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.