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When is an online publisher a publisher? – Social Media



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In the recent case of Google LLC v Defteros [2022] HCA
27 (Google LLC v Defteros), the High
Court held that Google LLC was not a publisher of a defamatory
matter by providing search results which contained hyperlinks to a
defamatory article.

This is in contradistinction to the High Court’s finding in
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 25
(Fairfax v Voller), handed down in
September last year, where the High Court held that anyone who
hosts or facilitates online or social media content may be held
liable for defamatory comments made by third parties. So what’s
the difference?

Google v Defteros

On 17 August 2022, the High Court (5-2) allowed an appeal from a
judgment of the Court of Appeal of the Supreme Court of Victoria in
Google LLC v Defteros. The appeal concerned whether the
appellant, Google LLC, had published defamatory material by
operating an internet search engine which, in response to a
user-designed query, provided search results including a snippet of
content and a hyperlink to a webpage which contained a defamatory
article.

In 2016, the respondent, Mr Defteros, became aware that if he
‘googled’ his name, a hyperlinked article published in 2004
by The Age newspaper appeared as a search result. Mr
Defteros alleged that the article defamed him, as it suggested that
he had crossed professional lines as a criminal defence lawyer by
becoming a ‘confidant’ of criminals. The trial judge held
The Age article was defamatory of Mr Defteros. This
finding was unchallenged on appeal and Google LLC did not remove
the search result after a request that it do so by Mr Defteros.
Consequently, Mr Defteros pursued Google LLC, alleging that it had
published the defamatory matter.

Google LLC contended that the article was not written by an
employee or agent of Google, but by a reporter from an independent
newspaper, with no connection to the company.

High Court findings

A majority of the High Court held that Google LLC was not a
publisher of the defamatory matter because it did not lend
assistance to The Age in communicating defamatory material to third
party users. The generation of organic search results, which
included a hyperlink to a defamatory article, did not involve
Google LLC publishing that hyperlink. Publication of the defamatory
matter involved an act of an independent user clicking on the link
and going to the page. The High Court viewed the search results as
merely facilitating access to the article and not an act of
participation in the bilateral process of communicating the
contents of that article to a third party.

Snippet content

The High Court left open the question of whether Google LLC
would be found to be a publisher of a defamatory matter if the
Google LLC search results contained snippets of the defamatory
matter. As Kiefel CJ and Gleeson J stated, “it was not
suggested by the courts below that the appellant, as an internet
search engine operator, actually communicated the defamatory
material. It is of course possible that search results may
themselves contain matter which is defamatory. …But that is not
the case.”

Edelman and Steward JJ considered that the snippet of The Age
article was an “enticement to the reader…to click
on the hyperlink to obtain more information”. They also stated
that “a clear distinction must be maintained between the act
of publishing the selection of search results and snippets, which
the appellant does, and the act of conveying material on
third-party webpages.”

Sponsored posts

The High Court also left open the possibility of a different
outcome had the Google LLC search results yielded a sponsored post
linking the user to The Age article. Gageler J stated that unlike
in Google Inc v Duffy,1 no feature of the
content of the search result in the present case was found to have
operated as an “enticement or encouragement to click on the
hyperlink”.

Fairfax v Voller

Our
previous discussion on Fairfax v Voller can be found
here
. In short, Mr Voller alleged that media organisations who
maintained Facebook pages and allowed people to comment on
publications on those Facebook pages were liable for defamatory
posts with respect to Mr Voller’s incarceration at a youth
detention centre made by such third-party Facebook users.

The High Court found that anyone who hosts or facilitates online
or social media content may be held liable for defamatory comments
made by third parties. It was held that by running Facebook pages,
the media groups participated in communicating any defamatory
material posted by third parties and were therefore responsible for
those comments.

The difference

The difference between the Google LLC case and the Voller case
is that the court held that Google did not provide a forum or place
where a defamatory matter could be published and did not encourage
the writing of a comment in response, whereas the media owners who
maintained Facebook pages were held to have “invited and
encouraged comment about the articles from Facebook
users”.

Takeaways

Google LLC v Defteros suggests that search engines may
be held liable for the publication of snippets that contain
defamatory material and for sponsored search results, but will not
be held liable for their search results yielding links to
defamatory material.

Holding Redlich has extensive experience in advising and
assisting clients in media and defamation matters. We are
well-placed to assist you in this ever-developing environment.

Footnote

1(2017) 129 SASR 304 at 467 [599].

This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader’s
specific circumstances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
relevant to your circumstances please contact one of the named
individuals listed.



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