In a decision released on 17 August (Google LLC v Defteros [2022] HCA 27), the High Court of Australia has decided that Google did not publish defamatory material by providing search results, which included a link to a webpage containing a defamatory statement.
Google is therefore not liable for defamatory material which appears in its search results.
Background
The Age newspaper published an article in 2004 which defamed Mr Defteros. In 2016 Mr Defteros discovered that Googling his name returned a search result which linked to that article. He asked Google to remove the search result, but it refused to do so. Mr Defteros then issued proceedings, claiming damages from Google for defamation as publisher of the search result and the article.
The trial judge decided that Google had published the material, because the provision of the search result was instrumental to the communication of the content of the article to the user, as it lent assistance to publication of the article. The judge found that Google became the publisher of the article each time a person clicked on the hyperlink to the newspaper article.
The High Court of Australia’s decision
Having reviewed previous decisions, the High Court of Australia said:
“There are four ways in which a defendant might be found to be a publisher of a communication to a person that is defamatory of a different person. The first is where a defendant performs the actual act of communication. The other three are based on the attribution to a defendant of another’s acts that form part of the process of communication: (ii) where a defendant authorises another to perform an act of communication and the communication is within the scope of that authority; (iii) where a defendant assists, in the sense of procures, provokes or conduces, another in performing the act of communication; and (iv) where a defendant ratifies or adopts the communication of another.”
In this case, Googling Mr Defteros’s name produced a number of search results, one of which included a hyperlink to, and a snippet of, the relevant article. The search result page itself did not contain any defamatory material.
The Court then said:
“It may be accepted that “but for” the appellant’s search engine, the defamatory matters in the Underworld article would not have been conveyed to the 150 individuals who viewed it via the Google search results… But the appellant’s role in that conveyance rose no higher than that of mere assistance or facilitation.”
For search engines, the “critical step that results in publication is that of the person searching and clicking on the chosen hyperlink.” The Court noted that:
“it is the searcher who decides whether to click on one or more of the hyperlinks. In that respect, it was accepted on the facts of this case that the appellant could not be a publisher of the Underworld article unless and until this took place. It follows that the appellant 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.”
Google was therefore not a publisher of the article, and could not be liable for the defamatory material contained within it.
Comment
This decision is very significant for internet service providers and is likely to be followed in New Zealand. The distinction of facilitation as opposed to publication is a finely balanced one, and reflects the developing common law in the face of technological change.
A copy of the decision is available here.
If you have any questions about how this decision may affect you, please contact a member of our litigation and dispute resolution team.
Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
