Can Google’s search engine be held liable for defamation?
1 July 2021
An Australian court has just handed down a significant decision in respect of Google, and its potential liability for defamation by its search engine results. The decision concerns liability for both defamatory material provided for as a synopsis – or “snippet” – in its search results, and also liability for defamatory material contained in articles to which it provides hyperlinks.
In Defteros v Google LLC [2021] VSCA 167, the Victorian Supreme Court of Appeal upheld an earlier decision of the Supreme Court of Victoria, which had held that Google must pay damages of Aus$40,000 for having defamed the Plaintiff lawyer. Most significantly, it upheld the finding that Google was a “secondary” publisher of articles linked by its search engine results and was therefore liable, after having been put on notice of its existence, for defamatory content to which it provided links.
While the decision appears to be inconsistent with current UK and EU jurisprudence on hyperlinking, it can be seen as the latest in a chain of decisions from Australia and New Zealand which have sought to question Google’s position as a passive, and innocent, link in the publication chain. It is, therefore, a decision which could have significant implications to the search engine provider should it be followed elsewhere.
The legal liability of search engines
The first significant case to consider the liability of internet search engines for the results which they publish was the English case of Metropolitan International Schools v Designtechnica Corp & Ors [2009] EWHC 1765 (QB). The plaintiff claimed that the first-named defendant’s website, which hosted bulletin boards, contained defamatory postings. He also sought to bring proceedings against Google for the manner in which material appeared in the search engine snippets which provided links to the allegedly defamatory remarks about the plaintiff.
When the he sought to serve Google out of the jurisdiction, however, the English High Court upheld Google’s objection on the basis that it could not be held to be a publisher of the material in question. The Court held that “[Google Inc] cannot be characterised as a publisher at common law. It has not authorised or caused the snippet to appear on the user’s screen in any meaningful sense. It has merely, by the provision of its search engine, played the role of a facilitator.”
Significantly, the Court held that Google could not considered to be a publisher of the snippets even after it was notified that a search had prompted the offending material. The court stressed the difference between search engines and hosts of websites – “It is not possible to draw a complete analogy (between a search engine) with a website host. One cannot merely press a button to ensure that the offending words will never reappear on a Google search snippet; there is no control over the search terms typed in by future users. If the words are thrown up in response to a future search, it would by no means follow that the third defendant (Google) has authorised or acquiesced in that process.”
The only proceedings in this jurisdiction to consider the operation of Google’s search engine is Savage v Data Protection Commissioner and Google Ireland [2018] IEHC 122. That was a case, however, grounded in data protection rather than defamation, with the Court remarking that different factors may be at play should the claim be one of defamation. (An analysis of that case can be read here). Nonetheless, it is significant that the Court stated that the operation of Google’s search engine is “an automated process where individual items of information on the internet are collated automatically and facilitate the user searching particular topics or names,” a comment which would appear to suggest that it approves the decision of the English High Court in Metropolitan as regards Google’s neutral status in the publication chain.
The question of Google’s liability for hyperlinks in its search engine has not been considered by the CJEU, but ECtHR case law concerning hyperlinks provided by journalists to defamatory publications may be of assistance. In Magyar Jeti ZRT v Hungary (App No 11257/16, 4 December 2018), the applicant Hungarian media company published an online news report which included a hyperlink to a YouTube video, in which an individual made a series of defamatory remarks about a political party. At first instance, the media company was held liable for the remarks to which it provided the link, a decision which it appealed to the Strasbourg court. That court upheld the complaint, and in considering whether a party should be held liable for material to which it provides a hyperlink, it identified the relevant factors as being whether:
a) the provider of the hyperlink endorsed or repeated the impugned content;
b) the degree of encouragement that was offered to follow the hyperlink; and
c) whether the provider should reasonably have known that the material they were providing a link to contained defamatory material.
Due to the necessity to provide some sort of enticement to follow a hyperlink, it might reasonably have been assumed that search engine results, which appear not to provide any sort of approval or endorsement of content to which they provides links, would escape liability. This situation, however, has been cast into doubt by recent decisions in Australian courts, considered below, of which Defteros is but the latest in a growing line of authority.
The Australian proceedings
In a series of decisions dating back to 2012, the Australian courts have chosen to reject the analogy between search engines and internet access providers which has been favoured by the English courts. Instead, they have held that search engines ‘intend’ to publish search results,1 and thatthe correct approach was to treat search engine operators as publishers, but with access to the innocent dissemination defence.
In a series of cases – Trkulja v Google (No 5) [2012] VSC 533, Trkulja v Google Inc [2018] HCA 25 and Google v Duffy [2017] SASCFC 130 – the regional Supreme Courts, and the final Court of Appeal in Australia – the High Court of Australia – have held that Google should be considered a “secondary publisher” of the material contained in the results produced by its search engine. While stating that the search engine provider should probably not be held liable for any information it publishes before being put on notice of its existence,2 the courts have also held that it would have open to it the defence of innocent dissemination after being put on notice, so long as it acted expeditiously to deal with the offending material.
The courts have queried the submission by Google that it plays an entirely passive role in the publication of its search engine material, and should therefore not be held liable for any defamatory material displayed as “snippets” within those results, or for any defamatory material in articles to which they provide hyperlinks.3 InTrkulja v Google Inc. [2015] VSC 635, the Court considered an application to strike out proceedings by Google in circumstances where the plaintiff sought to hold them liable for snippets which suggested that he was a member of the Melbourne criminal underworld. The Court stated that while algorithms may operate the search engine automatically,“employees of Google create the algorithms,”and if Google intended to publish material on the internet in response to user queries, then it is at least arguable that this makes Google a publisher of the material.
In Google v Duffy [2017] SASCFC 130, the Supreme Court of South Australia considered similar issues involving a plaintiff who had received psychic readings via the internet about which she was dissatisfied. Various defamatory remarks about her were published online, and linked by Google’s search engine. Ms. Duffy sought to make Google Inc liable not just for the snippets that appeared in the search engine results, but as a re-publisher of the remarks themselves due to the hyperlinks that these snippets generated.
At first instance, the Court had found that Google was conclusively liable as a secondary publisher after it had been notified of the comments’ defamatory nature. It noted that the information snippet and hyperlink were integrated together in the search engine result, it held that the same principles should be applied to both, adding that “it is difficult to see as a matter of principle why Google would not be liable in the same manner as a person who photocopies a defamatory page and hands it to a third party.” Consequently, it found Google to have re-published the material in the underlying article, once it had been put on notice of its defamatory nature and had failed to act on foot of such notice. It awarded Ms. Duffy Aus$100,000 in damages.
Google appealed the findings to the Full Court, which upheld the original findings. It held Google to be “an indispensable, proximate step in its publication to the searcher. It is Google which designs the program which authors the words of the snippet paragraph. Google’s conduct is the substantial cause of the display of the search results on the screen of the searcher’s device.” Having thus held, the Court stated that Google should be not considered to be a ‘primary’ publisher of material contained within its search engine results, due to the sheer volume of searches conducted, and knowledge of their defamatory contents should not be attributed to it until notice is given. As a secondary publisher, the Court stressed that the defence of innocent dissemination would be open to Google, but only so long as it acted to take down the offending links “a reasonable time” after being notified of their presence.
In relation to the question of whether Google could be considered to be liable for the re-publication of defamatory material to which it provided hyperlinks, the Court considered the degree to which the search engine snippet may have encouraged the reader to follow the hyperlink to the defamatory material. It concluded that there was a sufficient degree of encouragement present. The Court held that, through the inclusion of a snippet from the defamatory publication, which accompanied the hyperlink to that publication, the search engine result had ‘incorporated’ the defamatory statement, and had done so in the manner of “the person who places a post-it note on a book which reads ‘go to page 56 to read interesting gossip about X.”
The Defteros proceedings
Mr. Defteros is an Australian lawyer. In 2004, articles were published which linked him to organised crime, and Mr. Defteros himself was charged was conspiracy to murder certain figures in the Australian underworld, through charges against him were subsequently dropped.
His proceedings against Google were based on results that were produced by Google’s search engine which included photographs of him with various members of the Australian criminal fraternity, and provided hyperlinks to articles about him, including an entry on Wikipedia, which Mr Defteros claimed were defamatory. He instituted proceedings against Google, narrowing his claim to the internet giant being liable as a ‘secondary’ publisher of this material.
As in Duffy, Mr. Defteros claimed that by providing hyperlinks to defamatory articles, Google could be considered to have re-published this material, and could therefore be held liable for its content should it fail to remove the material after being put on notice of its existence. At first instance before the Supreme Court of Victoria, in Defteros v Google LLC [2020] VSC 219, Google claimed that it was not the publisher of any material on its search engine, as the results produced occurred as a result of an automatically generated, without human intervention.
The Court rejected the suggestion that Google’s systems were entirely automated and, in a passage which is consistent with the findings inTrkulja and Duffy (above), commented that “The Google search engine … is not a passive tool. It is designed by humans who work for Google to operate in the way it does, and in such a way that identified objectionable content can be removed, by human intervention.” The court held that Google was not a primary publisher of the material, and so could not be held liable for its publication before it was put on notice. It stressed, however, that once such notice had been given about the defamatory content, it was incumbent on the company to remove offending content from its search engine results in an expeditious manner.
On the subject of Google’s liability for re-publication of the article to which it provided the hyperlink, the Court disagreed with the previous decision in Duffy that what was necessary was that the search result “incorporated” the offending defamatory statement. Interestingly, the Supreme Court of Victoria held that this “appears to me to conflate the two distinct issues of publication and meaning.”4 The court considered that the Duffy decision was based on a danger that holding Google liable for its hyperlinks would have a “chilling” effect on the effective functioning of the internet.5 Even if this were true, the Court noted that “whether there are policy reasons to limit the extent to which a search engine provider is a publisher, for the purposes of the law of defamation, is a matter for law reform bodies to consider and, ultimately, for legislatures to address.”
The Court held that a correct statement of the law must be that Google’s provision of a hyperlinked search result facilitates, and is instrumental to, the communication of the content of the webpage to the user. As in Trkulja and Duffy, the Court accepted that Google would have the defence of innocent dissemination open to it, and that it could not be liable for publication of any of the matters complained of until a reasonable time after it was notified that its search results included the material complained of. For the period of time that it failed to act in respect of the offending material that it published, the Court awarded $40,000 in damages.
Google appealed the decision, and in June 2021 the Victorian Supreme Court of Appeal upheld the lower court’s finding in Defteros v Google LLC [2021] VSCA 167. In its appeal, interestingly, Google no longer sought to rely on the fact that its search engine results were produced by an automated process without human involvement as part of its claim that it should not be considered to have “published” the material contained in its results.6 Instead, it focussed on the submission that it would need to have incorporated some of the defamatory material into the search engine result, and/or “enticed” or “encouraged” the user to follow the hyperlink to the defamatory material. A search engine result which provided a bare hyperlink without any accompanying defamatory material, Google submitted, could not be held to have published the defamatory material itself.
The Court of Appeal rejected this argument, holding that the hyperlinks were an “enticement” to the user to click on the snippets and follow the links to the defamatory article. The Court held that, read together, the text of the search result and the insertion of the URL link “filtered the mass of material on the internet and both directed and encouraged the reader to click on the link for further information.”7
The Court, importantly, drew a distinction between knowledge of the existence of the material, and knowledge as to whether such material was defamatory. It held that the defence of innocent dissemination involved an analysis of the former, rather than the latter. The relevant question was whether the defamatory material had been brought to Google’s attention by the Plaintiff, rather than whether Google could reasonably have ascertained whether or not it was defamatory, holding that Google’s claims that it was “not well placed to assess whether the particular content was true” was irrelevant.8
The Court of Appeal rejected Google’s defence of qualified privilege, which it had also advanced at first instance. In so doing, the Court focussed not on Google’s previous submission that it had some form of “duty” to respond to internet searches performed by its users, and provided search engine results “for the common convenience and welfare of society.” 9 It focussed instead on whether the recipients of the information had an “interest” in receiving it, and queried whether the required interest was present. It held that at least some of the readers would have followed the hyperlinks purely out of curiosity, noting that “at common law the fact that a recipient of defamatory material may seek it out because it is interesting or thought provoking, is insufficient, of itself, to constitute the requisite interest in the recipient as a foundation for the common law defence.”10
Conclusion
As stated above, the very recent decision of the Victorian Supreme Court of Appeal in Defteros is a significant one. It now appears that, regardless of whether any defamatory material is incorporated into the search engine “snippet”, the provision of a hyperlink to defamatory material potentially makes Google liable as the publisher of such material, and places an onus on the search engine provider to remove the link after being put on notice of its existence. This clearly has major implications for the operation of Google’s search engine, and as a result the decision may well be appealed by Google to the court of final appeal, the Australian High Court.
It should also be noted that the decision would appear to be inconsistent with decisions in this jurisdiction, the UK and the CJEU, though none of those have dealt precisely with the factual matrix of Defteros.11 The decision of the High Court in Savage v Data Protection Commissioner, discussed above, certainly suggests a tension with the findings of the Australian courts. It is notable, however, that the High Court remarked at the end of its decision that “the law in respect of may well change in due course when the Superior Courts consider … the results of searches in the context of the law of defamation.”12
It will certainly be interesting to see whether the reasoning in Defteros et al is followed if and when the issue of Google’s potential liability in defamation arises in this jurisdiction.
Ends.
1 This echoes a relatively early decision of the High Court of New Zealand, A v Google New Zealand Ltd [2012] NZHC 2352,, which held that ‘Search engines have deliberately chosen to return ‘snippets’ to make their product more amenable to users and thus increase revenues.”
2 In Trkulja v Google Inc [2018] HCA 25, the High Court of Australia queried even this position, suggesting that “contrary to the Court of Appeal’s approach, there can be no certainty as to the nature and extent of Google’s involvement in the compilation and publication of its search engine results until after discovery.”
3 InTrkulja v Google (No 5) [2012] VSC 533, the Supreme Court of Victoria disagreed with the English High Court’s decision in Metropolitan, which considered the search engine operator to be simply a ‘facilitator’: ‘(h)is Lordship does not appear to have given any consideration to the fact that internet search engines, while operating in an automated fashion from the moment a request is typed into them, operate precisely as intended by those who own them and who provide their services.’
4 Defteros v Google LLC [2020] VSC 219, at para 50.
5 This is a recurring theme in the jurisprudence of the CJEU.
6 It had relied on this defence not only at first instance in Defteros, but also in the Trkulja and Duffy proceedings.
7 Defteros v Google LLC [2021] VSCA 167, at para 87.
8 Defteros v Google LLC [2021] VSCA 167, at para 146. It is unclear as to whether this is consistent with an interpretation of the defence of innocent publication in this jurisdiction provided for by s.27(1)(c) of the Defamation Act 2009. See, inter alia, Muwema v Facebook [2016] IEHC 519.
9 Google submitted that there was a public interest in the efficient running of its search engine, that it provided results “common convenience and welfare of society”, and that the company has a “duty” to respond to searches. A similar argument had been advanced by Google, and rejected by the Court in Duffy v Google [2015] SASC 170.
10 Defteros v Google LLC [2021] VSCA 167, at para 182.
11 InYZ v Google Inc & Ors [2015] NIQB 103, the Northern Ireland High Court considered Google’s liability for search engine results in proceedings brought for breach of privacy and data protection rights. While the Court held that the plaintiff had an arguable case against Google, the hearing concerned only an application to serve Google out of the jurisdiction, and no further information on any substantive proceedings is available.
12 Savage v Data Protection Commissioner and Google Ireland [2018] IEHC 122, at para 40.