Is a search engine a publisher for defamation purposes when an organic search result returns a hyperlink to materials that are defamatory? According to a divided High Court of Australia in Google LLC v Defteros [2022] HCA 27, it is not. However, search engines may still be liable for defamation if search results encourage or entice users to click on links or if contextually the results amount to adoption or endorsement of the specific content linked to.
The Google case illustrates the struggle courts have in applying common law defamation principles to modern forms of making content available. Canadian readers will also be interested the High Court's treatment including criticisms of the Supreme Court of Canada's leading online defamation case, Crookes v Newton.
Background
The respondent was a criminal lawyer who sued Google because when his name was searched the results yielded the following:
"Underworld loses valued friend at court -SpecialsGanglandKillings ...
www.theage.com.au > Features > Crime & Corruption ?
June 18 2004 - Pub bouncer-turned-criminal lawyer George Defteros always prided himself on being able to avoid a king hit – The Age Online"(referred to in the case as the "Underworld Article").
If the person conducting the search clicked the hyperlink in the title in the search result, the Underworld article and a photograph of the respondent would be displayed. He claimed that the article and photograph were defamatory. The plaintiff succeeded before the primary judge and the Court of Appeal, but lost 5-2 before the High Court with the 7 judges delivering 5 different sets of reasons.
Reasons of the High Court
Two of the Justices (Kiefel and Gleeson) sided with Google holding that a mere hyperlink does not communicate materials at the link or entice users to click on the link. These Justices somewhat agreed with the decision of Abella J, who wrote the reasons of the plurality in the Supreme Court of Canada case Crookes v Newton. They found compelling her view that hyperlinks "are, in essence, references", they do not communicate its content.
These Justices also agreed with the concurring reasons delivered by McLachlin CJ and Fish J in Crooks that a hyperlink will constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content to which it links.
Cases such as Webb v Bloch show that the rules of publication apply where a person endorses, adopts or otherwise approves of defamatory matter which is to be published.
Justice Gageler agreed with the reasons of Kiefel CJ and Gleeson J. However, he went on to clarify that the provision of a hyperlink combined with other factors might amount to a publication by enticement or encouragement. He referred favorably to the Google Inc v Duffy decision of the Australia Full Court (Court of Appeal) where the content of the snippet component of several Google search results was said to have been such as to "entice" a third party to click on the hyperlink in those search results to obtain more information. However, he found that as a general proposition. "Google does not, merely by providing the search result in a form which includes the hyperlink, direct, entice or encourage the searcher to click on the hyperlink."
Justices Edelman and Stewart delivered concurring reasons. In their view, Google could not be liable for publication as it was not a joint tortfeasor and had no common intention to publish the article with the publisher of the defamatory article. At most, Google's role was not more than a facilitator. They left open liability for sponsored hyperlinks and the aggregation of search results stating "It suffices to say that it is arguable that the appellant and a third party might share a common intention to publish the content of a third-party webpage that, as a consequence of an agreement between the appellant and the third party, is promoted as a search result." In their view, the mere provision of search results did not create liability.
These judges also acknowledged that a search engine could be liable for enticement, but could not find liability by enticement in the circumstances of the case.
Justice Keane sided with the respondent and would have dismissed the appeal. In his view, Google provided search results in response to users' search queries. Those search results directed its users to webpages containing the Underworld article. Through the hyperlinks provided by Google, users were thereby enabled to have direct and nearly instantaneous access to the Underworld article. All this occurred as Google intended by the operation of its search engine in accordance with its design and in the ordinary conduct of Google's business. Google thereby participated in the publication of the Underworld article to a user of its search engine for the purposes of the law of defamation in Australia.
Justice Gordon, with whose reasons Justice Keane agreed with, also would have dismissed Google's appeal. According to her:
Google published the Underworld Article. To conclude otherwise is contrary to the strict publication rule, recently restated by this Court in Fairfax Media Publications Pty Ltd v Voller. Google intended to publish the Underworld Article in the sense that its conduct was active and voluntary. Google intentionally participated in, lent its assistance to, was instrumental in and contributed to the communication of the Underworld Article by identifying, indexing, ranking and hyperlinking it within the search result. It matters not that Google was unaware of the alleged defamatory content of the Underworld Article. The Underworld Article was accessed in a comprehensible form by third parties who clicked on the hyperlink that the Google search engine system provided in the search result. The fact that the third parties had to click on the hyperlink does not alter the conclusion that Google published the Underworld Article. For a third party to access defamatory material in a comprehensible form often, if not always, involves an act by that third party – the turning of the head; the selection, buying and then opening of a newspaper and turning the pages of the newspaper; or, here, entering search terms and clicking on a hyperlink....
When it was said in argument that Google was "agnostic" as to what hyperlinks a user will click on, that expression not only obscured the objectives, elements and operation of the Google search engine system, but was inconsistent with them. To adopt and adapt the language in Voller, Google's attempt to portray itself as passive has an air of unreality. Having taken action to obtain a commercial benefit by creating and operating a search engine that facilitates access to news articles, it cannot deny that it is involved in the publication of those news articles...
The design of the Google search engine system as a whole is intended to, and does, affect the results that are produced when a user enters a particular search query. And it is for that reason that, in seeking protection for its search results under the First Amendment to the Constitution of the United States, Google has itself successfully argued that the design of its search engine system involves the exercise of evaluative judgment.
High Court treatment of Crooks v Newton
As shown above, some judges of the High Court agreed with Justice Abella in Crooks that linking to defamatory content does not by that act alone make the person publishing the link a publisher for defamation purposes. But, there were significant disagreements with the reasons of the plurality of the Supreme Court delivered by Abella J.
Justices Kiefel and Gleeson disagreed with Abella J's view that the law of defamation was to be shaped by the policy goals of "the public interest in protecting freedom of expression and other values drawn from the Canadian Charter of Rights and Freedoms". In their view, "It is preferable to apply settled principles regarding publication to a situation presented by new technology. The result is that internet search engine results that are not themselves defamatory do not come within the purview of publication and it is not necessary to consider whether those principles should be adapted."
Keane J, also forcefully disagreed with Abella J., that the law of defamation should be limited for public policy reasons. To the contrary, the law of defamation was intended to provide a remedy for injury to reputations and limiting the scope of the tort would limit legal redress.
The plurality in Crookes v Newton expressed a concern that an unduly broad view of what is involved in publication might restrict "the flow of information and, as a result, freedom of expression", thereby creating a "chill" that risks "impairing [the] whole functioning" of the Internet. But new technologies are not launched into a world free of the laws that provide redress for injury to others; and the social value of innovation is not absolute. The concern that the availability of redress to all injured by the provider of a new technology should not unduly interfere with society's enjoyment of its benefits has traditionally been addressed, in the context of defamation, in the balancing exercises involved in the recognised defences. It has not previously been thought necessary to modify the broad scope of the traditional publication rule to render harm inflicted by new technologies entirely immune from redress. That would be the case if Google's argument were to be accepted...
To the objection that the broad understanding of publication for the purposes of the law of defamation adopted in Australia extends potential liability for defamation too widely, one may respond further that the breadth of potential liability has always been a feature of the approach affirmed in Webb v Bloch. An expansive publication rule is warranted to ensure that all persons injured by a defamatory publication should have a remedy against each person responsible for inflicting that injury whatever the "precise degree" of his or her instrumentality may be. And, as noted above, the concern that the scope of actual liability for the injury should not be unduly wide has been addressed through defences such as innocent dissemination, qualified privilege and fair comment. In the application of these defences, issues as to the relative social utility of the publication as against harm to individual reputation are addressed and balanced so as to ameliorate the potential for injustice of the broad approach to publication.
Gordon J. also did not agree that the strict publication rule should be modified in order to deal with search engines.
The law of defamation has consistently had to grapple with technological advances, which are "much older than the Internet and the World Wide Web.. The common law was not seen to require modification in order to deal with the advent of the telegraph or the telephone, radio or television, the internet or social media. And it has not been shown to require modification in order to deal with the Google search engine system and the hyperlink in this case. Google was a disseminator of the Underworld Article – a publisher. An innocent disseminator is still a publisher but has a defence to a cause of action in defamation, not a denial of the element of publication.
Keane J., also distinguished Crookes v Newton, as it did not analyze the role of hyperlinks in the context of search engines and opined that Google's search results could not be viewed as merely passive acts.
Google's search engine cannot be accurately described as a passive instrument by means of which primary publishers convey information. Google's business consists of the automated provision of relevant responses to requests for information and the enabling, by the use of hyperlinks, of near-instant access to that information at the choice of the user. Google actively ranks those responses by relevance – that is, as was said in argument on Google's behalf, in an algorithmically attempted understanding of the searcher's interest. It may be acknowledged that Google does not contribute to the content of the works which its search engine disseminates, just as it may be acknowledged that Google's search engine facilitates access to those works by opening the way to the primary publisher's webpage; but neither of these facts is inconsistent with the conclusion that Google has intentionally brought the work of the primary publisher to the attention of the user.
Justice Gordon also took issue with Abella J's assertion in Crookes that "a hyperlink, by itself, should never be seen as 'publication' of the content to which it refers".
That emphasis is misplaced for two reasons. First, Abella J relied in reasoning to that conclusion on two lines of authority – first-instance decisions of the United Kingdom and decisions from North America. Both lines of authority are inconsistent with the strict publication rule. Second, Abella J's treatment of hyperlinks as "references" which do not communicate the content of that to which they refer and require an act of a third party to comprehend that content is inconsistent with the application of the strict publication rule to publication by reference. It is necessary to address each of these matters in turn.
But the two matters relied upon by Abella J – that a hyperlink is a mere reference and that to access the content requires an act of a third party – also demonstrate that observing that a hyperlink by itself is "content-neutral" is itself a neutral consideration; it is not determinative. Knowledge of defamatory content has never been a necessary element for publication. Knowledge is addressed in the available defences.
Concluding remarks
The Google case shows that in Australia – even after the High Court judgment – there is no bright line to determine whether particular search results will be viewed as defamatory. Pure hyperlinks by themselves in search results will not be enough. However, even the justices who ruled in Google's favour left open that liability could arise, if read contextually, the text and hyperlink constitutes adoption or endorsement of the specific content in links, or amounted to encouragement or enticement to click on the hyperlinks. The court similarly ruled that a search engine could be liable for publishing sponsored or aggregated links.
The High Court decision rests uncomfortably with other decisions in the Commonwealth. For example, in Metropolitan International Schools Ltd. vs. Designtechnica Corp. [2009] EWHC 1765 (2B) (16 July 2009), a UK court held that a search engine could be liable for defamation by publishing links if it failed to de-index the search results after receiving notice.
Other courts have echoed the reasons of Justices Gordon and Keane that Google could be liable for publishing defamatory content as it does not act merely as a passive instrumental provider of third party information. For example, the Hong Kong case, Dr Yeung Sau Shing Albert v Google Inc [2014] HKCFI 1404, held that Google's use of sophisticated algorithms and other steps to produce search results made it liable as a publisher.
In my view, as a matter of law, it is plainly arguable that a search engine (including Google Inc) that generates objectively defamatory materials by its automated processes is a "publisher". . .
Whilst Google Search's algorithms weigh several factors that may be outside its control (eg information posted on the internet, search queries made by other users and/or search selections the users may ultimately pick) to generate the suggestions, its algorithms are synthesising and reconstituting input query data by previous users and web content uploaded by internet users before publishing them as suggestions. It is therefore arguable that Google Search does not simply convey information, but its Autocomplete and Related Searches features act by providing information distilled pursuant to artificial intelligence set up by Google Inc themselves by virtue of the algorithms they have created and maintained to actively facilitate the search processes. This raises a question as to whether or not Google Inc is a neutral tool, and whether or not the Autocomplete or Related Search suggestions are merely machine-generated and non-meaningful jumble of keywords....
This brings the arguments back to a more fundamental question (when shed of the modernity and complexity of the internet): as a matter of general tort principle, should or should not a person/entity remain responsible in law for acts done by his/her tool, and what are the limits of such liability (if any)?. . .
In a lengthy judgment, Punnett J said [in Century 21 Canada Limited Partnership v Rogers Communications Inc and anor doing business as Zoocassa Inc]:
A machine or a computer and the software that runs it has at some point been constructed and programmed by an individual. As noted by Sookman at 10.5:
. . . an electronic agent, such as a computer program or other automated means employed by a person, is a tool of that person. Ordinarily, the employer of a tool is responsible for the results obtained by the use of the tool since the tool has not independent volition of its own. When computers are involved, the requisite intention flows from the programming and use of the computer.
I agree with this statement. Liability is not avoided by automating the actions in question...
The reasons of Justices Keane and Gordon, while in dissent, also raise the important question as to when the law should provide meaningful redress for Internet harms and whether the law as articulated by the High Court is adequate to meet these needs.
This article was first posted on www.barrysookman.com
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