The High Court of Australia has released a significant judgment, finding by a majority that Google did not publish defamatory material by operating its search engine.
The case of Google LLC v Defteros  HCA 27 concerned a user-generated search query, resulting in a link to a third-party website containing content about the Victorian criminal lawyer Mr Defteros that was claimed to be defamatory. In 2004, Mr Defteros, and his former client, Mr Condello, were charged with a conspiracy to commit murder against members of Melbourne’s underbelly. In 2005, the charges against Mr Defteros were withdrawn. However, in 2016 and 2017, Mr Defteros instituted two separate proceedings against Google regarding an article published in 2004 by The Age concerning the incident and later another proceeding against a Wikipedia article relating to Melbourne gang killings. Mr Defteros argued that Google’s publication of the article contributed to the defamation against him, and the function of the Google search engine resulted in Google being considered a publisher under Australian defamation law. Google countered by claiming that it was not the publisher of the article as it was not the intentional communicator of the words or images. Moreover, the search engine was automated and requires a user to click through to another website.
The trial judge held in favour of Mr Defteros in 2016 by contending that the Google search engine was not a passive tool and defamatory content may be removed through human intervention. Similarly, the Victorian Court of Appeal held in favour of Mr Defteros citing that Google was a publisher. “The combination of the search terms, the text of the search result and the insertion of the URL link filtered the mass of material on the internet, and both directed and encouraged the reader to click on the link for further information.” Although, the Court of Appeal noted that the search results themselves were not defamatory, Google was still held as the publisher of the defamatory material in the underlying linked article.
However, the majority of the High Court of Australia disagreed with the Court of Appeal. The High Court noted that Google did not assist The Age in publishing the defamatory article. Providing the hyperlink in the search query merely facilitated access to the article and did not substantially communicate the article to the third-party user. The High Court likened Google’s influence to a person on the street asking for directions to a store where defamatory books can be bought. In this sense, there was no publication by Google. Ultimately, hyperlinks are content-neutral, and a search function is a reference to something, somewhere else.
Despite the case being in favour of Google, the decision illustrates the lack of certainty of the bench in defining who is a publisher for defamation purposes online.
The full judgment is available here.