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When is an online publisher a publisher?

14 September 2022

#Dispute Resolution & Litigation, #Technology, Media & Telecommunications

Published by:

Millie Clayton

When is an online publisher a publisher?

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. If you have any questions about this article or would like to get in touch, please contact us below or send in your enquiry here.

Authors: Susan Goodman & Millie Clayton

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

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Millie Clayton

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