A majority of the High Court has held that Google was not the publisher of defamatory material accessed from Google internet search engine results which linked to a webpage on The Age website, containing the defamatory material. In so doing, the majority considered that the link was a navigating tool and that Google did not communicate the defamatory material.

Background

George Defteros is a Melbourne criminal solicitor who acted for persons who became well-known during Melbourne's ‘gangland wars’ including Alphonse Gangitano, Dominic ‘Mick’ Gatto, and Mario Condello. In 2004, Mr Defteros and Mr Condello were charged with conspiracy to murder and incitement to murder Carl Williams, his father George Williams and Carl Williams’s bodyguard. However, in 2005 the Victorian Director of Public Prosecutions dropped the charges against Mr Defteros. In 2016, Mr Defteros became aware that a Google search of his name produced results that included the following, which was known as the ‘Search Result’:

‘Underworld loses valued friend at court -SpecialsGanglandKillings ... www.theage.com.au > Features> Crime & Corruption ▼June 18 2004 – Pub bouncer-turnedcriminallawyer George Defteros always prided himself on being able to avoid a king hit – The Age Online’

The Search Result contained words used in an article published by The Age newspaper in 2004 on the day after he was charged, which article was known as the ‘Underworld article’. The Search Result contained a link to the Underworld Article. While the Search Result did not itself contain defamatory material, Mr Defteros claimed that the Search Result and the Underworld article, which together were termed the ‘Web Matter’, defamed him.

Proceedings below

At first instance in the Supreme Court of Victoria, Richards J found that Google was instrumental in communicating the contents of the Underworld article by the provision of a hyperlink within the Search Result, and, therefore, was the publisher of the Web Matter. Her Honour rejected that any defence applied, and awarded Mr Defteros $40,000 in general damages: Defteros v Google LLC [2020] VSC 219.

Google appealed to the Victorian Court of Appeal (Beach, Kaye and Niall JJA) which upheld Richards J’s decision: Defteros v Google LLC [2021] VSCA 167. Their Honours adopted the test in Webb v Bloch (1928) 41 CLR 331 and concepts of ‘enticement’ and ‘incorporation’ and held that Google lent assistance to the publication of the Underworld article. Their Honours further approved the approach of Hinton J in Google Inc v Duffy (2017) 129 SASR 304 and held that the Search Result enticed a reader to click on the hyperlink to obtain more information about Mr Defteros. Their Honours also approved the approach of Kourakis CJ in Duffy that Google incorporated the content of the Underworld article even in circumstances that the hyperlink or Search Result did not contain the defamatory material ([2022] HCA 27 at [18]).

Appeal to the High Court

Google appealed to the High Court. Its principal ground of appeal was that the Court of Appeal was wrong to conclude that Google published the Web Matter. Mr Defteros contended that Google was the publisher of the Underworld article because:

1. the systems employed by Google, being its ‘web crawler’ program, indexing program and ranking algorithm, provided users access to the Underworld article, and therefore were instrumental to the communication of the defamatory material (at [218]);

2. Google’s search result enticed a searcher to click on the hyperlink contained within it (at [228]); and

3. the Search Result contained defamatory statements and this constituted an ‘incorporation’ of that material (at [234]).

Reasoning of the High Court

The majority comprised Kiefel CJ, Gageler, Edelman, Steward and Gleeson JJ, writing in three separate judgments. Kiefel CJ and Gleeson J considered that the issue of the actual communication of the defamatory matter to the readers was overlooked by the courts below (at [23]). The key question was whether Google, by providing search results, and directing and assisting the searcher to the webpage of The Age, participated in the communication of the defamatory article (at [24]). On this question, their Honours distinguished the factual circumstances of the case before it from Webb v Bloch and Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27. In Webb v Bloch the defendants engaged in the act of approval which was ‘clearly connected to’ the creation of the defamatory matter for the purposes of communicating and distributing it to others and, in Voller, the defendants engaged in encouraging and assisting the posting of comments by the third-party users which resulted in the creation of the defamatory matter as well as facilitating its publication by providing a platform (at [34]).

However, Kiefel CJ and Gleeson J considered that in the present case, the Search Result, including the hyperlink, had no connection to the creation of the Underworld article, which article was not itself approved or encouraged by Google (at [49]). In providing the Search Result, Google was not involved in the communication of the defamatory material (at [49]). Their Honours relied upon an analogy of a person from whom directions are sought as to the location of a periodical containing defamatory matter in a retail outlet. It could not be suggested that the person had communicated the defamatory matter or participated in its communication even if the person directed or escorted the enquirer to the location (at [50]). Kiefel CJ and Gleeson J also agreed with the decision of the Court of Appeal of British Columbia in Carter v BC Federation of Foster Parents Association (2005) 257 DLR (4th) 133 which had held that ‘a reference to an article which does not repeat the defamatory comment itself is not a republication of it’ (at [38]). Their Honours further agreed with Abella J’s observations in the decision of the Supreme Court of Canada in Crookes v Newton, that a ‘hyperlink is contentneutral’ (at [53]) and said that a hyperlink was ‘merely a tool which enables a person to navigate to another webpage’ (at [52]). Their Honours also agreed with Abella J that a search result was fundamentally ‘a reference to something, somewhere else’ and that facilitating an enquirer’s access to the contents of another's webpage could not amount to participation in the bilateral process of communicating its contents to that person (at [53]). Gageler J agreed with the reasoning of Kiefel CJ and Gleeson J. However, his Honour further observed that the question of whether action amounts to enticement or encouragement of that nature was appropriately described as one of ‘fact and degree’ (at [66]). His Honour emphasised that the search result was only a ‘designedly helpful answer to a user-initiated inquiry’ to show existence and location of information on the Internet (at [73]). His Honour further stated that the search result in the present case was an ‘organic search result’ and unlike the search result in Duffy, it did not encourage or entice the readers to click on the hyperlink (at [71]). Rather, it was up to the searcher to make the decision as to whether or not to click on the hyperlink. By providing the hyperlink, Google did not entice or encourage the searcher to click on it (at [74]).

Edelman and Steward JJ also agreed that Google did not publish the Underworld article. Their Honours noted that the article was written by The Age, an independent newspaper over which Google had no influence or control (at [209]). Their Honours considered that Google`s role was a ‘mere facilitator’ as it had ‘no common intention shared with The Age that the searcher click on the hyperlink to the Underworld article’ (at [220]). Therefore, such involvement was insufficient to establish that Google was the publisher (at [212]). Since the majority of the Court held that Google did not publish the Underworld article, it was unnecessary for their Honours to consider Google’s defences of innocent dissemination and qualified privilege.

Keane and Gordon JJ dissented in separate judgments. Keane J held that, for the purposes of the defamation law in Australia, it was sufficient to establish that Google communicated the content of the Underworld article to the user of Google's search engine by ‘facilitating near instantaneous access by hyperlink’ to the publication (at [104]). His Honour stated that Google operated and designed its search engine in the ordinary conduct of Google`s business. There was a ‘symbiotic relationship’ between Google and The Age as each party pursued its intention as an unremarkable part of its ordinary business (at [101]). His Honour considered that the publication of the Underworld article could not have occurred without the assistance intentionally provided by Google in its search engine results (at [98]). Gordon J considered that Google obtained commercial benefit from the search engine, its web crawler and indexing programs for the purposes of identifying, locating and indexing news articles and to rank the results for users (at [108] and [129]). The objective common intention of Google with online news providers such as The Age was established by facilitating access to news articles (at [139]). Therefore, Google intentionally participated in the publication by providing hyperlinks and the fact that users had to click on the hyperlink was irrelevant (at [109]).

Conclusion

Coming so soon after the High Court’s decision in Voller, which itself followed Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25, one does not envy the task which will confront first instance judges and, indeed, juries in navigating the distinctions as to what amounts to publication. BN