Crucial win for search engines – High Court rules in favour of Google

On 17 August 2022, the High Court of Australia determined that Google was not liable for defamation as a publisher by making available to users a hyperlinked article searching and seeking to navigate the internet using its search engine which could lead users to defamatory material (Google LLC v Defteros [2022] HCA 27).

Background

The respondent lawyer, who specialises in high profile criminal law cases, sued Google for defamation as a publisher after Google refused to remove a hyperlink to an alleged defamatory newspaper article. Google denied being a publisher.

The Victorian Supreme Court at first instance, and Victorian Court of Appeal (Defteros v Google LLC [2021] VSCA 167), found in favour of the respondent finding that Google effectively ‘incorporated … the content’ of the article by generating a link to the story and was thereby assisting in publishing/communicating the defamatory material as a secondary publisher.

High Court of Australia

Google appealed to the High Court. The question for the High Court was whether Google’s search results directing a user to the webpage of another could constitute participation in the communication of a defamatory matter.[1]

The High Court stated that ‘a hyperlink is merely a tool that enables a person to navigate to another webpage’[2].

The High Court, in a 5-2 majority, effectively held that Google facilitating or assisting[3] a person’s access to the contents of another’s webpage is not participating in the bilateral process of communicating its contents[4].

Justices Keane and Gordon, in the minority, found  Google to be a publisher for reasons including that whilst ‘Google does not contribute to the content of the works which its search engine disseminates, it’s search engine facilitates access to those works[5] and it is ‘sufficient communication of the content of the work of the primary publisher [be it defamatory in nature] to the user of Google’s search engine.’[6]

Justice Gordon said ‘Google’s attempt to portray itself as passive has an air of unreality and it [Google] cannot deny that it is involved in the publication of those news articles.’

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