Mr Defteros claimed damages for defamation against both Google Inc and its Australian subsidiary, Google Australia Pty Limited about the alleged publication of search result pages by Google Inc’s search engine. These pages contained articles linked to Mr Defertos’s time as a criminal lawyer representing Melbourne underworld figures.
The requirement for a publication and a "publisher"
The issue on the application was whether the allegation that Google Australia is a publisher of the material had real prospects of success.
The starting point for a defamation claim is the requirement for a publication of the defamatory matter. That is, the defamatory matter must be communicated in a comprehensible form to a person other than the plaintiff.
A publisher is one who makes defamatory material available to another who comprehends or perceives it. In Defteros, Justice Dixon confirmed that three things must be established to identify a publisher of defamatory material.
- A publisher must participate in the act of publication, that is, participate in any degree accessory to the publication or by any means in the chain of communication by which the defamatory material is passed from its originator to a third party who receives it.
- A publisher must intend to publish the material to third parties or be reckless as to whether his or her conduct will cause that to occur.
- There is a distinction between primary and secondary publishers, with secondary publishers intending to publish material but being potentially unaware of its content. Justice Dixon noted that a secondary (or subordinate) publisher becomes liable when put on notice of the existence of defamatory material, and, being in a position to exert control over its further dissemination, fails to do so.
Mr Defteros claimed that Google Australia was liable for defamatory conduct as a primary publisher, on the basis of participation in the business of Google Inc conducted in Australia and alternatively, as a secondary publisher, on the basis of participation in the business of Google Inc conducted in Australia, plus the receipt of notice of the alleged defamatory material and failure to arrange its removal.
Google Australia submitted Mr Defteros’s claim had no real prospects of success because Google Australia is not the owner or controller of the Google search engine and does not have the capacity to prevent a similar search result in response to use of the search engine.
It was not contested that Google Australia did not own, operate or control the Google web search. Further, it was not contested that Google Australia had no capacity to remove or block a URL to prevent any future result for a webpage with that URL being returned.
Mr Defteros disputed that control over publication was necessary. He submitted that Google Australia provides the search engine facility to internet users in Australia and facilitates the operation of Google Inc in Australia, and, that by this participation, acted together with Google Inc in the provision of content via the Google search engine function.
A search engine is a secondary publisher
Justice Dixon referred to the recent decision of the Victorian Court of Appeal in Google Inc v Trkulja  VSCA 333. In that decision, Ashley JA, Ferguson JA and McLeish JA held:
“On first principles, we consider that a search engine, when it publishes search results in response to a user’s enquiry, should be accounted a publisher of those results — and in this we include autocomplete predictions. It is a participant in a chain of distribution of material. We also consider that a search engine should be accounted a secondary publisher…”
Based on Trkulja, Google Australia could only be liable as a secondary publisher, who, having participated in the chain of communication or distribution of the alleged defamatory material, received notice of the allegedly defamatory matter, and being in a position of control to alter or remove it, did not do so.
The pleading in the present case was framed in terms of Google Australia’s alleged participation in the business of Google Inc rather than participation in the relevant publication. Justice Dixon found that participation in the “business” of Google Inc, without more did not equal participation in publication, without which Google Australia could not be liable as publisher.
This decision highlights the importance of identifying prior to the commencement of proceedings whether there is evidence to establish a connection between the alleged publisher and the relevant process of publication. If there is a connection, this must be specifically pleaded as opposed to pleading a mere connection to the search engine’s business.