With the advent of the Information Age people are consuming and creating more information and content than ever before.
Technologies like web 2.0 and advances in personal computing and mobile technologies mean internet users can easily create and distribute content at the click of a button, often with limited checks and balances in place regarding the accuracy of the information. This has important implications for defamation.
While there are laws to protect against defamation of character, the rapid growth of digital technologies and platform providers presents new challenges as existing legal frameworks are applied to emerging and evolving circumstances.
One such example is the case of Google LLC v Defteros1 (Defteros) in which it was alleged that Google played a part in defaming George Defteros by including reference to a newspaper article, which Mr Defteros deemed defamatory, in its search results associated with his name.
This article examines the intersection between aspects of Google's search and review products, and defamation theory and law.
Background: Google v Defteros
The plaintiff in the case, George Defteros (Defteros), is a criminal lawyer who has acted for individuals alleged to have been involved in Melbourne's "gangland wars". In 2004, Defteros, together with Mario Condello, was charged with conspiracy to murder and incitement to murder Carl Williams and others. Whilst the charges against Defteros were later withdrawn, the prosecution of Defteros and Condello was widely reported and publicised, including by The Age newspaper.
In early 2016, Defteros became aware that an internet search of his name on the Google search engine delivered search results that included a snippet of, and hyperlink to, an article titled "Underworld loses valued friend at court" published by The Age on the day Defteros was charged. Defteros alleged that the article was defamatory of him, and sued Google for its part in the publication of the article.
After Defteros's initial success in the Supreme Court and the Court of Appeal, the finding against Google was overturned by the High Court.
The majority of the High Court found in the Google v Defteros case that Google's actions in serving users its organic search results did not make Google a publisher of any defamatory content on those third-party webpages. Specifically, the Court found that although Google provided the list of hyperlinked results in response to a user's search query, it did not direct or encourage searchers to click on any of the hyperlinks it provided and as such, did not "lend assistance to" the publication of The Age article in question.
The Court noted that the provision of the Google search result, including the hyperlink, had no connection to the creation of the article. The creation of the article was in no way approved, facilitated, or encouraged by Google. Further, Google did not participate in the article's placement on The Age website.
The decision
The Court found that Google is not a publisher of defamatory material contained on third-party websites that are hyperlinked to by Google's organic search results.
The finding is controversial for several reasons. While the ruling may seem unsurprising, it is at odds with the longstanding principle of defamation law that anyone who "lends assistance to" a defamatory publication is jointly and severally liable for that publication.
Take the example of a book containing a defamatory quote - defamation proceedings could theoretically be brought against any one or more of:
- the person who provides the quote;
- the author of the book;
- the editor of the book;
- the publishing house;
- the printer who prints the book;
- the bookstore that sells the book; and even
- the local library that makes the book available for its members to borrow.
Defences such as innocent dissemination, and the recently introduced serious harm threshold, may enable some of the abovementioned parties to avoid liability. However, they are all, for the purpose of defamation law, considered to be "publishers" of the defamatory matter.
Therefore, it would be reasonable to assume that the same result would apply to Google. After all, like the bookstore or library selling or lending a defamatory book, Google is instrumental in making a defamatory webpage accessible to users via the operation of its search engine. Not so, says the High Court.
Defamatory organic search results vs defamatory AdWords
The majority judgments in the Defteros case specifically related to organic search results. However, most Google search queries return a mixture of organic results and paid or sponsored links generated via Google's AdWords service.
Google AdWords is a pay-per-click advertising platform that allows businesses to have advertisements for their business (which look similar to organic search results) served to users who enter particular search terms. Businesses pay Google to have their advertisements displayed at the top of Google's search results based on the keywords the businesses wish to target. Google charges a fee to the advertising business each time a user clicks on the advertisement in Google's search results.
The High Court's conclusion that Google was not a publisher of the web pages hyperlinked to by Google's organic search results was based on the finding that organic search results are created by a "fully automated process" and "without human interaction". That is not the case for paid Google ads.
Gageler J in Defteros distinguished the organic search results that were the subject of Mr Defteros's claim from "sponsored links", which His Honour noted is a "form of advertisement created by, or at the direction of, advertisers willing to pay Google for advertising text which directs users to a web site of the advertiser's choosing"2.
In the case of sponsored links, previous High Court judgments (as well as Gageler J's decision in Defteros) suggest that Google would be treated no different from other intermediaries such as print and online newspaper publishers who publish others' advertisements.
Related cases
The High Court in Trkulja v Google LLC3 (Trkulja) and the Full Court of the Supreme Court of South Australia in Google Inc v Duffy4 (Duffy) have both referred to previous authorities (such as the Federal Court's decision in ACCC v Trading Post5 and the High Court's decision in Google v ACCC6) that dealt with "sponsored links" or paid Google Ads. Whilst Google v ACCC and ACCC v Trading Post held that Google was not liable for misleading or deceptive conduct as it did not make the representations appearing in "sponsored links", the Courts in Trkulja and Duffy emphasised the distinction between the law of misleading or deceptive conduct and the law of defamation.
Accordingly, notwithstanding the Defteros judgment, there are grounds to believe that search engines and similar platforms that receive payment to publish and promote third-party web pages via advertising channels like Adwords will remain liable.
Google business reviews
Can you sue Google for defamatory reviews?
Google Business Profiles allow businesses to maximise their visibility and business profile on Google. The platform contains a function enabling internet users to post reviews in respect of the relevant business profile. While a high rating on Google reviews can be a boon for a business, negative reviews can have the opposite effect, reducing a businesses' star rating with disastrous consequences for their ability to attract new customers.
Businesses that are unable to identify or contact the author of the review will often ask "can I sue Google"?
While the Australian courts have confirmed that Google is not a publisher of websites hyperlinked to via Google's organic search results, that doesn’t necessarily mean Google is not a publisher of defamatory third-party reviews published via the Google review platform.
Google Business Profile reviews are directly hosted by Google and are in Google's complete control. In that way, the forum is no different to other platforms like Facebook that allow third-party users to provide commentary and post reviews about third-party businesses or products.
Further, unlike organic search, Google reviews are not created by a fully-automated process that occurs without human involvement. There is a long history of defamation cases in which parties who own or control community noticeboards, or other forums on which third parties can post content, can be sued for defamation as publishers of that content.
Until such time as the defamatory nature of the content is brought to their attention, such parties may be able to avail themselves of the defence of innocent dissemination. However, once they are on notice that the content is defamatory, if they fail to remove it, they are just as liable in defamation as the original author.
In 2021, the High Court in the Voller case found that businesses operating Facebook pages were liable as publishers of defamatory third-party content posted to those pages.
In our view, the decision in Defteros does nothing to alter that conclusion. Page administrators, and also platform operators like Google, continue to be exposed to liability as a "publisher" of the third-party content contained on the review platforms they control.
Google autocomplete search suggestions
Can you sue Google for defamatory autocomplete search suggestions?
Another feature of Google's search engine is its "autocomplete" function, which offers predictive or suggested search terms to users as they type into the search bar.
In Trkulja, the High Court held that autocomplete suggestions that were displayed during a Google search for "Michael trk" which included the suggestions "Michael Trkulja criminal", "Michael Trkulja Melbourne crime" and "Michael Trkulja Melbourne underworld crime" were capable of being defamatory of Mr Trkulja.
The High Court also supported the trial judge's finding that, in the circumstances of the case at hand, it was strongly arguable that Google's "intentional participation" in the communication of the defamatory autocomplete suggestions to third-party users supported the finding that Google published the defamatory matter.7
However, it is important to note that the Court in Trkulja was addressing the question of whether the case had no reasonable prospects of success and should therefore be summarily dismissed, and not the question of whether Google was in fact liable for the relevant publications.
The autocomplete function of Google's search engine was also considered by the South Australian courts in the case of Duffy. There, the plaintiff's claim included, amongst other things, a complaint that a search for "Janice Duffy" generated an autocomplete suggestion "Janice Duffy Psychic Stalker". The Full Court of the Supreme Court of South Australia noted that, when any of the auto-complete suggestions are displayed on a user's computer, "the physical element of the tort of defamation occurs"8.
Since the High Court's judgments in Defteros did not deal with the question of autocomplete suggestions, it remains unclear whether Google will now be considered a publisher of such results.
On one hand, it may be argued that because autocomplete suggestions are generated based on Google's algorithm and automated processes without any direct human involvement, they are akin to organic search results - meaning Google is not a publisher. On the other hand, whereas organic search produces all results relevant to the user's search terms, with Google remaining agnostic as to which hyperlinked result(s) are clicked, autocomplete suggestions may encourage and entice searchers to explore searches that they may not otherwise have considered.
Further, whereas organic search is merely a compilation and reproduction of content created by the authors of the hyperlinked web pages to which the search query relates, Google is the primary, if not sole, author of the autocomplete suggestions that it serves to its users.
In light of Google's greater degree of authorship and encouragement, we consider that it remains possible that Google will, post-Defteros, continue to be held liable for the publication of defamatory autocomplete search suggestions.
Google search snippets
Can you sue Google for snippets containing defamatory matter produced in Google search results?
Google's search results present content related to a search term, and include both a hyperlink to the source along with an example "snippet" of the search terms as they appear in context on the source page or platform.
Prior to the decision in Defteros, the findings of the South Australian courts in Duffy9 suggested that in Australia, Google was a publisher of the snippets and therefore potentially liable for any defamatory imputations that such snippets conveyed.
In particular, the Full Court of the Supreme Court noted that the fact that defamatory imputations were contained in snippets of the search results, which repeated materials from the underlying webpages, did not deny their capacity to convey a defamatory meaning. Further, when compared to mere hyperlinks, snippets were seen to more directly highlight the defamatory content of the webpage to the third-party searcher, thus enticing the searcher to view that material.10
However, following the High Court's decision in Defteros, the position with respect to snippets has most likely changed. In contrast to the situation in Duffy, the plaintiff in Defteros did not allege that Google's snippets were defamatory when viewed in isolation from the underlying websites to which they hyperlinked.
In their joint judgment, Edelman and Steward JJ specifically rejected the reasoning in Duffy insofar as it applied to snippets, explaining that in their opinion, the inclusion of the snippet of words or phrases accompanying the hyperlink in order to give context to the search result "does not…evidence or demonstrate an adoption of, or an assumption of responsibility for, the contents of a given webpage - unless some language of adoption or words that show the taking of responsibility are displayed in the search result".11
In contrast, Gageler J in Defteros did not go so far as to suggest that Duffy was wrongly decided, but instead cautioned that the Court's reasoning in Duffy should not be generalised to the extent of indicating that particular combinations of elements of a search result or snippet will always, or generally, operate to direct, entice, or encourage a third party undertaking a Google search to click on the links in question.12
As matters presently stand, it is therefore unlikely that Google will in future be found liable by Australian courts for defamatory imputations conveyed by its search snippets.
Key takeaways
The High Court has determined in Defteros that Google, as an operator of an online search engine, is not a publisher of the websites that its organic search results hyperlink to. Further, a closer examination of the judgments in Defteros seems to suggest that four of the seven High Court judges who decided the case would probably, if they were required to do so, conclude that Google is not a publisher of defamatory "snippets" accompanying its organic search results.
While the decision will no doubt be celebrated by Google and other search engines, it is unlikely to have significant impact beyond the world of organic search.
In Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (Voller), the High Court was tasked with determining what was meant by the requirement of the common law of defamation that the publication of defamatory matter must be "intentional". In that case, the Court held that all that is required is that the defendant's act of participation in publication be voluntary. The hosting of a Facebook page to which members of the public were invited, or at least permitted, to post comments, was therefore enough to make the Facebook page owners liable as "publishers" of that third-party content.
The High Court in Defteros confirmed that the determination in Voller remains good law.
The finding in Defteros was based on the fact that Google was, by operation of a fully-automated algorithm, merely facilitating access to the webpages in question and did not entice or encourage web users to view particular pages or the defamatory material they contained. The Defteros decision does not however provide Google or other platforms with a blanket immunity from liability for secondary publication of defamatory material.
Nevertheless, the High Court's ruling does provide a degree of comfort and guidance regarding the use of hyperlinks. Where individuals or businesses add hyperlinks to webpages on online articles for reference purposes only and without expressly adopting or approving the underlying content, it is possible that they may be able to rely upon a similar type of argument to that which was successfully pursued by Google. That outcome will not however be assured until such time as the Australian courts have cause to specifically determine that issue. In the meantime, as always, it is sensible to proceed with caution.
Photo by Christian Wiediger on Unsplash.
1 [2022] HCA 27
2 Google LLC v Defteros [2022] HCA 27 at [69]
3 Trkulja v Google LLC [2018] HCA 25 at [59]
4 [2017] SASCFC 130 at [221]
5 (2011) 197 FCR 498
6 (2013) 294 ALR 404; [2013] HCA 1.
7 [2018] HCA 25 at [38]
8 Google Inc v Duffy [2017] SASCFC 130 at [594]
9 Google Inc v Duffy [2017] SASCFC 130
10 Google v Duffy [2017] SASCFC 130 at [172]
11 Google LLC v Defteros [2022] HCA 27 at [238]
12 Google v Defteros [2022] HCA 27 at [68]
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