Dear Colleagues;

Today’s decision of the High Court of Australia in Google LLC v Defteros [2022] HCA 27 (17 August 2022) https://eresources.hcourt.gov.au/showCase/2022/HCA/27  holds by a 5-2 majority that Google cannot be regarded for the purposes of the law of defamation as a “publisher” of a news article, for which they have simply provided a hyperlink. The decision, like a number of others on these issues in Australia, revolves around allegations of criminal activity in the “underworld” scene in Victoria. Mr Defteros, a lawyer, was accused of criminal activity but charges were withdrawn. A Google search for his name produced a link to a news article in the Age reporting allegations of criminality. The search result itself was conceded not to have been defamatory, but his claim was that Google were publishers of the linked article.

The trial judge and the Vic CA ruled that Google were publishers, that they could not rely on the defence of “innocent dissemination” as they had not removed the link a week after they were notified of it being allegedly defamatory, and that they had no defence of qualified privilege, and awarded a modest amount of damages.

There are three separate majority judgements in the High Court: Kiefel CJ and Gleeson J; Gageler J; and Edelman & Steward JJ. There were two dissenting judgements who found that Google were publishers, from Keane J and Gordon J. (Colleagues who follow Jeremy Gans on Twitter will be struck by the fact that finally Kiefel CJ and Keane J disagree on a decision!)

However, there was a distinct difference of approach even within the majority. Kiefel CJ & Gleeson J (generally supported by Gageler J) held that a hyperlink in these circumstances was the equivalent of “referring to” an article without in any sense encouraging the user to read it. They accepted that

“Adopting Webb v Bloch, any act of participation in the communication of defamatory matter to a third party is

sufficient to make a defendant a publisher, regardless of their knowledge or intent” (at [21])

But they held that merely linking to an article is not sufficient act of “participation”:

[49] It cannot be said that the appellant was involved in the communication of

the defamatory material by reference to the circumstances in Webb v Bloch and

Voller. It did not approve the writing of defamatory matter for the purpose of

publication. It did not contribute to any extent to the publication of the Underworld

article on The Age's webpage. It did not provide a forum or place where it could

be communicated, nor did it encourage the writing of comment in response to the

article which was likely to contain defamatory matter. Contrary to the finding of

the trial judge, the appellant was not instrumental in communicating the

Underworld article. It assisted persons searching the Web to find certain

information and to access it.

Their Honours distinguished the case from Voller, where the owners of the Facebook page had encouraged active comment on articles. They cited and approved of the outcome in the Canadian decision of Crooks v Newton [2011] 3 SCR 269, particularly the decision of Abella J.

The other judges in the majority, Edelman and Steward JJ, agreed that Google were not publishers, but to my mind they did so while maintaining their dissenting views from Voller that there was no publication in that case. This is logical- if setting up a Facebook page which encourages comments from readers does not amount to participation in publication of those comments, then clearly what Google did here was even more removed.

The dissenters (Keane J, agreeing with the more extensive reasons of Gordon J) held that there had been sufficient involvement of Google in providing access to the article (especially since Google’s business model highlighted news articles from “respected sources” like the Age) that Google should be held to be the publisher. They also agreed with the lower courts that Google could not rely on the defence of innocent dissemination once a week had passed after notice, and that the defence of qualified privilege was not successful.

Regards

Neil