Google not liable for defamatory hyperlinks in case with freedom of expression implications

Google LLC v Defteros [2022] HCA

By a majority, the High Court of Australia has found Google not liable in defamation when it hyperlinked defamatory material on its search engine. In doing so, the Court found that Google had not acted as the publisher of that material. 

Facts

The Respondent, George Defteros is a solicitor who acted for several well-known persons during Melbourne’s “gangland wars” including Dominic Gatto and Mario Condello.

In 2004, the Respondent and Mr Condello were charged with conspiracy to murder, and incitement. In 2005, the prosecution withdrew charges against the Respondent, which was widely reported across the media including in The Age.

The Appellant, Google LLC became aware that when the Respondent’s name was entered into Google, it produced results that included a preview of an Article published by The Age. The Article titled “Underworld loses valued friend at Court” was displayed in the search result and contained a hyperlink to the full Article published (the Search Result).

Mr Defteros later requested that the Appellant remove the Search Result, however, Google refused.  Mr Defteros then issued a concerns notice (the Notice) to Google. In the Notice, Mr Defteros alleged that Google was the publisher by way of the Search Result.

Mr Defteros later commenced proceedings in the Supreme Court of Victoria alleging that the Article was defamatory to him and claiming that by publishing the Search Result, Google had acted as publisher. 

Trial decision

At trial, the primary judge found that Google had acted as publisher of the Search Result.

This finding was based on her Honour’s view as to the significance of the insertion of the hyperlink to The Age in the Search Result. Her Honour found that the Search Result “conveyed the defamatory imputation that the Respondent had crossed the line from being a professional lawyer for, to become a confidant and friend of, criminal elements”.[1] To this end, the Court awarded $40,000, plus interest and costs.[2]

The Appellant appealed to the Court of Appeal which upheld the decision in May 2021.[3] Google later sought special leave to appeal the decision to the High Court of Australia.

Decision

In a 5-2 majority, the High Court found that Google was not liable for defamation.

In reaching their conclusions, the majority and minority (Chief Justice Kiefel, Justices Gleeson, Edelman, Steward and Gageler; Justices Keane and Gordon dissenting) considered the common law principles of defamation concerning publication. Common intention, the effect of the Notice and the principle of incorporation were also considered.

Publisher or facilitator?

Chief Justice Kiefel and Justice Gleeson found that Google was not instrumental in communicating the Article. Their Honours justified this by noting that Google did not approve or encourage the creation of the Article in any way. Whilst their Honours conceded that Google assisted in a search of the web, they held that the publication of the Search Result and inclusion of the hyperlink had no connection with the creation of the Article. 

In dissent, Justice Keane opined that Google’s search engine could not be accurately described as a passive instrument through which publishers conveyed information. In coming to this conclusion, Justice Keane focused on Google’s active ranking of responses to searches in terms of relevance. Therefore, his Honour found that whilst Google did not contribute to the content of the Article, it intentionally brought the Article to the attention of its users.

Common Intention

Justices Edelman and Steward determined that for Google to be liable for defamation, it must have had a common intention to publish the Article with The Age. Yet, their Honours concluded that Google was no more than a mere facilitator.

In minority, Justice Gordon opined that Google shared an objective common intention with The Age being to facilitate access to news articles. Her Honour thought the same intention was demonstrated by Google through their tailoring of search engine systems to specifically identify and rank news articles based on relevance to the user’s search.

The Notice

Defteros submitted that Google’s failure to remove the hyperlink after being notified that the Article was defamatory was relevant in establishing publication. Chief Justice Kiefel and Justice Gleeson found that having notice of the existence of defamatory content and not removing the content would not constitute publication.

Principle of Incorporation

Previously, the Victorian Court of Appeal relied on the principle of incorporation in finding that Google was liable for defamation. In doing so, they found that the Article was incorporated into the Search Result on the basis that the words appearing alongside the hyperlink contained enough information about the contents of the Article as to constitute a publication. In consideration of this, Justices Edelman and Steward noted that Google generated these selections of words to give the searcher an idea of the contents of a webpage. Their Honours concluded that publication of those words could not equate to the publication of the entire contents of the Article.

Commentary

Protection for a person’s reputation[4] is a restriction on the right to freedom of expression. 

The High Court cited with approval the judgment of Justice Abella in Crookes v Newton,[5] (Crookes) a Canadian Supreme Court (CSC) defamation case. In Crookes, Mr Newton operated a website that contained commentary on issues such as free speech. One of the articles posted contained a hyperlink to other websites which allegedly contained defamatory materials. 

The High Court stated that considerations in the Crookes decision arising from the Canadian Charter of Rights were aspects of the reasons it could not follow.  These included “the public interest in protecting freedom of expression”.[6]  However, it noted that Justice Abella had referred to those considerations to confirm the correctness of her reasoning, which was that hyperlinks are references and do not constitute publication.[7]

Defteros highlights that a search engine result with a hyperlink to defamatory material is not a publication (expression) of that defamatory material and therefore not subject to restriction.

This case note was authored by lawyers from Hall & Wilcox.

[1] Defteros v Google LLC [2020] VSC 219 at [139(a)], [146], [290(b)].

[2] Ibid [5]-[7].

[3] Defteros v Google LLC [2021] VSCA 167.

[4] Article 19(3)(a), International Covenant on Civil and Political Rights

[5] Crookes v Newton [2011] 3 SCR 269.

[6] Ibid [31].

[7] Google LLC v Defteros [2022] HCA 27 [42].