17 August 2022
On 17 August 2022, the High Court of Australia delivered its judgment in Google LLC v Defteros [2022] HCA 27. By majority, the Court concluded that Google was not publisher of defamatory webpages that were made accessible by hyperlinks in Google search results.
While this outcome may seem intuitive to many readers, it came as a shock to colleagues who practise as defamation lawyers. This article explains the Court’s reasons, and what the judgment means for those whose reputations are being damaged by the functionality of Google’s business model.
Background
The facts of this case have been outlined elsewhere. Long story short: years ago, The Age published a news article that defamed Defteros. Those articles were accessible on the internet.
In 2016, Defteros became aware that a search of his name in the Google Search engine would return a result that would hyperlink to the defamatory article. He sued Google, arguing that it was liable to pay damages as “publisher” of the underlying defamatory article.
Of course, Google did not author the defamatory article. But “publication” is not the same thing as “authorship”. “Publication” has a technical meaning in defamation law. 20 years ago, in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, the majority of the High Court of Australia clarified that publication is a “bilateral act”, which occurs when material is made available in comprehensible form:
“It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant’s conduct”: [44].
Google’s business model makes websites available to users—that is the essence of its value. Further, it has been settled law for almost a century that any person who participates in publication of defamation is prima facie liable: Webb v Bloch (1928) 41 CLR 331. Obviously, the concept of publication in defamation law is very broad.
In application of these orthodox principles, the Supreme Court of Victoria decided that Google was “publisher” of the website that defamed Defteros. That decision was upheld on appeal, by the Court of Appeal of the Supreme Court of Victoria. Google then obtained special leave to appeal further to the High Court of Australia.
The High Court majority decision: Google is not a publisher
A 5-2 majority allowed Google’s appeal, concluding that Google was not a publisher of the defamatory website by linking to it in search results. The majority decision was comprised of 3 sets of separate reasons.
Kiefel CJ and Gleeson J recounted Webb v Bloch as the premise underlying the High Court’s recent decision in Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767: [19]. (As previously explained, in Voller, the Court decided that media companies published comments of third-party Facebook users made in response to Facebook posts of the media companies.) Their Honours framed the issue in the present case as follows (at [24]):
“The question which arises here is 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.”
Their Honours distinguished other leading cases where publication was established, where the acts that constituted relevant participation in publication preceded the dissemination of the defamatory material: [27]. For example, in Voller, the media companies voluntarily posted Facebook content critical of Voller, which was enough for them to be treated as publishers of comments made in response to posts linking that content. They also drew support from foreign authorities, and notably the decision of the Supreme Court of Canada in Crookes v Newton [2011] 3 SCR 269, which treated hyperlinks as mere references, and not as publication of the webpage underlying the link.
Gageler J agreed with the conclusion of Kiefel CJ and Gleeson J, adding brief separate reasons. His Honour also drew support from Crookes, but left open the possibility that provision of a hyperlink could amount to publication in other circumstances (at [66]):
“To accept that the provision of a hyperlink is not enough to amount to participation in the process of publication which is completed when a third party clicks on the hyperlink so as to view the webpage, however, is not to deny that the provision of a hyperlink might combine with other factors to amount to participation in that process of publication of matter on that other webpage”.
Edelman and Steward JJ came to the same conclusion, but for reasons that appear different to the rest of the majority, and which echo the separate dissenting reasons of Edelman J and Steward J in Voller. Their Honours argued that Google had not actually communicated, authorised or ratified the webpage in issue: [209]. They also appealed to concepts relevant to torts other than defamation (at [202])—a familiar mode of reasoning from Edelman J, who has appealed for greater coherence in the law. With respect, such appeals grate against the repeated recognition that defamation is an unusual tort, owing in part to centuries of development and piecemeal statutory tinkering.
Keane J and Gordon J each offered their own dissenting reasons. Keane J’s reasons are notable for the fact they did not concur with Kiefel CJ—their Honours usually agree and decide together. Apart from that, with respect, his Honour’s reasons appear to be an orthodox defamation analysis. For example, the following dictum at [95] is compelling:
“[I]t was argued on Google’s behalf that a person whose participation in the process of communicating defamatory matter to a third party consists of assistance to the reader, rather than to the primary publisher, is not relevantly a publisher. It was said that to characterise the activity of a person who aids a reader in having access to the defamatory writing as participation in publication of the writing would be an absurd extension of prima facie liability for defamation. In light of Dow Jones v Gutnick, it cannot sensibly be denied that a person who aids another to comprehend defamatory matter does participate in the publication of that matter to that person. There is nothing novel in this: a person who reads a defamatory writing to a blind or illiterate person publishes that writing, just as a person just as a person who reads a newspaper article aloud over the radio publishes the article”. [citations omitted]
Keane J also noted the intentional role of Google in linking to webpages, like the defamatory webpage in issue, in the course of its business: [98]. In this respect, Google is not merely a “passive” instrument that conveys information; Google actively ranks search results to drive engagement and make money: see [100]. It is appropriately characterised as a publisher in light of the orthodox principles, recently affirmed in Voller, which held that voluntary acts of intentional participation in publication may be treated as acts of publication.
Gordon J’s reasons shared some features of Keane J’s. Her Honour appealed to characteristics of the Google business model: “the commercial benefit that Google obtains by creating and operating its search engine, particularly in relation to news outlets, is inconsistent with its assertion of passivity and confirms the conclusion that its acts of participation amount to publication for the purpose of the strict publication rule”: [129]. In adapting the language of Voller, her Honour opined: “Google’s attempt to portray itself as passive has an air of unreality. Having taken action to obtain a commercial benefit by creating and operating a search engine that facilitates access to news articles, it cannot deny that it is involved in the publication of those news articles”: [112].
Comment
Although the concept of “publication” in defamation law is very broad, it has its limits. Unfortunately, following this case, identifying those limits may become difficult in common cases.
For example: say you dislike me, and find a webpage hosting an article that expresses horrible defamatory things about me. You copy the URL, then tweet a hyperlink to it, without any comment. Have you published the defamation? Prior to this case, I would say “yes”. Now, I am not so sure. As Gageler J indicated, whether a person is a “publisher” of defamation after providing access to a URL may turn on the circumstances of the particular case.
I am not a fan of the majority decision, for reasons of principle and policy. I agree with Justice Gordon: Google’s attempt to portray itself as passive in the process of communicating webpages to internet users has an “air of unreality”. Google links content on purpose, to support a business model that earns it billions of dollars. Many millions of that fortune come from Aussie users, yet it pays negligible tax to our community. Through this decision, it has avoided a key externality of its business: the for-profit infliction of reputational harm on Australians. It is a massive win for Google.
Just days before this decision, further law reform proposals supported by the Council of Attorneys-General were released. They recommended providing Google and other intermediaries with new defences. Following this decision, those proposals are substantially redundant. Law reformers ought to go back to the drawing board. So should defamation lawyers, in considering the sort of advice they provide to their clients when hyperlinks cause reputational harm.
For more information, please contact the authors:
Michael Douglas | Consultant
Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.
Back to news
Read article