“Publication is at the heart of defamation law,” he told Lawyers Weekly.

The decision, Thomson Geer partner and media lawyer Marlia Saunders declared, is a “sensible outcome” and “welcome relief”.

This is so, she advised, given that the development of defamation law in relation to search engines “has gone off-track in recent years”.

The case, Marque Lawyers managing partner Michael Bradley said, definitely answers one question: “Search engines aren’t publishers of defamatory material which are just hyperlinked from organic search results they produce.”

That, he said, is “one piece of the puzzle in place”.

The case

In 2020, Melbourne-based solicitor George Defteros, who practises in criminal law and “acted for persons who became well-known during Melbourne’s ‘Gangland Wars’, including Dominic ‘Mick’ Gatto and Mario Condello” — successfully sued Google for $40,000, after the search engine refused to take down a hyperlink to an article by Nine-owned newspaper, The Age.

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That article detailed charges for conspiracy to murder and incitement to murder that had been brought against Mr Defteros by the Director of Public Prosecutions in 2004. In 2005, the DPP withdrew the charges.

Both the trial judge and appellate court held that The Age article had defamed Mr Defteros and that Google had published a defamatory matter, as the provision of the search result was instrumental in the communication of the content of the article by way of lending assistance to its publication.

Majority findings and dissent

By majority, the High Court found that Google was not a publisher of defamatory matter and did not lend assistance to The Age in communicating the defamatory matter contained in the 2004 article to third-party users.

Chief Justice Susan Kiefel and Justice Jacqueline Gleeson did so, Australian Bar Association president Dr Matt Collins QC outlined, “on the basis that, ordinarily, Google is not involved in the creation or original posting of the content it indexes, and its search results do not more than convey to an internet user that they may be interested in one or more of the pages linked in the results”.

Their honours held that a “search result is fundamentally a reference to something, somewhere else. Facilitating a person’s access to the contents of another’s webpage is not participating in the bilateral process of communicating its contents to that person.”

To hold that the provision of a hyperlink made Google a participant in the communication of the article, the justices argued, would “expand the principles relating to publication”, finding there is a difference between “drawing a person’s attention to the existence of an article and communicating its content”.

Justice Stephen Gageler agreed, holding that the “critical feature is that the search result is no more than a designedly helpful answer to a user-initiated inquiry as to the existence and location of information on the internet”.

Elsewhere, justices James Edelman and Simon Steward also agreed, noting — as Dr Collins recounted — that Google does not ordinarily write, authorise or have prior knowledge of the content it indexes, has no common intention with the author of that content that it be published, and does not encourage an internet user to click on any particular search result.

Justices Patrick Keane and Michelle Gordon dissented, with the justices each considering, Dr Collins detailed, that the case was resolved by an application of the principles in Webb v Bloch and Fairfax Media v Voller, “in substance because, in their honours’ view, by providing search results, Google intentionally participates in the process of publication of linked content to any person who clicks on the link and to whom the linked content is accordingly communicated”.  

The majority findings, O’Brien Criminal & Civil Solicitors senior defamation solicitor Stewart O’Connell said, gave the result that was to be expected, “and it accords with the established principles of defamation law”.

Decisions by Australian courts regarding defamation “have been at odds”, Ms Saunders noted, with case law in other jurisdictions, including the UK and Canada. However, she said, the High Court’s decision “brings the authorities back into line, at least in respect of hyperlinks”.

Webb v Bloch and Fairfax Media v Voller — still consistent with the times?

The test for determining whether a person had participated in the publication process, Mr Lewis explained, was first developed in 1928.

In Webb v Bloch, Dr Collins detailed, the High Court held that any act of participation in the communication of defamatory matter by a third party is sufficient to make that party a publisher for the purposes of the law of defamation.

This case was recently reaffirmed in Fairfax Media v Voller.

While the lower courts determined that these principles meant that Google was a publisher of defamatory web pages that were accessible by clicking on hyperlinks contained in its search results, Dr Collins said, in the High Court, the majority of judges held that the principles in Webb and Voller do not apply to Google search results that are not themselves defamatory, or to hyperlinks to defamatory web pages accessible via ordinary Google search results.

Mr Bradley felt that the majority’s attempts to square its logic in this case with its decision in Voller “are a little convoluted”.

“To be honest, you could apply the same rationale and come up with opposite results in both cases. It’s that fine a distinction. The clue is in how absolutely sure both the majority and minority judges were in their conclusions,” he said.

“It’s hard to argue with either point of view. The main problem is that they’re still using bricks and mortar analogies to determine liability in the digital environment, and it’s a clunky fit.”

Following on from this, one key takeaway, Bartier Perry partner Adam Cutri espoused, is that defamation law is “more from an age of print than applicable to an online era”.

This, he said, “needs to change”.

“It is important that lawyers, acting in defamation proceedings, bear in mind that the court will consider factors such as intention, invitation, encouragement and facilitation when considering whether the publication element of a defamation claim has been made out,” he submitted.

“As lawyers, it is important to inform your clients that following this decision, mere hyperlinks to allegedly defamatory subject matter, as opposed to the actual content contained in the search engine results, may be insufficient to establish the publication element.”

The Webb test, Mr Lewis posited, could plainly not have foreseen the technological advancements we have seen in the 21st century.

“That test provided a veritable feast for creative plaintiff lawyers and encouraged expensive interlocutory disputes. So, this sets a new benchmark for digital providers such as Google, and will make sense to everyday Australians that use its search function,” he said.

‘Very timely’ Stage 2 Review

Moving forward, the decision in this case is “prescient”, Mr Lewis mused, given that the liability of digital intermediaries is currently the subject of the Stage 2 Reform of the Defamation Act.

It is therefore, he deduced, “a decision that ought to be welcomed”.

Mr Bradley agreed that the recently announced Stage 2 Review by state and territory attorneys-general is “very timely”.

“One of its recommendations would entrench the majority’s ruling, giving statutory exemption to search engine providers for their ‘standard’ functions — that is, organic search results produced automatically in response to search queries,” he listed.

“The sooner we take these extremely difficult questions of liability for online publication away from the courts, and provide some certainty via statutory reform, the better.

“It’s never going to be a perfect solution, of course, but it can’t be worse than the judicial lottery we’re playing with these cases.”

This particular recommendation from the Stage 2 Reform, Ms Saunders pointed out, goes further than this latest High Court decision, in that Google would no longer be liable for defamatory material contained within “snippets” displayed in its search results.

“These developments properly refocus liability on the originators of online content, and mean those considering defamation actions will need to pursue the initial source of defamatory material, rather than digital intermediaries which are rarely in a position to assess whether the material is defensible,” she said.

Liability for sponsored links and other considerations

The decision, Dr Collins proclaimed, is “a very significant fillip for operators of search engines, exempting them in most cases from the ambit of Australian defamation law”.

“They have no need of a defence, because they are not publishers in the first place of search results that are not themselves defamatory or of defamatory web pages hyperlinked from their search results,” he said.

However, Dr Collins went on, the decision does leave open the possibility of search engine operators being liable as publishers where a search result is a sponsored link resulting from an advertising arrangement between the operator and a content provider.

This could occur, he noted, “where a ‘snippet’ in a list of search results is itself defamatory, and where there is something in a search result ‘snippet’ that amounts to encouragement or enticement of an internet user to click through to the linked content”.

Coming away from these proceedings, Mr O’Connell warned, defamation lawyers should also be careful to apply this judgment to cases outside of search engine results.

“It still remains critically important to analyse the factual circumstances in each individual matter,” he said.

“If what appears on the Google search page itself is defamatory, then you may still have an action against Google if they do not remove it on request.”

It should further be noted, Mr Cutri pointed out, that owners of social media or online platforms “have not been given the green light by the High Court for an anything goes style of discussion, debate or comment on their sites”.

However, he added, “merely hyperlinking to a defamatory article does not in itself leave online publishers exposed to legal action”.

The full case citation is Google LLC v Defteros [2022] HCA 27.