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Landmark High Court google defamation ruling – Libel & Defamation



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The High Court last week handed down a landmark defamation
ruling concerning whether Google was regarded as having been the
publisher, for defamation law purposes, of the results of Google
searches

Five members of the Court (with two judges dissenting) held that
Google was not the publisher of material derived from searches
using the Google search engine.

The plaintiff in the case was the Melbourne criminal law
solicitor George Defteros. In 2004 during the height of the
Melbourne gangland wars he was charged with conspiracy to murder
and incitement to murder Carl Williams and was committed to stand
trial. Before the matter came to trial the DPP withdrew the charges
against him. However prior to that occurring The Age newspaper
published an article entitled “Underworld loses valued friend
at court” which Defteros considered defamed him. Defteros did
not commence defamation proceedings against The Age but in 2016
Defteros caused to be sent to Google a “removal request
form” requesting that The Age article be removed from the
results of Google searches. When Google failed to comply he
commenced defamation proceedings in the Victorian Supreme Court
against Google asserting that it had been involved in publishing
the article which defamed him. The trial judge held that the
article was defamatory of Defteros. The primary issue before the
High Court was whether Google was actually involved in publication
of the article.

The Court considered the way in which the Google search engine
operates, by way of trawling the web for relevant webpages and
creating hyperlinks which the user can click on to take them to the
website in question.

The majority of the Court (by way of three separate judgments)
took the view that the hyperlinks created by way of google searches
were merely tools to enable the user to navigate to another
webpage. And further that the creation of those hyperlinks by
Google did not amount to “enticement” on the part of
Google for the user to click on the hyperlink. In those
circumstances, Google was not to be regarded as the publisher of
the article in question.

In terms of the approach taken by the dissenting judges, Keane J
stated that:

“Google’s search engine operates, as intended in
accordance with its design, to respond to a user’s search query
by facilitating near-instantaneous access by hyperlink to
publications on topics relevant to the user’s query. For the
purposes of the law of defamation in Australia, that is sufficient
communication of the content of the work of the primary publisher
to the user of Google’s search engine.”

whilst the other dissenting judge Gordon stated that:

“Where, as here, the creator and operator of a search
engine system has the intention that third parties will access and
read news articles that are hyperlinked in the search engine
results generated by that system, it is the publisher of the news
articles under the strict publication rule.”

Conclusion

The contrasting approaches taken by the majority and the
dissenting members of the Court are quite fascinating. Obviously
this decision will make it much more difficult for Australian
plaintiffs to sue Google for defamation in the future, unless the
defamatory content is for instance embedded in and on display in
the hyperlink generated by the result of the Google search. However
in terms of more practical implications it is possible that going
forward Google may be more resistant to requests for defamatory
webpages to be removed from the results of google search results,
knowing that Google has near blanket immunity in Australia in
respect of its search engine and the results generated by it.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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