A majority of the High Court held that Google LLC (“Google”), by providing the hyperlink, had not published the defamatory matter in question. This is another important decision in the area of defamation, which has seen a number of high-profile decisions handed down in recent years dealing with online publications and the ever-evolving digital era in which members of the public communicate online and consume news via social media.
This most recent decision of the High Court originated as a claim for damages for defamation brought in the Victorian Supreme Court by Mr Defteros, an experienced criminal law solicitor. He contended that the appellant in the High Court, Google, had been the publisher of certain web matter which he claimed defamed him. In particular, The Age newspaper had placed a number of articles on its website which reported on Mr Defteros having been charged in 2004 with conspiracy to murder and incitement to murder, which charges were later withdrawn by the Director of Public Prosecutions in 2005.
Mr Defteros contended that Google was the publisher of the web material by virtue of the fact that in early 2016 an internet search of his name using the Google search engine, had produced search results which included a snippet of an article published by The Age in 2004, on the day after Mr Defteros was charged (“the Search Result”). The title of the article, “Underworld loses valued friend at court”, was displayed in the Search Result which contained a hyperlink to the full article on The Age‘s website.
Mr Defteros was successful in the Victorian Supreme Court, which found that Google had indeed published the web matter which conveyed a defamatory imputation about Mr Defteros, and awarded him $40,000.00 in general damages. The trial judge’s decision placed significance on the insertion of a hyperlink to The Age website in the Google Search Result. The Court of Appeal dismissed Google’s appeal.
The Justices of the High Court delivered several separate judgments, with Chief Justice Kiefel and Justice Gleeson penning the majority judgment, concurred with by Justice Gageler who added additional reasons for reaching the conclusion that Google was not a publisher of the defamatory material contained in the article on The Age’s website, in a separate concurring judgment. Justices Edelman and Steward also produced separate reasons in which they agreed with the orders proposed by Chief Justice Kiefel and Justice Gleeson.
Chief Justice Kiefel and Justice Gleeson endorsed the detailed description by the trial court of the operation of, and results obtained from, Google’s search engine in the context of the World Wide Web. They pointed out that the difficulty in this case did not arise from any uncertainty as to the principles concerning the publication of defamatory matter. Indeed, the Justices pointed out that the Court had in the recent decision of Fairfax Media Publications Pty Ltd v Voller  HCA 27 (“Voller”) re-affirmed the principles relating to the publication of defamatory matter which had been stated by it almost one hundred years ago in Webb v Bloch  HCA 50.
Noting that the breadth of activity captured by the traditional publication rule is vast, and recognising that it is of course possible that search results may themselves contain matter which is defamatory, as was acknowledged in the Court’s earlier decision in Trkulja v Google LLC  HCA 25, the majority made it clear that it was not the case in this instance that Google as an internet search engine operator, had actually communicated the defamatory material. Rather the issue in question was whether by providing search results which, in response to a user-designed enquiry, directed the attention of the user to the webpage of another and assisted them in accessing it, amounts to an act of participation in the communication of defamatory matter.
The Justices went on to say that the publication of the defamatory matter in this instance is best understood as occurring by the communication of the article on The Age‘s webpage to persons accessing that webpage. They held that it could not be said that Google was involved in the communication of the defamatory material, as these principles had been developed in the cases referred to above. Google did not contribute in any way 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 (as was the case in Voller). The Justices therefore disagreed with the trial judge and found that Google was not instrumental in communicating the article. It merely assisted persons searching the Web to find certain information and to access it. The Search Result, which contained a neutral hyperlink, was, held the majority, fundamentally a reference to something, somewhere else and not a communication of the contents of the webpage.
The Justices compared Google’s role to the hypothetical scenario where a person from whom directions are sought as to where a periodical might be obtained from a retail outlet, gives directions or even escorts the enquirer to the place of sale of the periodical, and pointed out that it could hardly be said that that person communicated or participated in the communication of any defamatory material contained in the periodical.
Justices Edelman and Steward, echoing Chief Justice Keifel and Justice Gleeson’s rejection of contention that the Search Result “enticed” the user to open the webpage, pointed out that Google does not ordinarily write, authorise or have prior knowledge of the content it indexes. It has no common intention with the author of that content that it be published and does not encourage an internet user to click on any particular search result.
The majority distinguished this case from the situation in Voller. In that case the defendants were media companies which each maintained a public Facebook page on which they posted hyperlinks to news stories, with an associated headline, comment and image. Clicking on the hyperlink took the reader to the news story on the defendant’s website. But it was not these acts which were said to involve the defendants in publication of the alleged defamatory material; rather it was what the defendants did in seeking commentary upon the articles which brought them within the ambit of a publisher. The defendants in Voller were found to have invited and encouraged comment about the articles from Facebook users. It was the response by some third-party users to that encouragement which contained the alleged defamatory material. It was the defendants’ acts in facilitating, encouraging and assisting the posting of comments by the third-party users which rendered them liable as publishers of those comments.
It was therefore the acts of approval and encouragement by the defendants in Voller that were clearly connected to the creation of the matter in question, and additionally the provision of a place for publication that attracted liability as a publisher. As alluded to above, it was these features which the majority found were absent in Defteros.
While this may seem like a fine and at times perhaps difficult line to draw, it is clear that a court will consider factors such as intention, invitation, encouragement and facilitation when considering whether the publication element of a defamation claim has been established. Mere neutral hyperlinks to allegedly defamatory subject matter, as opposed to the actual content contained in the search engine results, is likely to be insufficient to establish the publication element.
This is a significant victory for search engine operators. This is not to say however that a search result could never lead to liability for a search engine operator. As mentioned, the High Court has previously recognised that the search results themselves containing defamatory material could give rise to liability. So too if the elements of encouragement, enticement or facilitation are present. Each case will have to be considered on its facts before instituting a claim for defamation.
Finally, it is noteworthy that the decision in Defteros comes at a time when Stage two of the review of the Model Defamation Provisions is currently underway and will focus on amongst other issues, the responsibilities and liability of digital platforms for defamatory conduct. It is likely therefore that we may see further amendments to the Defamation Act 2005 (Qld) in the near future, dealing with some of the issues grappled with by the High Court in Defteros.
Marino Law has extensive experience acting for both plaintiffs and defendants in defamation proceedings. Our highly experienced litigation lawyers can assist you if you believe you have been defamed by another or, have recently received a concerns notice.
Should you require assistance in any of the above areas, please contact one of our highly experienced litigation lawyers.