Defamation Law Update – Google LLC v Defteros [2022] HCA 27

Defamation Law
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M Marcus
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Defamation – publication – search engine operators – link provided to third party website containing defamatory material

High Court of Australia

This is a significant decision of the High Court concerning the question of whether a party is a publisher of defamatory matter where it publishes links to that defamatory material but the links are not themselves defamatory. In Webb v Bloch (1928) 263 CLR 149, recently affirmed in Fairfax Media v Voller [2021] HCA 27, the High Court held that any act of participation in the communication of defamatory matter by a third party is sufficient to make that participant a publisher for the purposes of the law of defamation. The present case analysed both of those decisions in detail, together with overseas case law.

Webb v Bloch and Voller

In Webb v Bloch, one of the defendants, Mr Bloch, instructed a solicitor to compose a circular that contained information which was untrue and defamatory of the plaintiff, Mr Webb. Mr Bloch knew certain of the contents of the circular to be untrue, one defendant was not aware of the circular's contents but was aware that certain statements in it were untrue, and the other defendants were unaware of either the contents of the circular or whether statements in it were true or false. The majority held all defendants were liable for the publication of the defamatory matter in the circular and the solicitor's malice was also attributed to them.

In Voller, the defendants were media companies, each of which maintained a public Facebook page on which they posted hyperlinks to news stories. The defendants sought commentary upon articles. Applying the principles in Webb v Bloch, the defendants were found to have invited and encouraged comment about the articles from Facebook users. It was the response by some third-party users to that encouragement which contained the alleged defamatory material. It was the defendants' acts in facilitating, encouraging and assisting the posting of comments by the third-party users which rendered them liable as publishers of those comments.

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

The facts

George Defteros is a solicitor who has practised criminal law for many years and who acted for persons who became well-known 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 incitement to murder Carl Williams and others and were committed 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 were placed on that newspaper's website.

In early 2016, Mr Defteros became aware that an internet search of his name using the Google search engine produced search results which included a snippet of an article published by The Age in 2004, on the day after Mr Defteros was charged (referred to as the "Search Result"). The title of the article, displayed in the Search Result, contained a hyperlink to the full article on The Age's website. The article was titled "Underworld loses valued friend at court" (referred to as the "Underworld article"). Together, the Search Result and the Underworld article were said to comprise the "Web Matter" which Mr Defteros claimed defamed him.

At first instance before the Supreme Court of Victoria, Mr Defteros claimed damages for defamation from Google as publisher of the Web Matter. Google denied publication and, in the alternative, pleaded the common law and statutory defences of innocent dissemination and qualified privilege . Relevantly for the purposes of the appeal to the High Court, the primary judge found that Google had published the Web Matter, based on her Honour's view of the significance of the insertion of a hyperlink to The Age website in the Search Result. Google’s appeal to the Court of Appeal was dismissed.

In the High Court, the majority held that the principles in Webb v Bloch and Voller do not apply to Google search results where those results are not themselves defamatory, or to hyperlinks to defamatory web pages accessible via ordinary Google search results.

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

It did not approve the writing of defamatory matter for the purpose of publication. It did not contribute to any extent to the publication of the Underworld article on The Age's webpage. It did not provide a forum or place where it could be communicated, nor did it encourage the writing of comment in response to the article which was likely to contain defamatory matter. Contrary to the finding of the trial judge, the appellant was not instrumental in communicating the Underworld article. It assisted persons searching the Web to find certain information and to access it”.

At [53], their Honours said that the question of whether Google could be said to participate comes down to the assistance provided by the hyperlink to move to another webpage. Their Honours concluded that 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.

Gageler J agreed with Kiefel CJ and Gleeson J, noting (at [69]) that the search result in this case was not of the kind described in Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 as a “sponsored link”, which his Honour said is a form of advertisement created by, or at the direction of, advertisers willing to pay Google for advertising text which directs users to a web site of the advertisers’ choosing. At [73]-[74], his Honour concluded that the critical feature is that the search result is no more than a designedly helpful answer to a user-initiated inquiry as to the existence and location of information on the Internet. By entering a search term into the Google search engine, the searcher looks for matter on a topic of interest to the searcher. By providing a search result, Google indicates where on the Internet that matter may be found. The hyperlink in the search result identifies the webpage on which matter on that topic is located. Having obtained the search result, including the hyperlink and the snippet, it is up to the searcher to decide whether or not to take the further step of clicking on the hyperlink so as to access the webpage. Google does not, merely by providing the search result in a form which includes the hyperlink, direct, entice or encourage the searcher to click on the hyperlink.

Justices Edelman and Steward were also in the majority, although they drew attention to the fact that they dissented in Voller. At [220], their Honours concluded that the critical step that results in publication is that of the person searching and clicking on the chosen hyperlink. The role of Google rose no higher than a mere facilitator because Google had no common intention shared with The Age that the searcher click on the hyperlink to the Underworld article. Their Honours said that Google in no way participated in the vital 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 considering that the case was resolved by an application of the principles in Webb v Bloch and Voller. Justice Gordon stated (at [130]) that after Voller, the rule can be summarised as follows: first, any person who, by an intentional – in the sense of active and voluntary – act, participates, assists or is instrumental in or contributes to any extent to the process directed to making defamatory matter available for comprehension by a third party is a publisher. Her Honour considered that all degrees of such participation amount to publication.

The outcome of the case appears to align this aspect of the common law of Australia to that in jurisdictions such as Canada, England and Wales, and will no doubt 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 otherwise sit between those in Voller and those in this case.

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