In a major win for Google, the High Court has found that the search engine is not liable as a publisher of websites to which it provides hyperlinks in search results for the purposes of defamation law.

A majority of judges held in Google LLC v Defteros that the provision of a hyperlink in Google’s search results to a defamatory article did not amount to the search provider facilitating, encouraging, or endorsing the article.

In a joint judgment, Kiefel CJ and Gleeson J stated:

‘The provision of a hyperlink in the Search Result merely facilitated access to the … article and was not an act of participation in the bilateral process of communicating the contents of that article to a third party.’

The High Court’s decision provides clarity for internet intermediaries, and brings Australian defamation law with respect to hyperlinks into line with overseas authorities, including in the UK and Canada.

Background

Defteros, a Melbourne based solicitor, was successful at first instance, after Google declined to take down a story which he claimed had defamed him.  In 2004 Defteros had been charged with conspiracy and incitement to murder members of Melbourne’s underbelly including the infamous Carl Williams, which was widely reported on.  However, the charges were dropped in 2005.

In 2016, Defteros approached Google to have search results which contained a hyperlink to an article about the charges removed, but Google declined to do so.

Defteros commenced proceedings against Google, claiming that by providing a hyperlink to the article, Google was a publisher of the defamatory material contained in the article.  Google denied that it was a publisher, arguing that the search engine functions were automated, and no intentional communication of the material had occurred.

The Victorian Supreme Court found that Google was a secondary or subordinate publisher of the article and awarded Defteros $40,000 in damages.  This finding was upheld by the Court of Appeal, which held that the innocent dissemination defence was not available to Google after Google was notified that the article was defamatory.

Decision of the High Court of Australia

Writing for the majority, Kiefel CJ and Gleeson J stated it would not be necessary to consider the defences as ‘it cannot be concluded that the appellant, by providing the hyperlink, published the [article]’.

The High Court distinguished the present case from previous high profile decisions, stating that:

‘In Webb v Bloch, the defendants approved the creation of the defamatory material for the purpose of its distribution and, in Voller, the defendants encouraged the creation of the alleged defamatory matter.  In Voller the defendants additionally facilitated its publication by providing a platform for its communication.’

Conversely, in the current proceeding, it was held that the hyperlink and search result bore no connection to the creation of the defamatory article.  Google did not participate in the original publication, nor did they approve or endorse the article, nor encourage users to click on the hyperlink.

Kiefel CJ and Gleeson J went on to state:

‘A search result is fundamentally a reference to something, somewhere else. 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.  To hold that the provision of a hyperlink made the appellant a participant in the communication of the … article would expand the principles relating to publication.’

Though Gaegler J ultimately agreed with the reasons of Kiefel CJ and Gleeson J, his Honour hypothesised that there may be circumstances where, in conjunction with other factors, a hyperlink might amount to participation in the process of publication on a website.  It is possible that a hyperlink in a sponsored search result would have been considered differently to a hyperlink in an organic search result.

Edelman and Steward JJ also agreed with the reasons of Kiefel CJ and Gleeson J, opining ‘the inclusion of words or phrases accompanying the hyperlink does not… demonstrate an adoption of… the contents of a given webpage – unless some language of adoption or words that show the taking of responsibility are displayed in the search result.’

Keane J and Gordon J were in dissent, finding that Google participated in the publication of the article to users of its search engine for the purposes of defamation law.  Gordon J adopted the position taken by the majority in Voller stating ‘having taken action to obtain a commercial benefit by creating and operating a search engine that facilitates access to news articles, [Google] cannot deny that it is involved in the publications of those news articles’.

Conclusion

The law still has a long way to go in striking a balance between freedom of information and an individual’s right to reputation in an online context.  However, the Defteros judgment is an encouraging indication that the courts’ are listening and considering the appropriateness of applying historical common law decisions in the internet age.

The High Court’s decision realigns Australian authority with respect to liability for hyperlinks with that in overseas jurisdictions, such as the UK and Canada, after a period of divergence.

The decision is also consistent with recommendations made last week in relation Stage 2 of the defamation law reform process, which focuses on internet intermediaries.

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