Summary
- In Google LLC v Defteros [2022], the High Court held by majority that Google was not the publisher of defamatory material when its search results displayed hyperlinks to third-party articles, characterising Google as a “guide” providing references to external content rather than a participant in communicating that content.
- The High Court adopted the Canadian approach from Crookes v Newton, finding that hyperlinks are merely references to external material and that following a hyperlink makes clear the user is leaving one source for another, meaning displaying a hyperlink does not constitute publication of defamatory content.
- The principles from Fairfax Media Publications v Voller still apply, meaning businesses remain liable for defamatory third-party comments posted on their own websites or social media content, even if they are not aware of the comments.
- This article is a guide to the impact of Google LLC v Defteros [2022] for online businesses in Australia, explaining how the High Court’s decision changed defamation law regarding hyperlinks and online publication.
- LegalVision is a commercial law firm that specialises in advising clients on defamation, dispute resolution, and digital media law matters.
Tips for Businesses
Sharing hyperlinks to third-party content does not generally constitute publication of defamatory material following Google v Defteros, but businesses should still monitor their own websites and social media platforms for defamatory third-party comments and remove them promptly to limit liability under the Voller principles.
Defamation law is a constantly evolving area of law, particularly concerning online content and the rise of social media. The High Court case of Google LLC v Defteros 2022 (Google v Defteros) has changed the laws of defamation in Australia, specifically concerning the rules of publication on the internet. This article will outline the judgement and highlight the impacts on online businesses regarding defamatory content.
What Are the Facts?
Most internet users know that Google provides search engine services to help people navigate the world wide web. Users can input search information of interest that Google’s algorithms will assess to generate a myriad of search results and hyperlinks to third-party websites.
George Defteros was a criminal lawyer in Melbourne. He acted for several gangland criminals, some of whom were accused of conspiracy and incitement to murder in the early 2000s. During his career, many online news articles about Mr Defteros made defamatory imputations that he was more than a professional lawyer but associated with Melbourne’s criminal underworld.
Mr Defteros argued that Google was responsible for sharing and publishing defamatory online news articles and making them available to the general public as part of their search results. Google disagreed.
Decision in the First and Second Instances
The lower Courts characterised Google as a librarian. The trial judge likened the display of search results to a librarian handing over a book with a bookmark to a researcher. In this analogy, the bookmark was the defamatory material and Google, as the librarian, had published and drawn it to the user’s attention. The trial judge ruled in favour of Defteros and awarded him $40,000 in damages. The Victorian Court of Appeal upheld this decision until Google appealed to the High Court.
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High Court Decision – What Does It All Mean?
This matter was heard on appeal to the High Court by the full bench of seven judges. In a majority ruling, the High Court found that Google was not the publisher of the defamatory material. However, two dissenting judges declined Google’s appeal.
The majority of the Court took a similar approach to Crookes v Newton [2011] 3 SCR 269, a Canadian case. This case had a similar factual scenario and characterised hyperlinks as ‘references’ to other external material, and by following a hyperlink it is clear that the user is leaving one source and moving to another.
Adopting the Canadian approach, the High Court found that Google was merely facilitating a person’s access to the contents of another webpage, as Google had done with their search results, and was not participating in the bilateral process of communicating its contents to that person. The judgment likened Google to a ‘guide’ and that the Google search results were a reference to ‘something, somewhere else’. Consequently, the display of the hyperlink to the defamatory article as part of the search results could not be considered publication of the defamatory material.
Other Defamation Cases
This case further affirms the other leading defamation cases in Australia. The decision relied on Fairfax Media Publications Pty Ltd v Voller (2021) (Voller). The main issue in Voller was whether the publication of defamatory matters needed to be intentional. This case concluded that one need only voluntarily participate in the publication of defamatory material to incur liability.
Given that the High Court has adopted this approach, online businesses now have more freedom in sharing and communicating content online and via social media. If a business guides customers to external third-party material or shares a hyperlink, this will not be considered a ‘publication’ of defamatory content. However, it should be noted that the principles in Voller still apply. If a customer leaves a defamatory comment on your business’ website or social media content, the business may be responsible for these comments.
Key Takeaways
Defamation is a complex area of law that continues to evolve alongside technology and social media. This case has several important implications to note:
- It affirms the leading Australian defamation cases, including Voller and Webb v Bloch.
- Adopting the Canadian approach has brought Australia closer to alignment with other common law countries.
- The decision is particularly impactful for businesses operating search engines or sharing hyperlinks to third-party material.
- Directing someone to a defamatory publication may still sometimes amount to publishing the defamatory material.
If you have concerns about any communication that could be defamatory, LegalVision provides ongoing legal support for all businesses through our fixed-fee legal membership. Our experienced dispute resolution lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 1300 544 755 or visit our membership page.
Frequently Asked Questions
Only individuals, certain not-for-profit corporations and corporations with ten employees or less can sue for defamation.
There are many defences to defamation, making this law very complex. Some available defences include truth or justification, honest opinion, public interest, innocent dissemination and triviality.
No, following Voller, a party need only voluntarily participate in publishing defamatory material to incur liability. Intentional publication is not required for defamation liability to arise.
Yes, the Voller principles still apply. If a customer posts defamatory comments on your business website or social media, your business may be responsible regardless of whether you were aware of the defamatory material.
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