Google LLC v Defteros
High Court of Australia · 2022
Google LLC v Defteros [2022] HCA 27
Search a person's name and one result shows the headline of a 2004 newspaper article later found to be defamatory of him, with a link to it. Is the search engine a publisher of that article?
In New South Wales, s 10D(1) of the Defamation Act 2005 (NSW) provides that a search engine provider is not liable for defamation for the publication of digital matter comprised of search results if its role was limited to providing an automated process for the user to generate the results, or for the publication of digital matter to which a search result provides a hyperlink if its role is limited in the same way. A search result is a result limited to identifying a webpage by reference to its title, a hyperlink, an extract or an image (s 10B). Section 10D(2) takes out search results, and matter to which they link, to the extent the results are promoted or prioritised because of a payment or other benefit given to the provider by or on behalf of a third party, and s 10D(3) applies the exemption whether or not the provider knew, or ought reasonably to have known, the matter was defamatory. Under Sch 4 cl 9 the digital intermediary amendments, which commenced on 1 July 2024, apply to a cause of action accruing after their commencement; the existing law continues to apply to a cause of action accruing before commencement, and to a later cause of action only where it is one of two or more causes of action in proceedings commenced by a plaintiff, each for the publication of the same or substantially the same matter on separate occasions, at least one accrued before commencement, and it accrued no later than 12 months after the earliest of those (cl 9(3)). For a cause of action to which the amendments apply, a claim against a search engine provider in New South Wales is therefore decided under s 10D as well as by the reasoning in Defteros on publication; where the amendments do not apply, the existing law continues to govern. The position in other jurisdictions depends on their own Acts.
In Queensland, s 10D of the Defamation Act 2005 (Qld) is in the same terms as the New South Wales provision: a search engine provider is not liable for defamation for the publication of digital matter comprised of search results if its role was limited to providing an automated process for the user to generate the results, or for the publication of digital matter to which a result provides a hyperlink if its role is limited in the same way (s 10D(1)). The exemption does not apply to the extent results are promoted or prioritised because of a payment or other benefit given to the provider by or on behalf of a third party (s 10D(2)), and it applies whether or not the provider knew, or ought reasonably to have known, the matter was defamatory (s 10D(3)). Under s 52 the digital intermediary amendments apply to a cause of action accruing after their commencement; the existing law continues to apply to a cause of action accruing before commencement, and to a later cause of action only where it is one of two or more causes of action in proceedings commenced by a plaintiff, each for the publication of the same or substantially the same matter on separate occasions, at least one accrued before commencement, and it accrued no later than 1 year after the earliest of those (s 52(3)). For a cause of action to which the amendments apply, a claim against a search engine provider in Queensland is therefore decided under s 10D as well as by the reasoning in Defteros on publication; where they do not apply, the existing law continues to govern. The position in other jurisdictions depends on their own Acts.
What happened?
George Defteros is a solicitor who practised criminal law. In 2004 he and Mario Condello were charged with conspiracy to murder and incitement to murder and were committed to stand trial, and in 2005 the Director of Public Prosecutions withdrew the charges against him ([1]). The Age published an article, "Underworld loses valued friend at court", on the day after he was charged ([2]).
In early 2016 he found that an internet search of his name on Google produced a search result with the article's title as a hyperlink, a snippet and the address of The Age's page ([2], [13]). The search result was not itself said to be defamatory: the respondent accepted that no part of it otherwise involved the publication of defamatory material (Edelman and Steward JJ at [181]). He sued Google for defamation as publisher of the search result and the article together ([2]-[3]).
The primary judge, Richards J, found that Google had published the matter, based on her view of the significance of the hyperlink in the search result ([4]). Only the statutory defence of qualified privilege succeeded, and only for a substantial proportion of the people to whom the matter was published; she awarded general damages of $40,000 ([4]). The Court of Appeal of Victoria (Beach, Kaye and Niall JJA) granted leave and dismissed Google's appeal ([6]), holding that Google became a publisher of the article seven days after it was notified of the defamatory matter ([18]). Google appealed to the High Court by special leave, its principal ground being that the Court of Appeal was wrong to conclude that it published the matter ([7]-[8]).
What did the Court decide?
The High Court allowed Google's appeal by five Justices to two. Kiefel CJ and Gleeson J, Gageler J, and Edelman and Steward JJ would have allowed it ([56], [75], [241]); Keane J ([105]) and Gordon J ([173]) would have dismissed it with costs.
The orders set aside order 2 of the Court of Appeal's orders of 17 June 2021 and in its place allowed the appeal, set aside order 1 of the primary judge's orders of 6 May 2020 and ordered judgment for the defendant, set aside order 1 of her orders of 3 June 2020, and ordered Google to pay the respondent's costs of the appeal ([56]).
Proposition
What is the principle?
By five Justices to two, the High Court held that Google was not a publisher of a newspaper article when it provided a search result containing a hyperlink to that article, the words of the search result not being themselves defamatory. Kiefel CJ and Gleeson J, in joint reasons, accepted that "any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher" ([21]), but held that Google did not approve the writing of the matter, did not contribute to its publication on The Age's webpage, did not provide a forum where it could be communicated and did not encourage comment likely to contain defamatory matter ([49]); "Facilitating a person's access to the contents of another's webpage is not participating in the bilateral process of communicating its contents to that person" ([53]). Gageler J agreed with their conclusion and reasons ([59]) and added that an organic search result is "no more than a designedly helpful answer to a user-initiated inquiry" ([73]), while accepting that a hyperlink might combine with other factors, such as enticing or encouraging a third party to click, to amount to participation ([66]). Edelman and Steward JJ, in joint reasons, reached the same result by asking whether Google shared with The Age a common intention to publish the article, and held that it did not ([213]-[214], [219]). Notice of the defamatory matter did not make Google a publisher: Kiefel CJ and Gleeson J said notice may be relevant to knowledge in the defence of innocent dissemination but is not relevant to whether defamatory material is published ([55]), and Edelman and Steward JJ held the inaccurate removal request insufficient to make Google a publisher ([239]). Keane J ([77], [104]) and Gordon J ([109]) dissented, each holding that Google published the article.
Why does this case matter?
Problem questions about search engines, link-sharing sites, aggregators and forums invite two quick answers: that anyone whose service makes defamatory matter easier to find is a publisher, or that an online intermediary carries no responsibility for what others write. Neither shows the examiner that the facts have been tested. The marks go to identifying what the particular defendant actually did, saying how that conduct connects to the communication of the matter, and keeping that question apart from the defences that follow it. A student who moves straight to innocent dissemination has skipped the step on which the High Court divided.
Exam and application relevance
The decision concerns a search result whose own words were not defamatory ([181]). Kiefel CJ and Gleeson J accepted that search results may themselves contain defamatory matter ([23]), and they noted that Deschamps J's more nuanced approach to different kinds of hyperlinks was not pursued by the respondent and was not the subject of findings by the trial judge ([46]).
Where a defendant's conduct goes beyond providing a result, state the added conduct and test it against the participation question. Gageler J said that the outcome in Duffy turned on the content of the snippet there and could not be generalised ([68]); Edelman and Steward JJ left open hyperlinks promoted by agreement with a third party ([222]) and accepted that content likely to entice a searcher might support an inference of common intention ([229]).
Kiefel CJ and Gleeson J ([9]) and Edelman and Steward JJ ([240]) found it unnecessary to consider the defences of innocent dissemination and qualified privilege, so the majority reasons do not decide whether those defences would have succeeded for Google; Gordon J addresses them in dissent ([113]-[114]).
Where a statutory exemption for search engine providers applies, state it with the common law analysis.
Check your understanding
1. At [34], Kiefel CJ and Gleeson J say that Webb v Bloch and Voller each had a feature that the present case lacks. What are the features, and what additional feature did Voller have? 2. Which Justices decided the case by asking whether Google shared a common intention with The Age to publish the article, and what did they conclude about Google's role ([213], [219]-[220])? 3. What does [55] say about the relevance of notice to the question whether defamatory matter is published, and what did Edelman and Steward JJ say at [239] about the removal request? 4. What did Keane J ([77]) and Gordon J ([109]-[110]) rely on in holding that Google published the article? 5. What did Gageler J say at [66] and [68] about the circumstances in which a hyperlink might amount to participation, and how did he explain the outcome in Duffy?