Google LLC v Defteros [2022] HCA 27

Defamation – publication – search engine operator – link provided to third party website containing defamatory material – Google is not a “publisher” of defamatory material by providing a hyperlink to the defamatory article found on a third-party website, in response to a search for the name of Mr Defteros

This is a significant High Court decision regarding the question of whether a party is a publisher of defamatory material where it publishes links to that defamatory material but the links are not themselves defamatory. In Webb vs. Bloch (1928) 41 CLR 331, recently affirmed at Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, the High Court held that any act of participation in the communication of defamatory matter by a third party was sufficient to make that participant a publisher for the purposes of the law of defamation. The present case examines both decisions in detail, together with foreign case law.

Webb vs. Bloch and Voller

In Webb vs. Bloch, one of the defendants, Mr Bloch, instructed a lawyer to draw up a circular containing information which was false and defamatory of the plaintiff, Mr Webb. Mr Bloch knew that certain of the contents of the circular were untrue, one defendant did not know the contents of the circular but he knew that certain statements in it were untrue, and the other defendants did not know any of contents of the circular or whether the statements therein are true or false. The majority held that all defendants were responsible for publishing the defamatory matter in the circular and that the attorney’s malice was also imputed to them.

In Voller, the defendants were media companies, each of which maintained a public Facebook page where they posted hyperlinks to news stories. The defendants sought comment on the articles. Applying the principles to Webb vs. Bloch, the defendants were found to have invited and encouraged comment about articles from Facebook users. This is the response of some third-party users to that encouragement containing allegedly defamatory material. Defendants’ actions in facilitating, encouraging and aiding the posting of comments by third-party users made them the publishers of those comments.

It is against this background that the High Court considered whether Google is a publisher of defamatory material published on a third party website.

The facts

George Defteros is a solicitor who practiced criminal law for many years and acted for prominent figures during Melbourne’s “gangland wars”, including Dominic (“Mick”) Gatto and Mario Condello. In 2004, Mr Defteros and Mr Condello were charged with conspiracy to murder and inciting the murder of Carl Williams and others and promised to stand trial. In 2005, the Director of Public Prosecutions withdrew the charges against Mr Defteros. In the intervening period, the prosecution of Mr Defteros and Mr Condello was widely reported, including in The age newspaper, and articles are placed on that newspaper’s website.

In early 2016, Mr Defteros found that an internet search of his name using the Google search engine produced search results that included a snippet of an article published by The age in 2004, the day after the case Mr Defteros (referred to as “Search Results”). The title of the article, displayed in the Search Results, contains a hyperlink to the full article at The agewebsite of The article is titled “Underworld loses valued friend at court” (referred to as the “Underworld article”). Together, the Search Result and the Underworld article are said to constitute “Web Matter” that Mr Defteros claims defames him.

In the first instance before the Supreme Court of Victoria, Mr Defteros claimed damages for defamation from Google as the publisher of Web Matter. Google denied publication and, alternatively, pleaded the common law and statutory defenses of innocent dissemination and qualified privilege. Relevant for the purposes of the High Court appeal, the primary judge found that Google had published the Web Matter, based on his Honor’s view of the importance of placing a hyperlink on The age website in Search Results. Google’s appeal to the Court of Appeal was dismissed.

In the High Court, the majority held that the principles at Webb vs. Bloch and Voller does not apply to Google search results where those results are not themselves defamatory, or to hyperlinks to defamatory web pages accessible through ordinary Google search results.

Kiefel CJ and Gleeson J found (at [49]) that Google cannot be said to be involved in the communication of defamatory material. Their Honors said of Google’s role:

It does not approve the writing of defamatory material for the purpose of publication. It did not contribute to any extent to the publication of the Underworld article on The Age webpage. It does not provide a forum or place where it can be communicated, nor does it encourage writing a comment in response to an article that is likely to contain defamatory material. Contrary to the trial judge’s finding, the appellant was not instrumental in communicating the Underworld article. It helped people searching the Web to find some information and access it”.

In [53], their Honors said that the question of whether Google could be said to participate came down to the assistance provided by the hyperlink to move to another webpage. Their Honors decided that a “A search result is basically a reference to something, somewhere else. Facilitating one person’s access to the contents of another’s webpage is not participating in the bilateral process of communicating its contents to that person.”

Gageler J agreed with Kiefel CJ and Gleeson J, citing (at [69]) that the search result in this case is not of the type described in Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 as a “sponsored link”, which his Honor said was a form of advertisement created by, or directed by, advertisers willing to pay Google for advertising text that directs users to a advertisers’ web sites. choice. In [73]-[74], his Honor concluded that the critical feature was that the search result was no more than a designed helpful answer to a user-initiated inquiry about the availability and location of information on the Internet. By entering a search term into the Google search engine, the searcher finds something on a topic of interest to the searcher. By providing a search result, Google indicates where on the Internet to find that item. A hyperlink in a search result identifies the webpage where the matter on that topic is located. After obtaining the search result, including the hyperlink and the snippet, it is up to the searcher whether or not to take the additional step of clicking on the hyperlink to access the webpage. Google does not, simply by providing a search result in a form that includes a hyperlink, direct, entice or encourage the searcher to click on the hyperlink.

Justices Edelman and Steward were also in the majority, although they noted the fact that they dissented from Voller. In [220], their Honors concluded that the critical step resulting in publication is the person searching for and clicking on the selected hyperlink. Google’s role rises no higher than that of a mere facilitator because Google has no common intention to share The age that searcher clicks on the hyperlink to the Underworld article. Their Honors said that Google in no way participates in the essential step of publication without which there could be no communication of defamatory material – namely the searcher’s decision to click on the hyperlink of a particular result.

Justices Keane and Gordon dissented, each holding that the case was resolved by application of the principles in Webb vs. Bloch and Voller. Justice Gordon (at [130]) that after Voller, the rule can be summarized as follows: first, any person who, through an intentional – in the sense of active and voluntary – acts, participates, helps or is helped in or contributes to any extent in the process directed to making destructive material available for the understanding of a third party is a publisher. His honor considered that all levels of such participation amounted to publication.

The outcome of the case appears to align this aspect of Australian common law with jurisdictions such as Canada, England and Wales, and will undoubtedly be a relief for search engine operators. However, search engine operators may still be found liable as publishers where, for example, sponsored links are involved, where the hyperlinks themselves communicate defamatory material, or where the facts of the case lie between those in Voller and those in this case.