7 May 2020
Search engines and other ‘internet intermediaries’, like social media companies, are natural targets for defamation litigation. They hold the keys to the internet and have deep pockets. Little online content would be viewed without their assistance. But their liability under Australian defamation law is controversial and often contested, particularly where the defamatory content is authored by third parties.
Defteros v Google LLC [2020] VSC 219 is a recent case on point. The Court held Google could be liable as publisher of defamation by linking to defamatory webpages, even where the search results are not themselves defamatory. Central to the result was the finding that:
The inclusion of a hyperlink within a search result naturally invites the user to click on the link in order to reach the webpage referenced by the search result… the provision of a hyperlink within a search result facilitates the communication of the contents of the linked webpage to such a substantial degree that it amounts to publication of the webpage.
If this decision is right, then Google might be a publisher of every defamatory thing on the internet captured by its search results.
Background
George Defteros was a criminal lawyer whose clients included persons associated with the Melbourne gangland wars, famously depicted in the Underbelly series. At one point, Defteros was charged with conspiracy to murder, among other things. The charges were later withdrawn. The Publications concerned matters which arose in that context and remained available on the internet for years.
Defteros brought defamation proceedings against Google after the search engine operator, having received notice, failed to remove hyperlinks to articles and images which were returned as results following a Google search of his name.
Interestingly, he went after Google for linking to content rather than the media organisations that actually authored the underlying content.
The ‘publication’ issue
For present purposes the substantive issue was whether Google could be liable for certain content as publisher. ‘Publication’ in defamation law is a bilateral act that occurs when a publisher makes defamatory matter available in comprehensible form and a reader, viewer or listener understands it.
The court distinguished between webpages which were merely linked in Google search results, on the one hand, and ‘snippets’, on the other. ‘Snippets’ are the paragraph or so of each search result displayed with the hyperlink.
The question was: did the hyperlinks and snippets within Google search results satisfy the orthodox understanding of ‘publication’? They did.
The Court held that Google does publish webpages reached by clicking on hyperlinks within Google search results.
The resolution of the publication issue was a necessary step to Google’s liability; Google succeeded on some defences and failed on others. Defteros was awarded $40,000.
Reasons on publication
The decision expands on the principles articulated in Trkulja v Google Inc (2018) 263 CLR 149 and Google Inc v Duffy (2017) 129 SASR 304, where Courts held that search engine operators could be liable where the search results themselves were defamatory.
In Trkulja, Google applied to strike out the plaintiff’s claim relevantly on the basis that search results themselves could not defame a person. The High Court of Australia disagreed, holding that the text and images within search results could defame people.
In Duffy, the South Australian Full Court held Google liable for search results which abstracted content from underlying webpages via snippet while hyperlinking to those webpages. Relevantly, Justice Hinton considered that:
The deep hyperlink taken with the snippet is more than a reference. The snippet entices and the hyperlink bespeaks a willingness on [Google’s] part to transport the enticed searcher immediately to the relevant web page for more information – to publish the web page to those who, having read the snippet, want more information.
These remarks were expressed in general terms and were not limited to circumstances where the snippet itself conveys defamatory content. This formulation does not require that the hyperlink or the snippet disclose that the underlying webpage contains defamatory material. Defteros held similarly.
Significance
Whether defamation has been published is an issue of fact, which turns on evidence. Findings of fact are not binding on subsequent decisions. Nevertheless, as the Google search engine operates consistently over time, and as Google’s business model is paralleled by that of other internet intermediaries, this decision will surely factor into how subsequent defamation disputes involving internet intermediaries are resolved.
The decision has broader implications for Google and other search engine operators, both in Australia and internationally. It is the first case, at least in Australia, where a search engine operator has been found liable for publishing search results where the defamation occurs only within the webpages underlying the search results.
Of course, Google is not automatically liable before being notified of the existence of the defamatory third-party content. Australian defamation law recognises an innocent dissemination defence. Once notified, a search engine operator must assess and respond to the claim within a reasonable period before it will be legally responsible for the publications. One practical effect is that the ‘reasonable time’ for Google to remove links to defamatory content was found to be 7 days. This decision will be persuasive precedent requiring Google to respond quickly to complaints. Search engine operators will need to ensure they pay due consideration to complaints received about defamatory results on third party websites returned in searches.
The decision’s significance is not limited to search engine operators. The decision provides some guidance as to the steps a person should take if defamatory material is published about them on the internet. In the absence of a ‘right to be forgotten’ in Australia, the increased risk of search engine operator liability may assist individuals seeking to have access to online defamatory content removed. For a person defamed, this may be the next best thing to having a defamatory website itself taken down.
Comment
The decision is likely to attract controversy.
In some ways, Defteros follows the decision in Voller v Nationwide News Pty Ltd [2019] NSWSC 766, which held that media companies published comments by third parties on Facebook posts published by traditional news organisations. Each case marks an expansion of how defamation lawyers understand ‘publication’. At the time of writing, we are awaiting a reserved decision on a Voller appeal. Google might also appeal the decision in Defteros. However such appeals risk appeal Courts affirming the results, which would entrench the outcomes of these cases and provide greater certainty for future plaintiffs.
Bennett + Co previously reported on the proposed reforms to the Uniform Defamation Acts. That law reform process has flagged the issue of internet intermediary liability as an issue for a ‘second stage’ of review. When the review accepts submissions on point, Defteros will likely receive a mixed reception. Traditional media organisations threatened by digital disruption may welcome it for ‘levelling the playing field’—indeed, this case is the sort of development that Attorney-General Christian Porter called for at the National Press Club. Others will be less welcoming.
Unless and until there is statutory reform regarding intermediary liability in defamation, Defteros will be of significant value to plaintiffs seeking to defend their reputations online.
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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.
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