Google’s search engine is not a ‘publisher’, says Australian’s highest court
2 November 2022
Introduction
The decision of the High Court of Australia in Google LLC v Defteros [2022] HCA 27 is a hugely significant one. Asked to consider whether Google should be held legally liable for defamatory content contained in a newspaper article to which its search engine provided links, the highest court in Australia held that it should not, and in so doing overturned the decisions of two lower courts.
There are specific facts in the Defteros case which should provoke hesitancy in drawing any general conclusions about the possible liability of search engines for the results they produce. It should also be remembered that the architecture of Australia’s defamation laws is slightly different to that of other common law countries.
Notwithstanding these caveats, the decision will come as a relief to Google, by far the biggest player in the internet search engine market, and whose very business model was under threat had the decision of the lower courts been upheld.
In concluding that Google is not a publisher of articles to which it provides hyperlinks, the highest court in Australia has set down an important precedent for the moment when, as is surely inevitable, the question comes to be considered in this jurisdiction or by the EU Court of Justice.
Background
Mr. Defteros is an Australian lawyer whose practice had represented various members of the organised crime community. In 2004, articles were published by Australian newspaper The Age which linked him to organised crime, an allegation which Mr. Defteros denied. Rather than suing The Age for defamation, however, he instituted proceedings against Google on the basis the internet giant was liable as a “secondary” publisher of this material, as it had failed to delete the links after being put on notice of their existence.
His proceedings were based on the 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.
At first instance in Defteros v Google LLC [2020] VSC 219, the Supreme Court of Victoria rejected Google’s submission that, because the results produced were automatically generated without human intervention, it was not the publisher of any material on its search engine. The court held 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’s provision of a hyperlinked search result facilitates, and is instrumental to, the communication of the content of the webpage to the user.
The Court accepted, however, that Google would have the defence of innocent dissemination open to it, a defence similar to that of innocent publication in this jurisdiction. For this reason, the Court stressed that Google could not be liable for publication until a reasonable time after it was notified that its search results included the material complained of.
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, Google 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 of themselves 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.”[1]
The decision of Australia’s highest court
By a majority decision of 5-2, the High Court of Australia has now upheld Google’s appeal, a decision which resulted in five different judgements. Central to the decision of the majority was the finding that Google was not a “publisher” of the defamatory content contained in The Age’s article.
Reviewing the Australian common law in respect of what constitutes publication, the joint decision of Edelman and Steward JJ held that there are four ways in which a defendant could be held to be the publisher of a statement, namely
1) that it is the author of the statement;
2) that it either authorised someone to communicate the statement;
3) that it assists in the publication of the statement; or
4) that it ratifies or incorporates the statement.
Leading judgment: For the majority, Kiefel CJ and Gleeson J provided a joint decision. They considered the central question to be whether providing search results amounts to an act of “participation” in the communication of defamatory matter. If Google did not participate in the publication, then it could not be held to have published the material, and therefore could not be held legally liable for such material.
Central to their finding was the “content-neutral” aspect of the hyperlinks in question – ie the snippet contained in the search engine result did not, of itself, contain any defamatory material. Instead, it merely provided a link to material which may, or may not, include defamatory material. For this reason, the search result could not be considered to have any defamatory imputation of itself.
While this is consistent with the jurisprudence of the EU and the UK,[2] the joint decision failed to clarify whether, if defamatory material had been included in the snippet, that would make Google liable for publishing defamatory content. An opportunity to clarify this important issue was therefore missed.
A difficulty with this leading decision, however, was the basis for the finding that the search engine results produced by Google merely “assisted”, rather than “encouraged”, a user to find the underlying article. The court held that “it needs to be borne in mind that the person has already activated a search for particular information before the result is received.”[3]
This is problematic, as it appears to imply that the search engine result merely directs the user to the specific information they are already looking for. A user inputting the words “George Defteros”, however, may have no interest in, or knowledge of, the allegations made by the underlying newspaper article. They may even be looking for a completely different person of the same name. The belief that by putting the person’s name suggests a connection between the specific information they are looking for, and the information which the first search engine result directs them to, is certainly questionable.
The issue of whether Google should be held liable for the material because it failed to act, having been put on notice, was not considered. Having found that Google was neither a “primary” (principal) or “subordinate” (secondary) publisher of the material, it did not require the defence of innocent dissemination, and the court held that the question of whether it was on notice of the material was therefore irrelevant.
Concurring judgements: The decision of Gageler J did deal with the situation in which a hyperlink went further than providing a “content-neutral” link. He accepted that where the search engine position incorporated some of the defamatory material, its position as not being involved in the publication of the material may well change. He held that “the provision of a hyperlink might combine with other factors to amount to participation in that process of publication of matter on that other webpage.” Among those “other factors” would be something akin to a person who draws attention to a defamatory statement printed on a wall by repeatedly pointing it out to passers-by.
Interestingly, in referring to the importance of hyperlinks, Gageler J stated that “The ubiquity of the Internet and the centrality of hyperlinks to its operation make consistency in the characterisation of a hyperlink across common law jurisdictions especially desirable.”[4] He also, however, referred to the possibility that a “sponsored link” – ie a search engine result whose primary position on the results page has been paid for – might render Google liable as a publisher. This, however, would be inconsistent with the jurisprudence of the EU Court of Justice on sponsored links, as per Google v Louis Vuitton (Joined Cases C-236/08, C-237/08 and C-238/08), and does little to create the consistency across jurisdictions that the learned judge advocates.
Dissenting judgments: In his dissenting judgement, Keane J stressed that the word ‘publication’ should be given a broad meaning, as it has always been, and that the use of internet technology should not result in a narrowing of this meaning. He held that Google must be considered a participant in the process of publication as it clearly provided assistance in the publication of the underlying article to the user who read it. He re-iterated the previously-held belief that Google’s search engine was not a passive instrument by which information was relayed. Instead, he held, it operated based on algorithms created entirely by its programmers, and ranked its search engine results based on minute analysis of the conduct of its users. Notwithstanding these findings, he also stressed that a range of defences would remain open to it, most importantly that of innocent dissemination, which means that liability for the publication of defamatory material was by no means guaranteed.
In a considerably longer dissenting judgement, Gordon J. noted that Google’s indexing programme, in deciding the order or importance in which to present search results, pays particular attention to, and separately indexes, news articles, as it has a commercial interest in providing links to the best possible sources. She deduced that “Google and online news providers such as The Age Online (which generate the news articles) have an objective common intention – to facilitate access to news articles. It is why Google participates in the publication of news articles to which its search engine system provides a hyperlink.”[5] Interestingly, she reasoned that by obtaining a commercial benefit from providing links to quality news sources, Google cannot claim that it is not involved in the publication of those news articles.[6]
Gordon J also referred to the inconsistency in Google’s position as to its passive role in providing search results. She pointed out the contrary submissions it has made in US proceedings where it has been able to avail of First Amendment protection for free speech on the basis that “Google’s actions in formulating rankings for its search engine and in determining whether certain websites are contrary to Google’s guidelines and thereby subject to removal are the same as decisions by a newspaper editor regarding which content to publish, which article belongs on the front page, and which article is unworthy of publication”.[7]
Gordon J again stressed the myriad of ways in which a party can be considered part of the chain of publication, with the common link between them being that “a defendant has provided some part of the means by which a third party may, by their own acts, comprehend the defamatory material.”[8] She concluded that as it is Google’s intention that its users should follow the hyperlinks and read the underlying article, so it must be considered to have had some participation in the process of publication. Crucially, however, she stressed that this finding does not automatically impute liability for defamation – “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.”[9]
Conclusion
It is clearly desirable, as per the dicta of Gageler J, that there be consistency across common law jurisdictions in relation to the provision of hyperlinks in general, and by search engines in particular. Unfortunately, when a single decision such as Defteros can be seen to provoke starkly different findings, we appear to be no closer to achieving such consistency.
Some of the findings of the High Court will do little to dispel the suspicion that judicial bodies worldwide still fail to “get” the internet. The High Court suggested, for example, that Google’s provision of search engine results can be compared to an individual calling out the URL to the user so that they can type it into their browser.[10] This, however, appears to display a stark lack of understanding of how users navigate the world wide web in real life. The reality is that the vast majority of users find material on the internet via Google’s search engine. They do so more than 3 billion times every day of the year, and to suggest that Google’s search engine is simply an alternative to a user manually typing in the desired website address is faintly absurd.
The questionable use of analogies such as bystanders directing you to a billboard, or a librarian directing you towards a particular book, continue to be used by the courts, and argued over in relation to their relevance. This is clearly unsatisfactory in circumstances where the position of a search engine such as Google is not directly analogous to any of the examples utilised.
The finding of the Court that Google is not a primary publisher of material to which it provides hyperlinks is undoubtedly correct. It is unclear, however, how the majority of the court arrived at its decision that Google did not participate, to any degree, in the publication of the material. Even if the hyperlink itself was entirely “content-neutral”, it is surely uncontroversial that by providing (a) the exact location on the internet where the article is located, and (b) a short cut for users to users to access is, Google was at least partly responsible for conveying the defamatory statement to a third party, and therefore at least some part of the publication chain.
Google’s search engine is a phenomenally effective piece of technology, which generates huge profits for its parent company, Alphabet, due to its market dominance. This dominance exists because users trust Google to connect them, with great speed, to a vast amount of material on any given subject. Such is its dominance in the search engine market that people no longer speak of conducting an online search for material – instead, they simply talk about “Googling” it.
Despite Google’s vital role in bringing information to the attention of users, and its financial interest in making sure that the information it provides links to is both relevant and authoritative, the company maintains its stance that it is not involved, to any degree, in the publication of the material it indexes.
It might have been hoped that this significant decision by Australia’s highest court would provide some certainty as to the potential liability of Google for the results produced by its search engine. While the judgement clearly aspired to bringing consistency in the common law world to this important issue, it appears not to have done so. Instead, the split decision perhaps raises more questions than it provides answers, and leaves this legal issue lingering in a state of uncertainty.
[1] Defteros v Google LLC [2021] VSCA 167, at para 87.
[2] See Metropolitan International Schools v Designtechnica Corp & Ors [2009] EWHC 1765 (QB).
[3] Google LLC v Defteros [2022] HCA 27, at para 51.
[4] Google LLC v Defteros [2022] HCA 27, at para 65.
[5] Google LLC v Defteros [2022] HCA 27, at para 111.
[6] Google LLC v Defteros [2022] HCA 27, at para 112.
[7] Google LLC v Defteros [2022] HCA 27, at para 124.
[8] Google LLC v Defteros [2022] HCA 27, at para 134.
[9] Google LLC v Defteros [2022] HCA 27, at para 155.
[10] Google LLC v Defteros [2022] HCA 27, joint decision of Kiefel CJ and Glesson J, at para 52.