In a much-anticipated judgment, Australia’s High Court, by a 5-2 majority, overturned a Victorian Court of Appeal ruling that found search engine Google was the publisher of a newspaper article defamatory simply because it provided users with a hyperlink to the article in response to a search query.
The decision in Google LLC v Defteros(1) goes some way to bringing Australian law into line with the law of comparable jurisdictions, including Canada.
One of the judges – Judge Gageler – noted that while it was “by no means indisputable” that a hyperlink alone is not enough to make someone a publisher of defamatory content to which they are linked, the The fact that this approach has represented more than a decade in Canada “plays in favor of the acceptance and assimilation of this conclusion” to common law principles in Australia. Justice Gageler said that “the ubiquity of the Internet and the centrality of hyperlinks to its operation” made “consistency in characterizing a hyperlink across common law jurisdictions particularly desirable”.
This case does not give rise to a general rule that a search engine will never be treated as a publisher of defamatory content linked to a search result. Judge Gageler noted that “the provision of a hyperlink could combine with other factors” to reach the conclusion that the linker “participated in the process of publishing” the defamatory content and is therefore a publisher. of this content.
Mr Defteros is a Melbourne lawyer who was the subject of an article in The Age newspaper (both in print and online) referring to criminal charges against him which were later dropped. Google search engine users who used the name Defteros as a search query received a set of search results including the title of the article and a text excerpt:
Underworld loses a valued friend at court -SpecialsGanglandKillings…
www.theage.com.au > Features > Crime and Corruption ▼
Jun 18, 2004 – Pub bouncer turned criminal lawyer George Defteros always boasted that he could avoid a kingpin – The Age Online
A person who clicked on the hyperlink in the title was directed to a copy of the article on The Age website.
Defteros sued Google for defamation in the Supreme Court of Victoria, alleging Google was a defamation publisher of the article.
There was no dispute that the article defamed Defteros, but there was no allegation that anything in the search result itself was defamatory.
The two questions put to the trial court were whether Google’s conduct of providing the hyperlink in response to a search query was sufficient to make it a publisher of the article and, if so, whether Google had defenses available, including the defense of innocent broadcasting.
The trial judge purported to apply established common law principles of defamation to conclude that the provision of a hyperlinked search result is conduct “instrumental” to the communication of the linked web content, and therefore sufficient to make the search engine provider a publisher of such content. The innocent dissemination defense failed on the grounds that Google (which was referred to as a subordinate or secondary publisher) failed to take steps to remove the search result within a reasonable time after being notified by Defteros that the article to which he was linked was defamatory.
The Court of Appeal upheld this decision.
This case came to the High Court less than a year after the Court ruled – in Fairfax Media Publications Pty Ltd v Dylan Voller(2) – that the test of who is a publisher for defamation purposes under Australian law was broad enough to hold administrators of Facebook accounts liable as publishers of third-party posts before they even knew of these publications.
There was no disagreement between the judges of Defteros that the relevant principles were those set out in Voller’s Case; that is, a person who intentionally participates in, assists with, or is instrumental in, or contributes in any way to the process of making defamatory material available for understanding by a third party, is a publisher, regardless of degree of participation.
It is in their application of these principles to the facts at issue that the five majority judges (Chief Justice Kiefel and Justices Gleeson, Gageler, Edelman and Steward) and the two dissenting judges (Justices Keane and Gordon) diverged. The fact that the reasons for the three plurality judgments differed somewhat means that this decision does not advance much the examination of the question of exactly where the line should be drawn when it comes to the question of what which constitutes publication by a search engine for the purpose of defamation.
Kiefel CJ and Gleeson J
In a joint judgment, Chief Justice Kiefel and Justice Gleeson said the case before them exhibited none of the characteristics that had led the Court to Voller to conclude that the defendants were publishers of third-party posts on their Facebook pages:
- Unlike the defendants in Voller, Google “did not provide a forum or venue” where the defamatory content could be posted.
- Google’s provision of the search result, including the hyperlink, “was unrelated to the creation” of the article.
- The article’s creation was “in no way endorsed or encouraged by” Google.
The justices rejected the trial judge’s analogy between a search result and a librarian handing over a marked book to a particular page, and instead referred approvingly to the approach taken by Abella J of the Supreme Court of Canada in Crookes versus Newton(3) to the effect that a hyperlink is essentially a reference to another source which does not in itself constitute a publication of the content to which it refers. The fact that the hyperlink enables a search engine user to directly access the article does not, in itself, make Google “anything other than a referral provider”. To hold otherwise would “extend the principles relating to publication” in a way that was not supported by the existing authority.
Judge Gageler focused on the Court of Appeal’s finding that the search result in this case “triggered” the search engine user to click on the link for more information about Defteros . He said the provision of a hyperlink could combine with other factors to lead to the conclusion that the linker “participated in the process of publishing” the defamatory content and is therefore a publisher of that content, but that the result of the research in this case was not likely to be interpreted in this way.
Judge Gageler’s judgment illustrates the highly factual nature of any consideration of whether a search engine should be treated as the publisher under Australian law of the search results themselves (including snippets) or of the content to which he is linked. He mentioned Google Inc v Duffy(4) – in which the South Australian Supreme Court found that Google was a publisher of both the search results and the content to which they linked – and said the South Australian decision could be better understood to have “enabled the particular content of the search result snippet component”, which, according to the court in that case, had “naturally prompted the reader to click on the hyperlink . . . for more information.” ‘information’. Judge Gageler concluded that the result in Duffy cannot be generalized to the point of indicating that a search result – which will generally include a snippet as well as a hyperlink – will always or even generally work to direct, induce or encourage a search engine user to click on the link for more information.
Edelman and Steward JJ
Like Justice Gageler, Justices Edelman and Steward conceded that a search result may, by its content, be “likely to induce an Internet user to choose a particular third-party web page over others”, and that if so, an inference of a “common intention to publish” could arise. But there was no evidence before the Court of Appeal to support such a conclusion in this case.
The judges also discussed the concept of “incorporation”, on which the trial judge and the Court of Appeal had relied to conclude that the words accompanying the hyperlink in the search results had a sufficient connection closely with the article to be considered “embedded” the content of the article in the search result. The judges noted that this concept was drawn from the judgment of Chief Justice Kourakis in Duffy, but said its application here was unwarranted: any finding that Google was a publisher “by incorporation of content from” the article “has no basis in fact.” It should be noted here that Chief Justice Kiefel and Justice Gleeson stated that the concept of “incorporation by reference” clearly has a place in the law of contract and certain other areas of law, but not in defamation, “which requires that the defamatory meaning be transmitted for publication to be completed”.
This is an area of law that would benefit from legislative reform. While the decision in Defteros decided the question of whether a search result providing a hypertext link to content is in itself sufficient to make a search engine a publisher of that content for defamation purposes, uncertainty remains as to the circumstances that could lead to conclude that the content of the search result (including any excerpt) were likely to induce users to click on the link, making the search engine a participant in the publication process and therefore a publisher.
Just days before this decision was made, the New South Wales Government (on behalf of the Board of Attorneys General) released draft of proposed reforms to the Uniform Defamation Act, which would provide a conditional statutory exemption from liability for “standard search engine functions”. The proposed exemption would not apply to sponsored search results or autocomplete results. If passed, the proposed exemption would bring Australia’s search engine liability law more in line with the law of comparable jurisdictions.
For more information on this subject, please contact Anne Flahvin at Baker McKenzie by telephone (+61 2 9225 0200) or by e-mail ([email protected]). The Baker McKenzie website can be accessed at www.bakermckenzie.com.