Google LLC v Defteros [2022] HCA 27

16 Nov Google LLC v Defteros [2022] HCA 27

In this case, the High Court found that Google is not responsible for publishing defamatory material which a member of the public locates using the Google search engine.

Facts

George Defteros was a solicitor practising criminal law. During his career, Mr Defteros acted for individuals connected with Melbourne’s gang wars including Dominic Gatto and Mario Condello. In 2004, Mr Defteros and Mr Condello were charged with conspiracy to murder and incitement to murder Carl Williams. In 2005, the charges against Mr Defteros were withdrawn by the Director of Public Prosecutions. During the time that the charges against both Mr Defteros and Mr Condello were in place, the prosecution was widely reported including by The Age newspaper. In 2016, Mr Defteros found a snippet of an article published by The Age in 2004 by searching his name on Google’s search engine (“search result”). The title of the article as shown on Google’s search engine was ‘Underworld loses valued friend at court’, and by clicking on the title, you would be redirected to the full article (“Underworld article”). The search result and the Underworld article made up the “web matter” containing the alleged defamatory material. The defamatory imputation was that Mr Defteros ‘…had crossed the line from being professional lawyer for, to become a confidant and friend of, criminal elements’ [at 4].

Mr Defteros brought defamation proceedings against Google where Google was found to be a publisher of the web matter. Google sought an appeal on the grounds that they did not publish the web matter, that the Court erred in rejecting their defences of common law and statutory qualified privilege, and common law and statutory innocent dissemination.

Decision

The High Court majority, comprising of Justices Kiefel, Gleeson, Edelman, and Steward, agreed the primary question to be determined was ‘…whether providing search results which, in response to an enquiry, direct the attention of a person to the webpage of another and assist them in accessing it amounts to an act of participation in the communication of defamatory matter’ [at 24]. The High Court discussed two cases in the area of defamation law, specifically in regard to who constitutes a publisher. These were Webb v Bloch [1928] HCA 50 and Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27. In these cases, the defendants’ encouraged third parties to comment regarding certain media articles. These comments were the alleged defamatory material. It was said that the defendants’ ‘…facilitating, encouraging and assisting the posting of comments by third-party users rendered them liable as publishers of those comments’ [at 33]. The High Court highlighted the nexus between the defendants’ acts of encouragement to the creation of the defamatory material. Here, Google’s search result had no connection to the creation of the Underworld article.

The High Court pointed out that if someone gives directions to the place of sale of a newspaper, it can’t be inferred that in doing so, they have communicated or participated in the communication of defamatory material which may be present in that newspaper. Further, the Court observed that a hyperlink is content-neutral and is merely a reference to information located somewhere else – see Crookes v Newton [2011] 3 SCR 269. Google facilitating access to the Underworld article is not the same as communicating its content and the Court specified that to claim as much would be to modify the rules of publication. The Court found that as Google did not publish the Underworld article, it was not required to consider the defences they put forward of qualified privilege and innocent dissemination.

The Court ordered that the appeal be allowed. Google was ordered to pay Mr Defteros’ costs of the appeal because they were granted special leave to appeal to the High Court on this condition.