August 19, 2022
In a major reversal, Australia’s highest court found Google not liable for defamatory content linked through search results, ruling that the Alphabet subsidiary “was not a publisher” of the objectionable content. Google was sued for defamation for a 2004 article appearing in its search engine results, and both the trial court and a circuit court of appeals held Google responsible as a “publisher” because it was instrumental in circulating the contents of the offending article. The lower courts rejected Google’s reliance on the statutory and common law defenses of innocent dissemination and qualified privilege.
“The High Court, by majority, found that the appellant was not a publisher of the defamatory matter,” the court wrote of Google LLC v. Defteros, reasoning that Google “did not lend assistance” to newspaper The Age in communicating allegedly defamatory matter in an article about organized crime to third party users.
“The provision of a hyperlink in the Search Result merely facilitated access to the ‘Underworld’ article and was not an act of participation in the bilateral process of communicating the contents of that article to a third party,” the court wrote. “’A hyperlink is content-neutral,’ a court opinion said. ‘A search result is fundamentally a reference to something, somewhere else,’” The Wall Street Journal reports.
“Google warned it could be forced to censor its search results if the higher court upheld the court of appeal’s decision, which would have a ‘devastating’ impact on the functioning of the Internet,” The Guardian writes of the case, noting “five of seven high court justices found in Google’s favor, ruling the search engine’s results ‘merely facilitated access’ to The Age’s story, which was not enough to amount to publication in a legal sense.”
The plaintiff in the original case, attorney George Defteros “had clients including the gangsters Alphonse Gangitano and Mario Condello, and the underworld identity Mick Gatto,” according to The Guardian, which notes “the lawyer was charged alongside Condello with conspiracy and incitement to murder the killer Carl Williams, his father George and another man, although the charges against Defteros were later withdrawn.”
Defteros sued Google in 2016, winning his argument that the search engine’s inclusion of The Age article about the attorney’s relationship with his clients had defamed him. “Google was notified of the defamatory article in February 2016, 11 years after it was published, but did not remove it until December that year,” The Guardian reports.
“In June, a lower-court judge ordered Google to pay about $515,000 over videos posted on its YouTube platform that were found to be defamatory,” WSJ says, adding that in 2021 “the high court ruled that newspapers and television stations are liable for users’ comments on articles the papers and stations post on Meta Platforms Inc.’s Facebook service — a decision some legal experts said could hinder media companies’ ability to promote important public-interest journalism.”
Australia’s tech and social media lawmaking has gained global attention on many issues of first-impression, including in 2021 requiring digital platforms pay news publishers for content they link or reproduce.