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Defteros v Google LLC

Defteros v Google LLC

Case [2021] VSCA 167 17 June 2021

Appeal

Defamation

Qualified Privilege

Innocent Dissemination

Triviality

Defamation

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0049

GEORGE DEFTEROS	Applicant
v
GOOGLE LLC	Respondent

S EAPCI 2020 0050

GOOGLE LLC	Applicant
v
GEORGE DEFTEROS	Respondent

S EAPCI 2020 0065

GOOGLE LLC	Applicant by Cross-Application
v
GEORGE DEFTEROS	Respondent by Cross-Application

S EAPCI 2020 0066

GEORGE DEFTEROS	Applicant by Cross-Application
v
GOOGLE LLC	Respondent by Cross-Application

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JUDGES:	BEACH, KAYE and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 May 2021
DATE OF JUDGMENT:	17 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 167
JUDGMENT APPEALED FROM:	[2020] VSC 219; [2020] VSC 324 (Richards J)

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DEFAMATION – Appeal – Publication – Whether internet search engine provider published search results and webpage reached by clicking on hyperlink within search results once provider on notice of defamatory material – Whether search result incorporated webpage reached by clicking on hyperlink – Whether search result enticed searcher to click on hyperlink – Google Inc v Duffy (2017) 129 SASR 304 considered.

DEFAMATION – Appeal – Imputations – Whether pleaded imputations conveyed by matter complained of – Trkulja v Google LLC (2018) 263 CLR 149 referred to.

DEFAMATION – Appeal – Innocent dissemination – Innocent dissemination at common law – Statutory defence of innocent dissemination – Whether internet search engine provider a secondary publisher of defamatory material – Where internet search engine provider has notice of defamatory material on webpage hyperlinked to search result – Notice given to search engine provider containing untrue assertions – Whether grossly inaccurate notice given by plaintiff sufficient to put internet search engine provider on notice or risk – Defamation Act 2005, s 32.

DEFAMATION – Appeal – Qualified privilege – Common law qualified privilege – Statutory qualified privilege – Whether internet search engine provider had relevant duty or interest to make statement and whether search engine user had corresponding duty or interest to receive statement – Mere curiosity or idle interest not recognised as being a legitimate interest or as giving rise to a legitimate duty – Whether search engine users had an interest or apparent interest in receiving information – Defamation Act 2005, s 30.

DEFAMATION – Appeal – Triviality – Whether circumstances of publication were such that the plaintiff was unlikely to sustain any harm – Defamation Act 2005, s 33.

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APPEARANCES:	Counsel	Solicitors
For Mr Defteros in all proceedings	Mr D P Gilbertson QC with Mr J A Castelan and Mr T Guthrie	Defteros Lawyers
For Google LLC in all proceedings	Mr B Walker SC with Ms G L Schoff QC with Ms C L Alden	Johnson Winter & Slattery

TABLE OF CONTENTS

Issues in this Court

The 2016 Proceeding

The 2017 Proceeding

Background facts

The alleged publications in more detail

The Web Matter

The Third Matter

The Fourth Matter

The Google search engine

PUBLICATION

Publication — reasons and conclusions of trial judge

Publication — grounds of appeal and of notice of contention

Google’s proposed ground 1

Duffy (FC)

Parties’ submissions

Consideration

Mr Defteros’ proposed ground 1

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Defteros v Google LLC

Details

AGLC: Defteros v Google LLC [2021] VSCA 167
Case: [2021] VSCA 167
Decision Date: 17 June 2021

CaseChat Overview and Summary

The appeal in Defteros v Google LLC involved the plaintiff seeking damages for defamation from Google LLC for the publication of allegedly defamatory search results. The case was heard in the Federal Court of Australia. The primary issues before the court were whether Google LLC published the defamatory material, the nature of the imputations, the applicability of the defences of innocent dissemination and qualified privilege, and the triviality of the publication.

The legal issues included determining whether Google LLC acted as a publisher by displaying the search results and the webpage accessed via a hyperlink within those results, once they were aware of the defamatory content. The court also considered whether the search results incorporated the content of the webpage accessed by the hyperlink and whether Google LLC enticed users to click on the hyperlink. The court examined whether the pleaded imputations were conveyed by the material complained of and whether Google LLC was a secondary publisher of the defamatory material, triggering the statutory defence of innocent dissemination. Additionally, the court assessed whether there was a common law or statutory qualified privilege that protected Google LLC’s actions.

The court found that Google LLC did not publish the defamatory material by displaying the search results and hyperlink. The search results did not incorporate the content of the linked webpage, and Google LLC did not entice users to click on the hyperlink. The court held that the pleaded imputations were not conveyed by the search results. Regarding the defences, the court determined that Google LLC was not a secondary publisher under the statutory defence of innocent dissemination as they did not have notice of the defamatory material on the linked webpage. The court also concluded that there was no common law or statutory qualified privilege applicable to the facts. Finally, the court found that the publication was not trivial under the circumstances.

The court dismissed the appeal, and the decision of the lower court was upheld. Google LLC was not liable for the publication of the defamatory material.

Orders