to a third party”. Further, Keane opined that “the publication of defamatory material, which occurred when a user of Google’s search engine gained access to the Underworld article, occurred by reason of the assistance intentionally provided by Google in the course of its business. That publication would not have occurred but for Google’s facilitation”.

The decision of the High Court of Australia comes in the wake of a series of recent reforms to defamation law. Although the commencement of the Model Defamation Amendment Provisions 2020 in July 2021 and the changes made within were not considered in this case, they are a poignant reminder of the rapid changes in the defamation space and the importance of staying up to date.

The decision clearly provides protection to search engines such as Google which may create its own difficulties when trying to deal with defamatory material available on the internet. However, what this decision may now create is great uncertainty over what constitutes liability for facilitating or providing ‘notice’ of defamatory material and the liability it entails.

This article was reviewed by Nicholas Pullen, Partner and written by Tom Alexander, Law Graduate. 

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