Introduction
Facts
Lower courts
High Court
Comment
In a highly anticipated judgment, the Australian High Court, by a 5:2 majority, overturned a Victorian Court of Appeal decision that had found search engine Google to be a publisher of a defamatory newspaper article merely as a result of providing users with a hypertext link to the article in response to a search request.
The decision in Google LLC v Defteros(1) goes some way towards bringing Australian law in line with the law in comparable jurisdictions, including Canada.
One of the judges – Justice Gageler – noted that while it was "by no means incontestable" that a hyperlink should not be enough in itself to make one a publisher of defamatory content linked to, the fact that this approach had stood for more than a decade in Canada "counts in favour of that conclusion being accepted and assimilated" into common law principles in Australia. Justice Gageler said that the "ubiquity of the internet, and the centrality of hyperlinks to its operation", made "consistency in the characterisation of a hyperlink across common law jurisdictions especially desirable".
This case does not give rise to a blanket rule that a search engine will never be treated as a publisher of defamatory content linked to in a search result. Justice Gageler noted that "the provision of a hyperlink might combine with other factors" to result in a finding that the linker has "participated in the process of publication" of the defamatory content and is therefore a publisher of that content.
Mr Defteros is a Melbourne lawyer who was the subject of an article in The Age newspaper (in print and online) which referred to criminal charges against him which had later been dropped. Google search engine users who used Defteros's name as the search query were provided with a set of search results that included the headline to the article and a snippet of text:
Underworld loses valued friend at court -SpecialsGanglandKillings …
www.theage.com.au > Features > Crime & Corruption ▼
June 18 2004 – Pub bouncer-turned-criminal lawyer George Defteros always prided himself on being able to avoid a king hit – The Age Online
A person who clicked on the hyperlink in the headline was directed to a copy of the article on The Age website.
Defteros sued Google for defamation in the Victorian Supreme Court, alleging that Google was a publisher, for defamation purposes, of the article.
It was not in dispute that the article defamed Defteros but there was no allegation that anything in the search result itself was defamatory.
The two questions before the court at first instance were whether Google's conduct in providing the hypertext link in response to a search query was enough to make it a publisher of the article and, if so, whether Google had any defences available to it, including the defence of innocent dissemination.
The trial judge purported to apply settled principles of the common law of defamation to find that the provision of a hyperlinked search result is conduct that is "instrumental" to the communication of web content linked to, and thus sufficient to make the search engine provider a publisher of that content. The defence of innocent dissemination failed on the ground that Google (which was characterised as a subordinate or secondary publisher) had not taken steps to remove the search result within a reasonable time after being notified by Defteros that the article to which it linked was defamatory.
The Court of Appeal upheld this decision.
This case came before the High Court less than a year after the Court had held – in Fairfax Media Publications Pty Ltd v Dylan Voller(2) – that the test of who is a publisher for defamation purposes under Australian law was sufficiently broad to hold the administrators of Facebook accounts liable as publishers of third-party posts even prior to becoming aware of those posts.
There was no disagreement between the judges in Defteros that the relevant principles were those articulated in Voller's case; that is, that a person who intentionally participates, assists, or is instrumental in, or contributes to any extent to the process for making defamatory matter available for comprehension by a third party, is a publisher, regardless of the degree of participation.
It was in their application of those principles to the facts at hand that the five plurality judges (Chief Justice Kiefel and Justices Gleeson, Gageler, Edelman and Steward) and the two dissenting judges (Justices Keane and Gordon) differed. The fact that the reasoning in the three plurality judgments differed to some extent means that this decision does not greatly advance consideration of the question as to exactly where the line is to be drawn when it comes to the question of what constitutes publication by a search engine for the purposes of defamation.
Kiefel CJ and Gleeson J
In a joint judgment, Chief Justice Kiefel and Justice Gleeson said that the case before them had none of the features that had led the Court in Voller to find that the defendants were publishers of third-party postings to their Facebook pages:
- Unlike the defendants in Voller, Google "did not provide a forum or place" where the defamatory content could be published.
- Google's provision of the search result, including the hypertext link, "had no connection with the creation of" the article.
- The creation of the article had been "in no way approved or encouraged by" Google.
The justices rejected the trial judge's analogy between a search result and a librarian handing over a book marked at a particular page, and instead referred with approval to the approach adopted by Abella J in the Canadian Supreme Court in Crookes v Newton(3) to the effect that a hyperlink is in essence a reference to another source that does not itself constitute publication of the content referred to. The fact that the hyperlink enabled a search engine user to go directly to the article did not, in itself, make Google "something other than a reference provider". To find otherwise "would expand the principles relating to publication" in a way that was not supported by existing authority.
Gageler J
Justice Gageler focused on the Court of Appeal's finding that the search result in this case had "enticed" the search engine user to click on the link to obtain more information about Defteros. He said that the provision of a hyperlink might combine with other factors to lead to a finding that the linker has "participated in the process of publication" of the defamatory content and is therefore a publisher of that content, but that the search result in this case was not capable of being construed in that way.
Justice Gageler's judgment illustrates the highly fact-specific nature of any consideration of whether a search engine should be treated as the publisher under Australian law of either search results themselves (including snippets) or the content that is linked to. He referred to Google Inc v Duffy(4) – in which the South Australian Supreme Court found Google to be a publisher of both the search results and the content they linked to – and said that the South Australian decision could best be understood as having "turned on the particular content of the snippet component of the search result" which was said by the court in that case to have "naturally invited the reader to click on the hyperlink . . . to obtain more information". Justice Gageler found that the outcome in Duffy cannot be generalised to the extent of indicating that a search result – which will generally include a snippet as well as a hyperlink – will always or even generally operate to direct, entice or encourage a search engine user to click on the link for more information.
Edelman and Steward JJ
Like Justice Gageler, Justices Edelman and Steward accepted that a search result may, by its content, be "likely to entice a searcher to choose a given third party web page over others", and that if this was the case an inference of a "common intention to publish" might arise. But there was no evidentiary foundation before the Court of Appeal that warranted such a finding in this case.
The justices also discussed the concept of "incorporation", which had been relied on by the trial judge and the Court of Appeal to find that the words accompanying the hyperlink in the search results had a sufficiently close connection to the article to be taken to have "incorporated" the content of the article into the search result. The justices noted that this concept was taken from the judgment of Chief Justice Kourakis in Duffy, but said that its application in this case was not justified: any conclusion that Google was a publisher "by incorporation of the contents of" of the article "has no factual basis". It is worth noting here that Chief Justice Kiefel and Justice Gleeson said the concept of "incorporation by reference" clearly has a place in contract law and some other areas of law, but not in defamation, "which requires the defamatory meaning to be conveyed for publication to be complete".
This is an area of law that would benefit from legislative reform. While the decision in Defteros has settled the question of whether a search result providing a hypertext link to content is enough in itself to make a search engine a publisher of that content for defamation purposes, uncertainty remains as to what circumstances might lead to a finding that the content of the search result (including any snippet) were such as to have enticed users to click on the link, rendering the search engine a participant in the publication process and thus a publisher.
Just days before this decision was handed down, the New South Wales government (on behalf of the Council of Attorneys-General) released draft of proposed reforms to the uniform defamation law, which would provide a conditional statutory exemption from liability for "standard search engine functions". The proposed exemption would not apply to sponsored search results, nor to auto-complete results. If adopted, the proposed exemption would bring Australian law on search engine liability into greater conformity with the law in comparable jurisdictions.
For further information on this topic please contact Anne Flahvin at Baker McKenzie by telephone (+61 2 9225 0200) or email ([email protected]). The Baker McKenzie website can be accessed at www.bakermckenzie.com.
Endnotes