Defteros v Google LLC
[2021] VSCA 167
•17 June 2021
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
Parties’ submissions
Consideration
IMPUTATIONS
Ground 2 — submissions
Legal principles and conclusion
INNOCENT DISSEMINATION
Notifications to Google
Defence of innocent dissemination — conclusions by trial judge
Grounds of appeal and of notice of contention
Submissions
Innocent dissemination — legal principles
Analysis and conclusion
COMMON LAW QUALIFIED PRIVILEGE
The judge’s reasons
Ground of appeal and of notice of contention
Submissions
Common law qualified privilege — principles
Analysis and conclusion
STATUTORY QUALIFIED PRIVILEGE
Statutory qualified privilege — conclusions by trial judge
Grounds of appeal and notice of contention
Statutory qualified privilege — submissions
Statutory qualified privilege — legal principles
Analysis and conclusion
TRIVIALITY
Defence of triviality — conclusions by judge in 2017 proceeding
Submissions
Triviality — legal principles
Triviality defence — analysis and conclusion
DAMAGES
COSTS
CONCLUSION
BEACH JA
KAYE JA
NIALL JA:
George Defteros is a Melbourne solicitor who specialises in criminal law. In 2016, he commenced a defamation proceeding against Google (‘the 2016 proceeding’). In 2017, he commenced a second defamation proceeding against Google (‘the 2017 proceeding’). In the 2016 proceeding, he alleged that Google published material (referred to as ‘the Web Matter’) which was defamatory of him. In the 2017 proceeding, he alleged that Google published additional material (referred to as ‘the First Matter’, ‘the Second Matter’, ‘the Third Matter’ and ‘the Fourth Matter’) which was also defamatory of him.
The two proceedings were heard together by a judge sitting in the Trial Division over two weeks in November 2019. On 6 May 2020, in accordance with reasons delivered on 30 April 2020,[1] the judge made orders giving judgment for Mr Defteros in the sum of $40,000 in the 2016 proceeding, and dismissing the 2017 proceeding.
[1]Defteros v Google LLC [2020] VSC 219 (‘Reasons’).
In relation to the 2016 proceeding, the judge found that the Web Matter conveyed the defamatory imputation that Mr Defteros had crossed the line from professional lawyer for, to confidant and friend of, criminal elements. A defence of statutory qualified privilege was made out in relation to a substantial proportion of the up to 150 people to whom it was published, but it was not established in relation to a smaller number of those people. Other defences pleaded by Google were not made out. The judge awarded Mr Defteros general damages of $40,000.
In relation to the 2017 proceeding, the judge found that the Fourth Matter complained of conveyed the defamatory imputation that Mr Defteros was a criminal associate of the Melbourne underworld group, ‘The Carlton Crew’. The judge did not consider that the other three matters complained of conveyed the imputations pleaded by Mr Defteros. She found that Google published the Fourth Matter between 27 September 2017 and the end of November 2017 to about 25 users of its search engine, including Mr Defteros’ personal assistant. The judge was satisfied that the circumstances of Google’s publication of the Fourth Matter were such that Mr Defteros was unlikely to sustain any harm, and that the defence of triviality was made out, entitling Google to judgment in that proceeding. Google’s other pleaded defences in relation to the Fourth Matter were not made out.
On 3 June 2020, the judge ordered Google to pay Mr Defteros a further $4,200 damages in the nature of interest. On the same day, the judge made orders which reflected the ‘mixed success’ of the parties in the proceedings.[2] In essence, the judge ordered:
·in relation to the 2016 proceeding, that Google pay Mr Defteros’ costs up to 15 August 2019, and a third of his costs from 16 August 2019; and
·in relation to the 2017 proceeding, that Mr Defteros pay Google’s costs up to 15 August 2019, and from 16 August 2019 Google pay one third of Mr Defteros’ costs of the proceeding.
[2]Defteros v Google LLC (Costs) [2020] VSC 324, [7].
Each order for costs was made on the standard basis. However, by agreement between the parties, costs of and incidental to a claim by Mr Defteros for Andrews damages[3] (which claim was abandoned during the trial) were excluded from the various costs orders.
[3]See Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, 235 [23] and 251-2 [79].
Issues in this Court
The orders made by the judge have spawned two applications for leave to appeal, two cross-applications for leave to appeal and a notice of contention.
The 2016 Proceeding
Google seeks leave to appeal against the $40,000 plus interest judgment given in favour of Mr Defteros. Its proposed grounds of appeal may be summarised as follows:
(1)Ground 1: the judge erred in concluding that Google published the Web Matter and erred in rejecting a defence of innocent dissemination at common law.
(2)Ground 2: the judge erred in rejecting Google’s defence of innocent dissemination at common law and innocent dissemination pursuant to s 32 of the Defamation Act 2005 (Vic) (‘the Act’).
(3)Ground 3: the judge erred in rejecting Google’s common law qualified privilege defence.
(4)Ground 4: the judge erred in rejecting Google’s statutory qualified privilege defence under s 30(1) of the Act.
In his cross-application for leave to appeal on costs, Mr Defteros contends that the judge’s costs orders should be set aside and that Google should pay his costs of the proceeding below on an indemnity basis.
The 2017 Proceeding
Mr Defteros seeks leave to appeal against the dismissal of the 2017 proceeding. He makes no complaint about the rejection of his claims with respect to the First Matter and the Second Matter. His proposed grounds of appeal concern the judge’s rejection of his claims in respect of the Third Matter and the Fourth Matter. The proposed grounds of appeal may be summarised as follows:
(1)Ground 1: the judge erred in not being satisfied that Google published the Fourth Matter (also referred to as ‘the Wikipedia article’) in the form annexed to the statement of claim after November 2017.
(2)Ground 2: the judge erred in finding that the Third Matter did not convey imputations that Mr Defteros ‘should not be entitled to practise as a lawyer’ (imputation 7) and that he ‘should not be a lawyer’ (imputation 8).
(3)Ground 3: the judge erred in accepting that a defence of triviality, pursuant to s 33 of the Act, was made out in relation to the Fourth Matter.
(4)Grounds 4 and 5: as a result of the errors alleged in Grounds 1, 2 and 3, the judge erred in failing to assess and award damages for the Third Matter and for the Fourth Matter.
(5)Grounds 6 and 7: instead of the costs orders made by the judge, her Honour should have ordered Google pay Mr Defteros’ costs on an indemnity basis.
In a notice of contention, Google seeks to support the dismissal of the 2017 proceeding on the grounds that it was not a publisher of either the Third Matter or the Fourth Matter; defences of innocent dissemination should have been upheld; defences of qualified privilege should have been upheld in relation to the Fourth Matter; and a defence of triviality should have been upheld in relation to the Third Matter, if the Third Matter was found to have conveyed the imputations relied upon by Mr Defteros.
In its cross-application for leave to appeal on costs, Google contends that the judge’s costs orders should be set aside and that Mr Defteros should pay its costs of the proceeding below on a standard basis.
Background facts
As we have already said, Mr Defteros (the plaintiff in the proceedings below) is a Melbourne solicitor who specialises in the practice of criminal law. He has been a principal of various legal practices since 1984, and is currently the principal of Defteros Lawyers. Google (the defendant in the proceedings below) is the operator of an internet search engine.
On 17 June 2004, Mr Defteros and a Mr Condello were charged with conspiracy to murder and incitement to murder Carl Williams, his father George Williams, and Carl Williams’ bodyguard. Mr Defteros was arrested at his office and interviewed by police, before appearing at the Magistrates’ Court at Melbourne where he was granted bail. At all times, Mr Defteros strenuously denied the charges.
On 18 June 2004, The Age published an article by John Silvester entitled ‘Underworld loses valued friend at court’ (‘the Underworld article’).
On 20 June 2004, Mr Defteros surrendered his practising certificate. On 22 August 2005, the Director of Public Prosecutions withdrew the charges against Mr Defteros.
In his evidence given at trial, Mr Defteros agreed that, from at least some date in 2007, he knew that the Underworld article was available online.
On 31 August 2007, solicitors acting on behalf of Mr Defteros wrote to The Age, complaining that the Underworld article was still being published on The Age website, and conveyed a number of untrue and defamatory imputations. The Age’s response disputed that the article carried the inferences contended, and indicated that they had instructions to accept service. No proceeding was issued by Mr Defteros.
In September 2007, Mr Defteros regained his practising certificate and specialist accreditation.
In June 2010, Mr Defteros commenced a proceeding in the Supreme Court against John Silvester and Andrew Rule, the authors of a book entitled ‘Leadbelly: Inside Australia’s Underworld Wars’, and the commercial publishers of the book (‘the 2010 proceeding’). Mr Defteros claimed to have been defamed by a chapter of the book, ‘Snakes and Ladders’, which her Honour (the trial judge in the present proceedings) considered appeared to have been based on the Underworld article.[4]
[4]Reasons [276].
In September 2010, the claim settled at mediation and the parties entered into a Deed of Release. A term of the settlement included an agreement that the defendants in the 2010 proceeding (‘the 2010 defendants’) would make revisions to the chapter to be included in the next reprint of the book. Mr Defteros released the 2010 defendants from all liability in relation to various matters including ‘any article published in The Age, The Age Online and/or any Fairfax Media or Fairfax Digital publication’ concerning Mr Defteros. Although the revised chapter, ultimately published, was very similar to the Underworld article, the revisions had the effect that the revised chapter did not convey the imputation that Mr Defteros had crossed the line from professional lawyer for, to confidant and friend of, criminal elements.
On 4 February 2016, Kevin Dorey, a solicitor employed by Defteros Lawyers, completed a removal request form (‘the Removal Request’) on the website of Google. He provided the full URL[5] to the Underworld article. In answer to the request to explain in detail why he believed the content on the URL was unlawful, Mr Dorey advised:
In 2007 the subject of this article, Mr George Defteros, sued the publisher in defamation in the Victorian (Australia) Law Courts. The article was found to be defamatory and the publisher settled the matter, paying a confidential settlement sum. It was a term of the settlement that the article be removed from the internet.
[5]Uniform Resource Locator, otherwise known as a web address: Reasons [22].
Further, Mr Dorey advised that the entire article was found to be defamatory. Some of this information was not accurate. In particular, Mr Defteros had never sued the publisher of The Age in defamation in respect of the Underworld article, and The Age had not agreed to remove the article from its website.
Ms Rachel Ahn, an employee of Google who was, in 2016, a member of Google’s legal removals team with particular responsibility for Australia, received, considered and responded to the Removal Request by requesting a copy of the court order.
Mr Dorey responded to the effect that the matter was settled in a mediation before it proceeded to trial, that the terms of the settlement were confidential, but the publisher had conceded that the article was defamatory and had agreed to remove the article from its website and accordingly from the internet.
Ms Ahn responded that Google had decided not to remove this content from its Web Search service, stating that even if Google eliminated the page from its search results it would still be available on the internet. Ms Ahn went on to provide the contact information for The Age, who was the webmaster for the URL on which the Underworld article was published, and encouraged Mr Dorey to resolve any disputes directly with the owner of the news source in question. This response was in accordance with Google’s ‘Reputable Source Defamation Push Back Policy’. Ms Ahn was familiar with The Age and considered it to be a reputable news source. The Age was also on a list of reputable news sources maintained by Google.
The judge found that the rationale underlying the Reputable Source Defamation Push Back Policy is that Google does not control the Web or the content on it, and is poorly placed to assess whether particular content is true or otherwise defensible. All Google can do is remove a webpage from its search results; it cannot remove content from the internet. A webpage that is removed by Google remains available on the internet. In this case, the Underworld article could still have been viewed on The Age website.[6]
[6]Reasons [214].
The judge accepted evidence that Google responds to billions of search queries each day, from every country in the world, and provides a valuable means of navigating the trillions of webpages that make up the Web.[7] Her Honour took the view that, in accordance with its policy, it was reasonable for Google to rely on sources it knows to be reputable to determine what content should be published on their websites, and what should be removed.[8]
[7]Ibid [215].
[8]Ibid.
Mr Dorey’s correspondence indicated that Mr Defteros already had an agreement with The Age to remove the Underworld article from its website. The judge found that in light of that information, it was entirely reasonable for Ms Ahn to refer Mr Defteros to The Age to implement this agreement. Further, her Honour considered that the fact that Google took no steps to verify the information in the publication was not unreasonable given the business environment in which Google operates.[9]
[9]Ibid [215]-[217].
The evidence at trial, which the judge accepted, was that when a user clicks on a hyperlink on one webpage, the user moves to another webpage, which is hosted and served by another website (not Google) and the browser on the user’s computer displays text and images from the other webpage — in this case a click on the hyperlink in the search result displayed the Underworld article (‘the Underworld article Search Result’), which was an article hosted and served from the website of The Age.[10]
[10]Ibid [12], [23].
On 1 August 2016, Defteros Lawyers wrote again to The Age concerning the Underworld article, seeking removal of the article from its website. This demand was not immediately complied with by The Age.
On the same day, Defteros Lawyers sent a concerns notice to Google and Google Australia Pty Ltd concerning the Underworld article, and, for the first time, identified two imputations said to be conveyed by the Underworld article: namely, that Mr Defteros ‘crossed the line from professional lawyer for, to confidant and friend of, criminal elements’; and that he ‘acted to pervert the course of justice [in respect of a particular matter] … by the creation of false witness statements’. These were respectively imputation 1 and imputation 2 subsequently sued upon by Mr Defteros in the 2016 proceeding. Mr Defteros sought the immediate removal of the Underworld article from the Google search results, payment of legal costs in the sum of $4,750.00 and payment of damages in the sum of $200,000.00 (noting that should the matter proceed, he would be seeking a substantially greater sum).
On 24 December 2016, The Age removed the Underworld article from the URL to which the Underworld article Search Result linked.
During 2017, Mr Defteros learned of various matters on the internet which he considered defamed him, including (relevantly to the current applications in this Court):
(a) the Third Matter (which, in short compass, consisted of two photographs of Mr Defteros and the text: ‘George Defteros. Carlton Crew Lawyer. Recently got his license back. And got thru the ordeal alive! Fuckin lawyers!’); and
(b) the Fourth Matter (which was the Wikipedia article).
These matters were located by Mr Defteros by one or more Google searches conducted in 2017, as follows:
(a) the Third Matter was displayed on the website in response to an image search of the terms ‘george defteros lawyer’ or ‘carlton crew’;
(b) the Fourth Matter was a webpage displaying the Wikipedia article reached by clicking the search result displayed on the website in response to a web search of the terms ‘melbourne convicted underworld’, ‘melbourne underworld figures’ or ‘melbourne convicted mafia’.
On 12 September 2017, Mr Dorey, sent a concerns notice (‘the Concerns Notice’) in respect of the Third Matter and the Fourth Matter to Google by email to [email protected] and also by registered mail to Google’s head office in California. While the email was not received, Google received the physical letter and its enclosures on 20 September 2017.
The alleged publications in more detail
In the proceedings below, there were five publications alleged by Mr Defteros to be defamatory of him. In light of the fact that Mr Defteros makes no complaint about the judge’s rejection of his claims in respect of two of them (the First Matter and the Second Matter), it is only necessary for us to consider the three that remain and which are the subject of the various applications in this Court (namely, the Web Matter, the Third Matter and the Fourth Matter).
The Web Matter
The Web Matter consisted of a print reproduction of two webpages, copies of which were Annexure A to the statement of claim in the 2016 proceeding. The first webpage was a set of search results that was displayed on the website in response to the search term ‘george defteros’. It included the following search result:
Underworld loses valued friend at court - SpecialsGanglandKillings ...
> 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.
A click on the hyperlink in the search result displayed the Underworld article. The Underworld article was the second of the two webpages. As we have already said, it was an article from the website by John Silvester, entitled ‘Underworld loses valued friend at court’. It included a photograph of Mr Defteros, captioned ‘George Defteros leaves court yesterday’.
In order to understand the issues argued by the parties at first instance, and in this Court, it is necessary to set out the relevant text of the Underworld article. The article relevantly provided:
Underworld loses valued friend at court
June 18, 2004
Melbourne’s villains trust lawyer George Defteros. Now he has his own troubles, reports John Silvester.
Pub bouncer-turned-criminal lawyer George Defteros always prided himself on being able to avoid a king hit. But the solicitor with a survivor’s instinct was visibly shaken when arrested near his city office yesterday in connection with Melbourne’s gangland war.
For more than 10 years Defteros has been the lawyer of choice for many colourful identities, although his client list has been shortened by the trend of gangsters killing each other.
Defteros was once involved in a fight with his office manager, George Marcus, outside the old City Court building in Russell Street. Marcus was shot dead in Box Hill in an unrelated incident in April 1997.
He helped finance his Monash University law studies by working part-time as a bouncer at the Croxton Park Hotel. There he learned that the gift of the gab, backed by the subtle threat of violence, helps win most arguments.
He recently recalled that more than once in his early days of practising criminal law, an offender would pull him up and ask if he was the bouncer who once gave threw him out of the “Croc”. He would always plead not guilty – a course he recommends for most of his clients.
Now some of those clients will have to find a new mouthpiece – Defteros will be disqualified from appearing in matters directly relating to the underworld murders because of an obvious conflict of interest.
This will sadden his longtime confidant, Mick Gatto, who is in jail charged with the murder of Andrew Veniamin – a suspected underworld hitman shot dead in a Carlton restaurant on March 23.
Defteros was served with the police brief of evidence last week and was busy building a case for his client. Gatto was planning to apply for bail, but that may be delayed by his lawyer’s own pressing matters.
Police say two warring sides are central to many of Melbourne’s gangland murders. The battle is said to be between an established criminal network, the Carlton Crew, and the so-called up-and-comers.
For the Carlton Crew, George Defteros has been the lawyer of choice. He represented Alphonse Gangitano, who was murdered in his Templestowe home in January 1998; Mick Gatto; Perth criminal identity, John Kizon; kickboxing referee Dave Hedgcock; and fugitive Mexican banker Carlos Cabal Peniche, who was wanted over a misunderstanding involving $1.12 billion.
...
He also represented lawyer-turned-alleged crime figure Mario Condello. Last week police arrested four men over an alleged plot to kill Condello. One of those was Carl Williams, a key figure in the up-and-comers group and central to a number of the Purana taskforce’s murder investigations.
Yesterday police charged Condello and Defteros with conspiracy to murder Williams, his father George and the unidentified minder for the father-son team.
In the life of George Defteros, the line between client, associate and friend has become blurred over the years.
He considered Graham “the Munster” Kinniburgh a friend and would sometimes dine with the suspected organised crime figure. Kinniburgh was murdered on December 13 last year.
He also enjoyed the company of Gangitano, so much so that he agreed to provide him with something most lawyers hate – a fee discount, from $100,000 to $70,000 as part of an informal customer loyalty program. He described Gangitano as a respected businessman, devoted family man and loyal friend. Police found the description overly generous.
Their relationship was long and mutually beneficial. Gangitano was charged with the 1995 murder of standover man Greg Workman, shot outside an underworld party in 1995.
Gangitano was in serious trouble because the police had two female witnesses. But the women became disenchanted with the police protection program and rang Gangitano’s then right-hand man, Jason Moran.
According to a confidential police report: “Both witnesses were then debriefed by Defteros and a staged audio tape made of both women recanting their statements”.
The witnesses were then sent overseas (Gangitano paid) and the murder case collapsed.
Police investigated whether they could charge Defteros with conspiracy to pervert the course of justice but were told they didn’t have a case. To make matters worse, Defteros sent police a legal bill for $69,975.35 – Gangitano’s defence fee.
In recent months, as his clients have taken a higher profile, so has he. Recently Defteros has found himself the victim of regular threats. He told the Herald Sun: “I think people should calm down and people should appreciate that we, as lawyers, act in the criminal law area for the best interests of the client ... I am concerned, however, to portray myself first and foremost as a criminal lawyer, and nothing else.”
Police have been concerned for some time that a few lawyers have, in their view, crossed the line and become players in the underworld rather than remaining neutral advocates.
High-profile lawyer Andrew Fraser was seen as one who ran with his clients. He is now serving a minimum of five years for cocaine trafficking.
Another lawyer may soon be asked questions about using court documents to identify an informer in major drug cases and whether that information was passed on to clients.
But legal and ethical dilemmas are no longer the concern of Mario Condello. He was once a practising solicitor but lost his ticket when convicted of a series of offences, including arson and a $1.4 million art fraud.
Last week Mario Condello spoke to The Bulletin magazine. He was photographed in the laneway near his office and about 50 metres from Defteros’s city office.
Condello no longer speaks like a lawyer, preferring the language of the colourful Carlton identity he has become. Once criminals liked to conduct business in the shadows. Today’s underworld figures agree to photo shoots and compete to produce media one-liners. The only time it seems they respond with “no comment” is when police are asking the questions.
In his interview, Condello showed himself to be somewhat of a criminal snob, claiming moral superiority over the up-and-comers. “We really didn’t have a problem with them because we are not in the line of business they are in. We don’t have anything to do with their line of business and, quite frankly, we despise anyone who has anything to do with that line of business.”
He was referring to allegations that the up-and-comers were involved in amphetamine trafficking, although he apparently did not mention his own conviction over a cannabis plantation.
“No one wants any further destruction of life. No one wants any further traumas, stress or anything of the like least of all taking a life. It’s absolutely absurd,” he said.
Condello said he had been involved in peace meetings with Carl and George Williams. On Wednesday last week police arrested two men outside the Brighton cemetery near Condello’s home. Police alleged the pair intended to kill Condello as he walked his dogs.
Condello talked tough to The Bulletin. “Once they reached the other side of the road where my place was, they would not have been able to walk back to the car, I can assure you they would not have been able to return. Now you make your own assessment of what I’m saying and thank God it turned out the way it did. Thank God for them and thank God for me.”
But the truth was that Condello had moved from the house months earlier. It was the police Special Operations Group (known as the Sons of God) who made the arrests.
Condello said the peace talks with the Williamses had occurred before police foiled the alleged plot against his life. But despite the alleged conspiracy to kill him, he said he was prepared to turn the other cheek. “I didn’t like what happened. I hope it just doesn’t continue to happen to others or to myself for that matter because … I am prepared to forgive once and that’s as far as it goes. No more,” he said.
Detectives are not so sure.
Police believe that another man, Lewis Caine, first took the contract to kill Condello, but the Carlton Crew learned of the plot and Caine was murdered first. His body was found in Brunswick on May 8. (In a touching side story, Caine’s lawyer girlfriend worked for Defteros. She successfully asked for sperm to be taken from Caine’s corpse so she could have his baby.)
Condello had something to say to his would-be hunters. “My message is stay away from me. I’m bad luck for you people. Stay away, don’t come near me, please.” But there was another group hunting Condello – the Purana investigators, who came knocking yesterday.
The Third Matter
The Third Matter (a copy of which was Annexure C to the statement of claim in the 2017 proceeding) was displayed on the website in response to a search of the terms ‘george defteros lawyer’, or ‘carlton crew’. As we have already said, it consisted of two photographs of Mr Defteros and some text. In the first photograph Mr Defteros is wearing a suit and tie with a briefcase under his arm, and appears to be leaving court. In the second photograph he is seated behind a desk, wearing a jacket and open necked shirt, leaning back in his chair and smiling. As we have already noted, the Third Matter also included the following text:
George Defteros. Carlton Crew lawyer. Recently got his license back. And got thru the ordeal alive! Fuckin lawyers!
The Fourth Matter
The Fourth Matter consisted of a search result that was displayed on the website in response to a search of the terms ‘melbourne convicted underworld’, ‘melbourne underworld figures’, or ‘melbourne convicted mafia’, together with the webpage reached by clicking on the search result. The pleaded search result read:
Melbourne gangland killings – Wikipedia
▼
The Melbourne gangland killings were the murders in Melbourne, Victoria, Australia of 36 criminal figures or partners between 16 January 1998 and 13 August …
Timeline of deaths - 2000-2002 - 2003-2009
As the judge observed,[11] the print reproduction of the search result that was Annexure D to the statement of claim in the 2017 proceeding contained a different snippet below the hyperlink to the Wikipedia article (the Fourth Matter), as follows:
Jump to arrests and sentencing – In May 2005 Carl Williams was additionally charged with the … other underworld figures were arrested in Melbourne.
Melbourne gangland killings – Carl Williams – Mario Condello
[11]Ibid [16].
The webpage was the Wikipedia article. It was headed ‘Melbourne gangland killings’. The introduction of the article was as follows:[12]
[12]Endnotes omitted. As the judge observed, at Reasons n 4, the underlined words were hyperlinks to another Wikipedia entry.
The Melbourne gangland killings were the murders in Melbourne, Victoria, Australia of 36 criminal figures or partners between 16 January 1998 and 13 August 2010. The murders were in a series of retributional murders involving various underworld groups. The deaths caused a sustained power vacuum within Melbourne’s criminal community, as various factions fought for control and influence. The majority of the murders are still unsolved, although police from the Purana Taskforce believe that Carl Williams was responsible for ten of them. The period culminated in the arrest of Carl Williams, who pleaded guilty on 28 February 2007 to three of the murders.
Since the confession of Williams, the ultimate source of the violence has become public knowledge. On his 29th birthday while meeting with Jason Moran and his half brother Mark Moran on 13 October 1999 at a suburban park in Gladstone Park, Jason Moran shot Carl Williams in the stomach over a dispute about money earned in the amphetamine trade. Through the period after his run-in with the Moran family, Williams commenced a war with the aim of killing all of the Moran clan.
The murder of former lawyer Mario Condello on 6 February 2006, caused speculation of a possible resurgence in the killings, although this was denied by police.
On 19 April 2010, Carl Williams died while incarcerated at Barwon Prison after being attacked by an inmate. Williams would have been 71 before becoming eligible for parole.
After the table of contents, the first section of the article was headed ‘Background’. It read:
The majority of underworld crime figures and major incidents can be traced back to the Painters and Dockers Union that existed on Melbourne’s waterfront after the Second World War. The Union had a Mafia-like structure, and most criminal activity was centred around control of the Union, and the cut associated with the drugs (primarily heroin and cocaine) that passed through the port. The Melbourne Markets were seen as a natural distribution point for these illegal substances (they were just across the road from the docks area).
By 1990 the local manufacture of amphetamines had increased to the point where the Police described Melbourne as the “amphetamine capital of Australia”. As well as drug dealing, criminals received income through protection rackets in King Street nightclubs, as well as in prostitution, illegal gambling, and armed robbery.
Groups and factions
The following groups of people were connected to the murders. A number of those named below were members of more than one group at the same time.
The Honoured Society
A Calabrian ‘Ndrangheta group that has long been linked with control of Melbourne’s fruit and vegetable markets. Frank Benvenuto, Frank Tizzone, Robert Trimbole and Domenico Italiano are reported to have been associated with this group.
The Painters and Dockers / Moran family
A loose association of Irish waterfront workers and ex-members of the Painters and Dockers Union. Brian, Les, and Ray Kane, Graham Kinniburgh, Victor Pierce, Lewis, Mark, and Jason Moran have all been associated with ‘the Dockers’. The Moran family operated jointly with the mostly Italian Carlton Crew.
The Carlton Crew
An independent cosa nostra group created by Alphonse Gangitano. Domenic “Mick” Gatto and his lawyer George Defteros, Matt Tomas, Mario Condello, and brothers Vincenzo and Gerardo Manella are also associated with this group.
Radev Gang
Led by Nikolai “The Russian” Radev, a convicted drug dealer and career criminal who was shot in Queen St, Coburg in 2003. No killer has been formally identified, although several possibles have been named (see Nik Radev). Mark Mallia, Housam Zayat, Istvan Gulyas and Willie Thompson were known associates.
The Sunshine Crew
Led by Paul “PK” Kallipolitis. Dino Dibra, Andrew ‘Benji’ Veniamin, Rocco Arico, Mark Mallia, Bluey Watkins, Johnny Auciello, Mark Morrison, Michael Dewhirst and Terrence Chimmiri were also members. All members of the group had been friends from their childhood. Benji Veniamin took over the group when Paul PK Kallipolitis was murdered.
The Williams Family
Led by Carl Williams, his father George Williams. Antonios Mokbel, Andrew Veniamin, Dino Dibra, Alfonso Traglia, Damien Cossu, Victor Brincat, Terrence Chimmiri, Hizir Ferman, Chris Orfandis and Robert Musso were known associates.
An endnote [8] appeared next to the name George Defteros under the heading ‘The Carlton Crew’. The endnote referenced, by means of a hyperlink, an archived copy of the Underworld article as follows:
Silvester, John (18 June 2004), “Underworld loses valued friend at court” ( The Age. Archived from the original
( 25 June 2009. Retrieved 19 April 2010.
The article continued on for several more pages. As the judge observed, there were two other references to Mr Defteros. The first was in the detailed timeline of deaths, for the year 2004:
Purana Taskforce detectives arrested Carl Williams for conspiracy to murder on 9 June. His associates Sean Sonnet and Gregg Hildebrandt were arrested only metres from the home of Mario Condello. Victoria Police said the raids had “absolutely” saved Mario Condello from becoming the 28th gangland victim. Eight days later Mario Condello and Mick Gatto’s solicitor, George Defteros, were arrested over a simultaneous plan to murder George Williams and Carl Williams.
And the second, and final, reference to Mr Defteros was under the heading ‘Arrests and sentencing’. The third paragraph of that section read:
Conspiracy to murder charges against George Defteros and Mario Condello were dropped nolle prosequi by the DPP in June 2005.
The Google search engine
In order to understand the parties’ arguments concerning publication, both at first instance and in this Court, it is necessary to understand the operation of the Google search engine. This was the subject of evidence at trial. Drawing on the evidence given at trial, the judge described the way in which the Google search engine operated, in terms which are not disputed by the parties, as follows:
The World Wide Web is a vast system of linked documents accessed by the internet. It comprises trillions of pages generated by millions of people and organisations worldwide, and is constantly changing and expanding.
Each webpage has a unique Uniform Resource Locator or URL, which acts as an address for that webpage. The code commonly used for creating webpages is called HyperText Markup Language or HTML. The HTML code of a webpage is read by a software program called a browser, which displays text and images to a user on the user’s device.
A webpage typically contains hyperlinks to other webpages. A hyperlink is some HTML code that contains a URL for another webpage. When a user clicks on a hyperlink on one webpage, the browser on the user’s computer displays text and images from the other webpage. It is the myriad of hyperlinks between webpages that makes the Web what it is today.
The Web is something like a constantly growing, rapidly changing, vast digital library, and navigating it can be a challenge. It is easy enough to find a particular website if one knows the URL for the website. A user can type that URL into the browser’s address bar, and can then follow hyperlinks within the site or use the site’s search function. Similarly, a user who knows the exact URL for a specific webpage can type that in to the browser’s address bar, and be taken directly to the webpage. However, users who do not know the URL for the webpage containing the information they seek need other tools to find their way around.
One popular tool for locating information on the Web is a search engine, which is an automated information retrieval system designed to allow a user to navigate the extensive information on the Web by the use of user-designed queries. The Google search engine is one of a number of search engines that are available; two other well-known search engines are Yahoo! and Bing. A user of the Google search engine can use it to search the entire Web, using Google Web Search. Google makes other more specific search functions available, for searching images, maps, videos, news, flights, and books.
Search engines use computer algorithms to make predictions about what webpages among the trillions of pages constituting the Web are most likely to be of interest to a user, by responding to the user’s search query. Typically, a search engine returns a list of results in response to a search query, in the form of hyperlinks to webpages on the Web.
The Google search engine does this by first identifying what information is available on the Web, using a Web crawler program. This fully automated program uses a large number of computers to constantly visit and process webpages on the Web. The crawler program determines which websites to crawl and how often, as well as what information is collected from them. Webpages that it ranks as important are crawled for new data more frequently than less important pages. Every time a webpage is re-crawled and new data is detected, the stored data relating to that webpage is updated.
Next, the Google search engine uses an indexing program to organise the data obtained by the Web crawler into a form that is more easily searched by computer algorithms. The indexer program builds a list of every webpage that contains each word found during the crawling stage. The indexer program also notes other aspects of a webpage, such as the date it was published, whether the page comprises text, images or video, and whether the webpage appears to be a news article. The resulting index contains each word and a list of the unique IDs that relate to the webpages that contain that word. The index is constantly refreshed as the Web crawler detects new data on the Web.
Then, when a user enters a search query in Google Web Search, the words from that query are evaluated by a series of algorithms, against the information in the index, as it is at that precise point in time. The search result that Google presents to the user is a list of links to webpages, ranked according to relevance, as estimated by the ranking algorithm. The ranking program uses various ‘signals’ or clues to identify what results the user is most likely looking for. Some of the signals used by the Google search engine are:
(a)the number of times one or more of the user’s search terms appear on the webpage, as indexed by the indexer program;
(b)how often other web pages link to that web page, and the importance of the linking webpages (this signal is known as PageRank);
(c)how recently the content of that webpage was published or updated (freshness);
(d)evaluating the order in which the search terms appear on a webpage;
(e)the location of the user, as determined from the user’s Internet Protocol or IP address; and
(f) the user’s previous search history.
The format of the search results that Google presents to a user may vary depending on the user’s device and browser. Typically, for each webpage listed in the search result, the user is shown the title of the webpage, with the search terms in bold. The title is also a hyperlink, which the user can click to reach the webpage. The result also contains a ‘snippet’ of the content of the webpage, and a shortened form of its URL. There may be many pages of search results, with the webpages that the algorithm determines to be most relevant appearing on the first page of results.
A Google image search results in a display of a collection of image ‘thumbnails’, each of which contains a hyperlink to an interstitial page that provides more information about the image. A click on the interstitial page then takes the user to the webpage where the image was found by the Google search engine.
The Google search engine conducts a Web search almost instantaneously – the average search response time is about half a second. Every month, over 100 billion searches are made by users of the Google search engine. Of these, 15% or more than 500 million searches each day are searches that have not been made using the Google search engine before.
Although humans who work for Google design the search engine and its component programs, a Google search is a fully automated process that operates without human intervention. The Google search engine is not capable of evaluating the meanings conveyed by the words and images on a webpage, including whether they are true, false, or defamatory.
However, Google can, by human intervention, alter the search results that are returned to a user. It does this in only limited circumstances, one of which is known as ‘legal removal’. … Google can, if it chooses, remove a webpage, identified by its URL, from the search results that are returned by the Google search engine. This does not remove the webpage from the Web, which can still be accessed directly, or found using other search engines. Google does not control the Web, or the content on it.[13]
PUBLICATION
[13]Reasons [21]–[34].
In each proceeding, Google denied that it was a publisher of the material about which Mr Defteros made complaint in the 2016 and 2017 proceedings. Google asserted, to the contrary, that it was ‘merely an innocent disseminator at common law’.
Publication — reasons and conclusions of trial judge
The judge observed that while the law as to publication is ‘tolerably clear’, its application to particular facts can be difficult, ‘especially in the relatively novel context of internet search engine results’.[14] The judge then referred to a number of relevant authorities, including the High Court’s decision in Webb v Bloch,[15] the Canadian Supreme Court decision of Crookes v Newton,[16] Trkulja v Google Inc [No 5],[17] the judgment of Blue J in Duffy v Google Inc,[18] the judgments on appeal from Blue J in Google Inc v Duffy,[19] the judgment of McDonald J in Trkulja v Google Inc,[20] the Court of Appeal’s judgment on appeal from McDonald J in Google LLC v Trkulja,[21] and the High Court’s judgment on appeal from the Court of Appeal in Trkulja v Google LLC.[22] The judge identified the following general principles:
To publish a libel is ‘to convey by some means to the mind of another the defamatory sense embodied in the vehicle’. Publication is a bilateral act that occurs when a publisher makes defamatory matter available and its meaning is comprehended by another person.
A defendant publishes defamatory matter if the defendant is instrumental to the publication, by intentionally lending assistance to its existence for the purpose of being published, ‘without reference to the precise degree’ of assistance. Any person who is ‘in any degree accessory’ to the publication is a principal in the act of publication. This includes any person republishing matter originally published by another person.
The tort of defamation is a tort of strict liability, in that it is not necessary that the defendant intend to injure the reputation of the plaintiff. A defendant will not be liable, however, unless it intended to communicate the relevant content.[23]
[14]Ibid [35].
[15](1928) 41 CLR 331 (‘Webb v Bloch’).
[16][2011] 3 SCR 269 (‘Crookes v Newton’).
[17][2012] VSC 533 (‘Trkulja v Google [No 5]’).
[18](2015) 125 SASR 437 (‘Duffy’).
[19](2017) 129 SASR 304; [2017] (‘Duffy (FC)’).
[20][2015] VSC 635 (‘Trkulja’).
[21](2016) 342 ALR 504 (‘Trkulja (CA)’).
[22](2018) 263 CLR 149; [2018] (‘Trkulja (HC)’).
[23]Reasons [36]–[38] (citations omitted).
The judge then rejected Google’s submission that, because its search engine is fully automated and it does not intend the communication of any particular words or images (including any third party webpage to which a user might navigate), Google could not be liable as a secondary publisher.[24] In rejecting this submission, the judge said that it was at odds with the reasoning in Trkulja v Google [No 5], dicta in Trkulja (CA), and the reasoning in Duffy (FC). As the judge put it:
The Google search engine, described above, is not a passive tool. It is designed by humans who work for Google to operate in the way that it does, and in such a way that identified objectionable content can be removed, by human intervention, from the search results that Google displays to a user.[25]
[24]Ibid [40].
[25]Ibid.
The judge concluded that Google was a publisher of the search results that its search engine returned to a user who enters a search query, after Google has ‘notice of particular search results’.[26]
[26]Ibid [41].
Her Honour observed that a Google search may return ‘pages and pages of search results, many of which are never viewed by the user’.[27] The judge then said:
Only the first page of results is presented to the user, and often only the top of that page is immediately visible to the user. The user may or may not scroll down to the bottom of the page, click on ‘Images’ or ‘News’ or other tabs, or click through to the second and subsequent pages. A search result is only published by Google when it is viewed by a user on the user’s device. In this case, all of the search results in question appeared near the top of the first page of results returned by the Google search engine.[28]
[27]Ibid [43].
[28]Ibid.
Next, the judge identified as the ‘more difficult question’ whether Google was also a publisher of a third party webpage that is reached by a user who clicks on a hyperlink within a search result.[29] The judge then dealt with a submission by Google that Duffy (FC) was authority for the proposition that Google does not publish a defamatory article on a third party webpage, reached by clicking on a hyperlink in a Google search result, unless the search result itself incorporates the defamatory material from that webpage.[30] The judge rejected Google’s submission that it did not publish a defamatory article on a third party webpage, reached by clicking on a hyperlink in a Google search result, where the search result and the hyperlink within it were ‘content neutral’. The judge said that she did not accept this submission for two reasons:
First, it would require me to limit the application of established principle as to publication based on policy considerations that are not matters for this Court. Second, the argument appears to me to conflate the two distinct issues of publication and meaning.
As to the first, the approach of the Full Court in Duffy (FC) was influenced by the conclusion of Abella J in Crookes v Newton that ‘a hyperlink, by itself, should never be seen as “publication” of the content to which it refers’.[31] That conclusion was, in turn, influenced by her Honour’s assessment that the contrary conclusion could have a ‘devastating’ chilling effect on the functioning of the internet.[32] That assessment might be thought to underestimate the vitality and resilience of the internet. More to the point, 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.
As the law stands in Australia, the common law casts the publication net wide. The liability of publishers is then limited by a range of common law and statutory defences. In particular, the common law ‘defence’ of innocent dissemination operates to limit the potential liability of search engine providers. Later in this judgment, I also consider the application of the statutory defence of qualified privilege to Google search results.
My second reason for rejecting Google’s submission is that, as a matter of logic, whether a person publishes a matter cannot depend on whether the matter carries a defamatory meaning. It is one question whether a defendant publishes a matter – whether it be a book, a newspaper article, a cartoon, or a webpage – and another question whether the matter carries defamatory imputations. Both are elements of the tort of defamation. In this case, both are in issue.
Applying the principles enunciated by the High Court in Webb v Bloch,[33] I conclude that Google publishes a webpage that is reached by clicking on a hyperlink within a search result, because its provision of a hyperlinked search result is instrumental to the communication of the content of the webpage to the user. The Google search engine lends assistance to the publication of the content of a webpage on the user’s device, by enabling the user to enter a search query and, a few clicks later, to view content that is relevant to the user’s search. This is exactly what the Google search engine is designed to do, consistent with Google’s mission ‘to organise the world’s information and make it universally accessible and useful’.[34]
The inclusion of a hyperlink within a search result naturally invites the user to click on the link in order to reach the webpage referenced by the search result. The analogy with a reference in a library catalogue, while useful, does not quite capture what occurs when a search engine provides a user with a search result that includes a hyperlink to a webpage. A hyperlink is more than simply a reference to where information can be found on the Web. A closer analogy is a librarian who, instantaneously, fetches a book from the shelf and delivers it to the user, bookmarked at the relevant page. All that is left for the user to do is to open the book and read it. In my view, the provision of a hyperlink within a search result facilitates the communication of the contents of the linked webpage to such a substantial degree that it amounts to publication of the webpage.[35] [36]
[29]Ibid [44].
[30]Ibid [49]. See also [45]–[48].
[31]Crookes v Newton, [27] (Abella J). See generally, Duffy (FC), [160]–[170] (Kourakis CJ, Peek and Hinton JJ agreeing).
[32]Crookes v Newton, [36] (Abella J).
[33](1928) 41 CLR 331.
[34]Edwards, XN, T 540:25–541:3. See also Kondepudy, XXN, T 434:18–21.
[35]Duffy (FC), [173]–[174] (Kourakis CJ, Peek and Hinton JJ agreeing).
[36]Reasons [50]–[55] (footnotes in original).
Ultimately on the issue of publication, the judge found that:
·because Mr Defteros claimed that Google was a publisher of the matters complained of only a reasonable time after it was made aware that those matters were being returned in search results produced by the Google search engine, it was not necessary to consider whether Google was an innocent disseminator of the Web Matter before 11 February 2016 (a week after Google received the Removal Request);[37]
·Google published the Web Matter from 11 February 2016 to 24 December 2016, to seven identified people and a number of other unidentified users of the Google search engine, but only up to 150 people;[38]
·Google published the Third Matter in the period between 27 September 2017 (a week after it received the Concerns Notice) and 7 April 2018 to about 1200 unidentified users of its search engine;[39]
·there was no need to consider whether Google was an innocent disseminator of the Third Matter because Mr Defteros pursued his claim in relation to the Third Matter on the basis that Google was a publisher only after a reasonable time which followed it having been made aware of the matters being returned in search results by its search engine;[40] and
·Google published the Wikipedia article (Fourth Matter) to no more than 25 people, between 27 September 2017 (again, a week after it received the Concerns Notice) and the end of November 2017,[41] and its defence of innocent dissemination was not made out.[42]
Publication — grounds of appeal and of notice of contention
[37]Ibid [134].
[38]Ibid [106].
[39]Ibid [123].
[40]Ibid [134].
[41]Ibid [133].
[42]Ibid [239]–[247].
In proposed ground 1 of its application for leave to appeal against the orders made in favour of Mr Defteros in the 2016 proceeding, and in grounds 1 and 2 of its notice of contention with respect to the 2017 proceeding, Google makes a number of complaints about the judge’s treatment of the issue of publication. In proposed ground 1 in its application for leave to appeal, in relation to the issue of ‘publication, including innocent dissemination at common law’, Google contends:
(a)[The judge] erred in finding at [54], [55] and [61(a)] that Google publishes a webpage that is reached by clicking on a hyperlink within a search result, because its provision of the hyperlinked search result is instrumental to the communication of the content of the webpage (and facilitates it to such a substantial degree) and that Google had accordingly published the Web Matter.
(b)[The judge] erred in failing to follow (as she did not find that it was plainly wrong) the decision of the Full Court of the Supreme Court of South Australia in Google Inc v Duffy (2017) 129 SASR 304 at 360 [187] (Kourakis CJ, Peek J agreeing at 401 [354], Hinton J agreeing at 456 [562], adding additional observations at 467 [599]) (Duffy) which held that Google was not the publisher of matter to which its search results provided a hyperlink unless the search result incorporated the hyperlinked matter by abstracting sufficient material to inform the searcher of its contents and repeated and drew attention to the defamatory imputation.
(c)Having found at [48] that the Search Result was neutral, at [60] that no complaint was made by the respondent that the Search Result, on its own, defamed him and at [62] that there was nothing in the Search Result that incorporated or drew attention to the defamatory imputations that the respondent alleged were conveyed by the Underworld article, the trial judge should have found, consistently with Duffy, that Google had not published the Underworld article and therefore the Web Matter.
(d)If the trial judge was not bound to follow Duffy then, given her finding at [12] that a click on the hyperlink in the Search Result caused the Underworld article on the website of The Age to be displayed to users of the Google search engine, and in accordance with the principle set out in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 600 [26] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, it was the publisher of The Age website that communicated the Underworld article to the users and Google was not a party to the bilateral act of publication that resulted.
(e)[The judge] erred at [67] and [69] in finding that because the respondent had, by his removal request on 4 February 2016 …, notified Google of his ‘claim’ that the Web Matter was defamatory of him, Google was a reasonable time thereafter liable as a publisher of the Web Matter.
(f)[The judge] should have found, in accordance with authority and in particular the judgment of Lord Denning in Goldsmith v Sperrings [1977] 1 WLR 478 at 487F, that Google was not liable as a publisher in circumstances where it did not know and ought not to have known that the Underworld article conveyed a defamatory imputation of the respondent that could not be justified or excused.
In ground 1 of Google’s notice of contention, concerning the publication of the Third Matter, Google contends:
(1)The judge erred in finding[43] that Google became a publisher of the Third Matter. She should have concluded that, because Google never consented to, or approved of, or adopted, or promoted, or in some way ratified the publication of the Third Matter, it was never a publisher.
(2)The judge erred in finding[44] that the Third Matter had not been reproduced on multiple web pages. There was no evidence to support that finding.
(3)The judge erred in finding[45] that because the Concerns Notice notified Google of Mr Defteros’ claim that the Third Matter was defamatory of him, Google could at a reasonable time thereafter be liable as a publisher of the Third Matter.
(4)The judge committed the error identified in paragraph (f) in Google’s proposed ground 1 of its application for leave to appeal against the orders made in the 2016 proceeding in not making a finding in accordance with the judgment of Lord Denning in Goldsmith v Sperrings.[46]
(5)The judge erred in finding[47] that ‘[in this case], all of the search results in question appeared near the top of the first page of results returned by the Google search engine’. This finding failed to take into consideration material attached to the Concerns Notice showing that the Third Matter was on the second page of a search which had been performed; another document to the same effect; the judge’s own findings;[48] and the evidence of Dr Raghava Kondepudy, an employee of Google with expertise in computer science, software and computer algorithms, about the operation of the Internet, the Web and the Google search engine.
(6)The judge erred in finding[49] that Google published the Third Matter to Jenisa Vick, an employee of Defteros Lawyers. Her Honour should have found that there had been no publication to Ms Vick because her searches[50] were conducted on Mr Defteros’ instructions (including as to the keywords used) and while she was in his presence. Accordingly, any publication was to Mr Defteros himself, not Ms Vick.
(7)The judge erred in finding[51] that Google published the Third Matter ‘to about 1200 unidentified users of its search engine’, because there was no evidence that any unidentified users had viewed the Third Matter.
[43]Reasons [41]-[42] and [59(b)].
[44]Ibid [86].
[45]Ibid [77] and [87].
[46][1977] 1 WLR 478, 487F (‘Goldsmith’).
[47]Reasons [43].
[48]Ibid [29], [30], [42] and [43].
[49]Ibid [121].
[50]Referred to at Reasons [118].
[51]Reasons [123].
Ground 2 of the notice of contention concerns the judge’s conclusions that Google became a publisher of the Fourth Matter a week after receiving the Concerns Notice. Google’s complaints concerning this conclusion mirror the complaints made in paragraphs (a) to (f) in proposed ground of appeal 1 in its application for leave to appeal against the orders made in the 2016 proceeding.
In his application for leave to appeal in relation to the 2017 proceeding, Mr Defteros makes a fairly limited complaint about the judge’s treatment of the issue of publication concerning the Wikipedia article. Mr Defteros’ proposed ground 1 is as follows:
1.[The judge] erred in not being satisfied that [Google] published the Wikipedia article in the form annexed to the statement of claim (Fourth Matter) after November 2017.[52] [The judge] should have found that [Google] published the Wikipedia article in October and November 2017 and between May 2018 and March 2019.
[52]Ibid [133].
The issue of whether Google is a publisher following receipt of a relevant notification is anterior to the question of the extent of any publication it might be held to have made. Accordingly, it is convenient to deal with Google’s proposed ground 1 and notice of contention on the issue of publication before dealing with Mr Defteros’ proposed ground 1 concerning the extent of publication of the Wikipedia article.
Google’s proposed ground 1
In oral argument, Google advanced two principal arguments why the judge was wrong to conclude that it was a publisher of the First Matter (the Underworld article). Its first argument relied heavily upon the decision of the Full Court of South Australia in Duffy (FC), and in particular on the judgment of Kourakis CJ. The second argument concerned what Google described as ‘the remarkably wrong’ Removal Request. While Google’s written case in this Court advanced a third argument that the view of Lord Denning in Goldsmith was to be preferred, senior counsel for Google did not advance any oral argument in support of that proposition — a submission to that effect having been rejected in Duffy (FC).[53] Consistently with Google’s submission that this Court is, and the judge was, bound by Duffy (FC), senior counsel for Google submitted that we were bound to reject Google’s third argument that the position taken by Lord Denning in Goldsmith was to be preferred. Accordingly, we will not refer further to that argument — although we should say that we see no reason to doubt the correctness of Duffy (FC) on this issue.
[53](2017) 129 SASR 304, 335 [98] (Kourakis CJ).
Having regard to the centrality of the reasoning in Duffy (FC) to Google’s arguments, it is necessary to describe that decision in some detail.
Duffy (FC)
The facts of Duffy (FC) are, in many respects, not dissimilar from the facts in the present case. In that case, between December 2007 and January 2009, six articles concerning the respondent (Dr Duffy) were published on a website (the primary website) which the respondent claimed contained imputations that were defamatory of her. In July 2009, she became aware that Google searches of her name resulted in the display of extracts of the defamatory material published on the primary website (referred to as ‘the Ripoff Reports’ or ‘the Ripoff Report webpages’), hyperlinks to that material, and past searches of her that had occurred by virtue of the operation of Google’s ‘autocomplete function’.
In September 2009, Dr Duffy notified Google of the defamatory material and requested that it be removed. After Google refused to accede to that request, she commenced defamation proceedings against it. The trial judge (Blue J) found that Dr Duffy’s notifications to Google provided sufficient information to enable it to prevent its search engine from reproducing, or linking to, the defamatory material. The trial judge awarded Dr Duffy damages in the sum of $115,000.
An issue at trial, and again on appeal, concerned whether the material defamatory of Dr Duffy, which could be accessed by clicking on a hyperlink within a Google search result, was published by Google after it had received notice from Dr Duffy. Kourakis CJ commenced his analysis of this issue as follows:
The first issue to be considered in the complex case of dissemination through the World Wide Web is whether Google’s role as facilitator through its search engine is sufficiently proximate to the display of the search results themselves to constitute participation in the publication of their contents.
In its most elementary form facilitation of an electronic publication may be no more than providing a telecommunications cable. The provision of a cable that operates as an electronic super highway facilitates the ultimate publication of defamatory material in a readable form. However, words sent in cipher are not published. Telecommunication providers take no steps to render the electronic signals they convey readable. Moreover, it is impossible for the provider of the cable to identify or block the electronic signals which carry the defamatory material. The provision of a cable service even after notification is no more participation in the ultimate publication than the conduct of an electricity distributor is participation in the production of drugs in a household to which the electricity is supplied.
The social utility in the distribution of electronic signals is such that the law could not countenance cutting off the cable service altogether as a reasonably practicable measure to avoid its possible use to convey defamatory material. The provision of a telecommunications cable is not sufficiently connected to the publication for the provider to be regarded as even a secondary publisher.[54]
[54]Ibid 343–4 [135]–[137] (citations omitted).
Kourakis CJ then said that internet service providers ‘go one step further than providing cables’.[55] His Honour said, ‘[t]hey provide electronic protocols which allow users to exchange data with the World Wide Web’.[56] His Honour then discussed a number of relevant authorities (including the judgments of Eady J in Bunt v Tilley,[57] Tamiz v Google Inc[58] and Metropolitan International Schools Limited v Designtechnica Corp;[59] the Court of Appeal’s decision in Tamiz v Google Inc,[60] which overturned Eady J’s decision at first instance; and the judgment of Ribeiro PJ[61] in Oriental Press Group Limited v Fevaworks Solutions Limited[62]) before turning to Crookes v Newton.
[55]Ibid 344 [138].
[56]Ibid.
[57][2008] 1 WLR 1243.
[58][2012] EWHC 449.
[59][2011] 1 WLR 1743.
[60][2013] 1 WLR 2151.
[61]With whom Ma CJ, Chan PJ, and Litton and Gleeson NPJJ agreed.
[62](2013) 16 HKCFAR 366.
In Crookes v Newton, the Supreme Court of Canada had to consider a claim against a defendant for posting material on the web which contained a hyperlink to another website containing material defamatory of the plaintiff. Abella J (with whom Binnie, LeBel, Charron, Rothstein and Cromwell JJ agreed) likened a hyperlink to a reference in an article to another publication, saying that ‘[h]yperlinks are, in essence, references. By clicking on the link, readers are directed to other sources’.[63]
[63]Crookes v Newton [2011] 3 SCR 269, 285 [27].
After noting that Abella J’s reasons showed that ‘mere facilitation may not, of itself, constitute publication’,[64] Kourakis CJ then referred[65] to the following passages in Abella J’s judgment in Crookes v Newton:
Where a defendant uses a reference in a manner that in itself conveys defamatory meaning about the plaintiff, the plaintiff’s ability to vindicate his or her reputation depends on having access to a remedy against that defendant. In this way, individuals may attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actually expressed something defamatory. This might be found to occur, for example, where a person places a reference in a text that repeats defamatory content from a secondary source.
…
Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be ‘published’ by the hyperlinker.[66]
[64]Duffy (FC) (2017) 129 SASR 304, 353 [162].
[65]Ibid 354 [164].
[66]Crookes v Newton [2011] 3 SCR 269, 291–2 [40]–[42] (emphasis in Abella J’s judgment) (citations omitted).
After discussing wider approaches adopted by the other members of the Court in Crookes v Newton (McLachlin CJC and Fish J, and Deschamps J), Kourakis CJ expressed his preference for the reasoning of the majority (Abella J) in the following terms:
There is a strong advantage in the formulation of Abella J in Crookes which draws a clear bright line and rules out those who merely reference the existence or location of defamatory material as a publisher. Moreover the formulation of McLachlin CJC and Fish J has the disadvantage of incorporating into the definition of publication the concept of endorsement of the defamatory content which, in the case of republication, goes to the question of whether the republication also carried the defamatory imputation. The approach of Deschamps J has the usual disadvantages of any distinction between misfeasance and nonfeasance.
I pause here to observe that a hyperlink does not have to take the form of a URL which once clicked will take the user to that website. Almost any text or image on a webpage can be hyperlinked. In the instant example when Google search engine returns results the heading of the webpage is hyperlinked. I understand the reasoning of Abella J to distinguish between the text accompanying a hyperlink and the content of the material on the hyperlinked webpage with only the former being the publication of the search engine operator.
Further a bare hyperlink is unlikely to be defamatory on Abella J’s reasoning, whereas reproducing and hyperlinking a portion of defamatory text from the linked page will generally be defamatory and the party providing the link will be liable. As a general rule, that can be accepted. However, in certain circumstances, depending on both the ease with which the hyperlink can be accessed, and the information provided by the hyperlink (whether or not that information is defamatory in itself), hyperlinking can for all practical purposes constitute an incorporation of the defamatory material into the reference. If the defamatory material is incorporated into the hyperlink, the person making that reference is repeating the libel. Moreover, neutrality is not refutation. In those special circumstances the search result and hyperlink may be the electronic equivalent of handing over a text bookmarked to a certain page or line and inviting a person to read it. In that event the person providing the reference may be regarded as a secondary publisher.
I prefer to speak of incorporation, rather than adoption or endorsement, because lending or imparting weight to the truth of a defamatory imputation is not relevant of the law of defamation in any other context. Incorporation focuses the inquiry on whether the defamatory material is, as a factual matter, incorporated into the publication of the reference or hyperlinker. When referring to another source, the greater the information which is provided about the content of the reference material, irrespective of whether the reference repeats a defamation, the more closely connected the act of reference is to the publication of the referenced material. Indexing by reference to the title and author of the material will only rarely convey sufficient information about the contents so as to constitute a publication of the underlying webpage. However the addition of a snippet, or an abstract, of the material may do so. That is because the searcher only has to assess the snippet or abstracts presented to him or her instead of undertaking the laborious task of going to each reference and assessing them one at a time. A reference accompanied by a snippet or abstract of the defamatory material is even more likely to amount to an incorporation of the hyperlinked webpage. That is because the hyperlink, if used, will direct the searcher to that very material. A Google search paragraph is the electronic analogue of the person who places a post-it note on a book which reads ‘go to page 56 to read interesting gossip about X’. This approach also sits more comfortably with the numerous ways in which a hyperlink might be constructed and thereby refer a user to the underlying page.[67]
[67]Duffy (FC) (2017) 129 SASR 304, 355–6 [170]–[173].
After referring to further authority, including Trkulja v Google [No 5], Kourakis CJ concluded that Google published the relevant defamatory material which was accessed by clicking on the relevant hyperlinks in the Google search results. His Honour said:
The issue of republication of the Ripoff Report webpages is finely balanced. In one sense, the search results may be viewed as an invitation but the critical question is whether Google has, through the search facility it offers, republished the defamatory material in the Ripoff Report. Ultimately I have concluded that the paragraphs incorporate the contents of the Ripoff Report. I do so because Google’s facilitation of the reading of the Ripoff Report is both substantial and proximate. Google has republished the Ripoff Reports by abstracting sufficient material to inform the searcher of its contents, by repeating and drawing attention to the defamatory imputation, and by providing instantaneous access to it though the hyperlink. The very purpose of an internet search engine is to encourage browsing and it is designed to achieve that purpose.[68]
[68]Ibid 304, 360 [187].
In separate reasons for judgment, Peek J substantially agreed with Kourakis CJ on the issue of publication. On the question of whether Google published the defamatory material accessed by clicking on the hyperlinks in its search results, Hinton J said:
Turning to the question of whether the appellant published the underlying Rip-off Reports (the hyperlinked material), like the Chief Justice, I agree with the Judge’s conclusions. I also agree with the Chief Justice’s additional reasons. The deep hyperlink taken with the snippet is more than a reference. The snippet entices and the hyperlink bespeaks a willingness on the appellant’s part to transport the enticed searcher immediately to the relevant web page for more information — to publish the web page to those who, having read the snippet, want more information. In my view it is unnecessary to refer to the concepts of adoption or endorsement here. By transporting the enticed searcher to the web page upon the searcher clicking on the hyperlink contained in the search result the appellant publishes to the searcher the web page once it is opened. I agree with the analogy of handing over a bookmarked text, the invitation to provide it having been extended by the snippet and accepted upon clicking on the hyperlink. The position is also analogous to the circumstances in Hird v Wood.[69]
[69]Ibid 467 [599] (citations omitted).
Parties’ submissions
As we have already noted, Google advanced two principal arguments why the judge was wrong to conclude that it was a publisher of the Underworld article. Google’s first argument was premised on the proposition that the ratio of the Full Court’s decision in Duffy (FC) was that Google was a publisher of the hyperlinked material in that case because the search result itself incorporated the content of the hyperlinked matter, by reason of the fact that it abstracted sufficient material to inform the searcher of the contents of the hyperlinked material, repeated and drew attention to the defamatory imputation in the hyperlinked material, and provided instantaneous access to it through the hyperlink.
Google submitted that necessary to the publication finding in Duffy (FC) was the Full Court’s reasoning that the mere inclusion of a hyperlink did not communicate the defamatory imputation conveyed by the hyperlinked material, and was accordingly not sufficient to make Google a publisher of the hyperlinked material. Google contended that the judge erred in distinguishing Duffy (FC) on the basis that that case was not concerned with hyperlinks in neutral search results (snippets). It contended that this was not a proper basis for distinguishing Duffy (FC), and that the judge was in fact bound to follow Duffy (FC) and the essential reasoning that led to its ultimate conclusion.
There are a number of answers, on a number of levels, to this submission.
First and foremost, any such submission is contrary to the correct construction of the onus of proof. The present situation is really quite a stark one. First, the judge has positively found that defamatory publication to a class of a substantial number of persons unknown occurred; such a finding is hardly an unfamiliar one. Second, such finding, in the present case, leads to a further finding that the respective multiple causes of action in relation to each of these unknown persons are each made out unless the defendant proves qualified privilege in respect of each and every of those causes of action.[174]
[174]Ibid 432–3 [444]–[445] (emphasis in original).
Peek J further found that the fact (if it be so), that some of the substantial number of unknown persons were interested in the dispute between the plaintiff and the psychics, did not establish a qualified privilege defence in relation to the publications to each of them.[175] It was also necessary for Google to prove that the defamatory matter was published to those recipients in the course of giving information to the recipients on a subject which is a matter relating to the subject which gave rise to the relevant interest.[176] Peek J further noted that the publications in question occurred well after the time by which it was reasonable for Google to have blocked access.[177] In the circumstances, Peek J concluded that the judge was correct to find that Google had failed to establish that its conduct, in publishing the material, was reasonable.
[175]Ibid 436 [464].
[176]Ibid 437 [468].
[177]Ibid 440 [480].
Hinton J rejected the submission of Google that it had established that the defamatory material had been published to persons who had an interest or apparent interest in receiving information on the subject of that material. His Honour stated:
Under s 28(1)(b) the information provided on the subject must be germane to the interest. It follows that in the circumstances of this case the appellant must establish that the Google search engine users’ interest in information on the respondent included an interest in obtaining information on her involvement with the relevant psychics. That is because it was information of her involvement with the relevant psychics that was conveyed by the paragraphs and underlying web pages and which included the defamatory material. In my view the evidence does not allow one to so conclude.[178]
[178]Ibid 472 [613].
Hinton J acknowledged that it was highly likely that a number of the search engine users, who used the relevant search terms, were in, or considering entering into, a professional or other relationship with the plaintiff. However, he did not accept that such a person necessarily had an interest in all the information that was able to be obtained in the defamatory material.[179] Accordingly, he concluded:
In my view the evidence does not establish the requisite interest possessed by those who used the Google search engine and searched ‘Dr Janice Duffy’ or ‘Janice Duffy’ during the relevant period.
Turning to the interest possessed by those who clicked on the hyperlink and were transported to the underlying web pages, in light of my conclusion that the evidence does not establish the requisite interest possessed by those Google search engine users who used the relevant search terms, curiosity as the then motivating reason for proceeding to the web pages cannot be eliminated. Again Ms Palumbo is an example. As the majority said in Stone v Moore, the interest must be beyond curiosity. As to what other interest may have existed, there is no evidence.
In my view, the Judge was right to reject the statutory defence of qualified privilege on the basis that the appellant had failed to prove the relevant interest for the purposes of s 28(1).[180]
[179]Ibid 473 [616]–[617].
[180]Ibid 474 [618]–[620].
Hinton J further concluded that Google’s conduct after notification could not be characterised as reasonable in view of the period of time that elapsed before it removed the offending material.[181]
[181]Ibid 474 [625].
As mentioned, Kourakis CJ dissented on the issue of statutory qualified privilege. Also, Kourakis CJ rejected the analogy, drawn by the trial judge, between Google’s search engine and mass media. In particular, in the case of Google, the information communicated was tabled and exclusive to a particular request. Accordingly, Kourakis CJ found that the persons who made the subject searches had a greater interest than idle curiosity and had a legitimate interest in the subject matter of the defamatory statements in them.[182] His Honour stated:
Internet search engines provide a tangible, indeed substantial, public benefit by providing references and links to the mass of material and information sought by the public to help them in their daily social, professional and commercial lives. It is a truism that the exchange of information has always been, and remains, the driving force of human progress. It is notorious that the World Wide Web has accumulated an unprecedented amount of information and equally notorious that a powerful electronic searching capacity, which few can provide, is needed to access that information and facilitate its meaningful exchange. Internet search engines like Google facilitate access to that wealth of information which is legitimately sought by searchers for purposes which, by and large, provide a substantial public benefit. For so long as the subject matter of the search results coincides with a subject of legitimate interest to the searcher, there is an occasion which attracts qualified privilege.[183]
[182]Ibid 394 [306]–[307].
[183]Ibid 394 [310].
Kourakis CJ further held that Google’s conduct in publishing the material was generally reasonable. There was a strong public interest in the expeditious provision of search results and the operation of search engines like Google. Those search engines enable persons to access voluminous material on the internet, so as to better inform themselves about the way in which they wish to conduct their own affairs or of matters of controversy.[184]
[184]Ibid 394–5 [311], [314].
Analysis and conclusion
In each of the two applications for leave to appeal that are under consideration, Google in effect relied on two alternative propositions upon which to contend that the judge erred in failing to conclude that all of the persons to whom the Underworld article and the Wikipedia article respectively were published had an interest or apparent interest in the subject of the article for the purposes of s 30(1)(a) of that article.
First, it was submitted that the subject of each article was a matter of considerable public interest published by a reputable news source, so that it should be concluded that all of those persons, to whom Google published the particular article, had the necessary interest or apparent interest in it. Secondly, and alternatively, it was submitted, by reference to the reasoning of Kourakis CJ in Duffy (FC), that although in each case there were a small number of recipients of the article whose identity could not be known, it should be inferred that those recipients had a similar interest in the particular article as that of the recipients of it whose identities had been ascertained.
The first submission is, by its nature, particularly wide. In essence, it is based on the proposition that, in effect, any person to whom the respective article was published would have a relevant interest in it, because of the considerable wide-ranging public interest in the subject matter of the articles, namely, the activities and personalities of those persons involved in the Melbourne Underworld.
It may certainly be accepted that the topic of the activities of the Melbourne underworld was a matter of considerable prominence, particularly in Victoria, in the first decade of this century. However, as our discussion of the authorities relating to s 30 demonstrates, that consideration of itself is insufficient to invest that topic with the character of a relevant ‘interest’ or ‘apparent interest’ under s 30 of the Act. As we have discussed, while it has been accepted that the concept of ‘interest’ under s 30 is wider than that at common law, nevertheless it does not extend to or include matters of idle curiosity and the like. In that respect, it is to be remembered that in Duffy (FC), which is the most recent appellate authority on the issue, each member of the court accepted that the ‘interest’ (or ‘apparent interest’) under s 30 must be a matter of substance apart from its mere quality as news.[185]
[185]Ibid 390–1 [298]–[303], 394 [307] (Kourakis CJ), 420–3 [408]–[415] (Peek J), and 470–1 [604]–[605] (Hinton J).
That principle runs counter to the first submission relied on by Google. Put simply, the fact that each article concerned a matter ‘of considerable public interest’ meant no more than, because of the newsworthiness of the activities of the Underworld in Melbourne during the relevant period, it might be expected that a number of persons might be attracted to the two articles in order to satisfy their curiosity or add to their understanding and knowledge of those activities. Based on the authorities to which we have referred, such a purpose could not amount to a relevant interest or apparent interest under s 30 of the Act.
The second submission relied on by Google is narrower in its ambit. As we have noted, counsel for Google, in oral argument, placed considerable emphasis on the line of reasoning adopted by Kourakis CJ in his dissenting judgment in Duffy (FC). There are, however, a number of difficulties associated with adopting and applying that line of reasoning to the circumstances of the present case.
The starting point, for the analysis of the argument, is that, as the publisher of the two articles, Google bore the onus of proving each of the elements of the statutory defence prescribed by s 30. Thus, it was required to prove, on the balance of probabilities, that the persons, to whom the articles were published, had a relevant interest or apparent interest in them. In Duffy (FC), Peek J and Hinton J each separately rejected the proposition advanced by Google that the onus should lie on the plaintiff to prove that the unidentified members of the class, to whom the particular articles were published, did not consist of persons who had a relevant interest in the subject matter of it. As Peek J noted, that proposition is contrary to the proper application of the onus of proof.[186]
[186]Ibid 432 [445] (Peek J), 471 [607], 472–3 [613]–[614], 474 [618]–[619] (Hinton J).
Further, the circumstances of the present case are different to, and may be distinguished from, those in Duffy (FC), which persuaded Kourakis CJ in that case to conclude that the unknown persons, to whom the articles were published, had a relevant interest in it. In that case, Kourakis CJ was able to identify two specific classes of persons, to whom the article was published, and who would have a relevant interest in the subject of it for the purposes of s 30 — persons who were considering having a professional relationship with the plaintiff, and persons who used internet psychics.[187] In light of the particular topic under consideration, Kourakis CJ was prepared to infer that the small number of unidentified searchers had the same or a similar interest in the subject of the article.[188]
[187]Ibid 387–8 [289]–[290].
[188]Ibid 388 [293].
In the present case, the same process of inference was not available in respect of either article under consideration. Each article concerned a topic that was likely to arouse curiosity rather than inform on a matter in which a reader had a particular legitimate interest. As we have mentioned, the activities of the underworld in Melbourne were, and remained for some time, a matter of public discussion and considerable publicity. That topic was quite different to the more limited and restricted topic under discussion in Duffy (FC), which was a topic which might have been considered to be one that might only attract persons who either wished to have some relationship with the plaintiff in that case, or with an internet psychic.
Further, the Underworld article was published well outside Melbourne, and indeed, as we have noted, the article was published throughout Australia. That circumstance also militated against a finding, on the balance of probabilities, that each of the unidentified persons, who received the article published by Google, were either considering engaging Mr Defteros as a lawyer or were considering undertaking employment with his firm.
In the same respect, the fact that the Wikipedia article was accessed by use of the search terms ‘melbourne convicted underworld’, ‘melbourne underworld figures’ or ‘melbourne convicted mafia’, weighs against a conclusion, on the balance of probabilities, that all of the unidentified persons who accessed that article through the Google search engine did so for a purpose which could be properly characterised as an interest or apparent interest under s 30 of the Act.
For those reasons, ground 4 of the application for leave to appeal in the 2016 proceeding must fail. In addition, we reject the proposition contained in ground 6 of the notice of contention in the 2017 proceeding that the judge erred in failing to conclude that each of the persons to whom the Wikipedia article was published had an interest or apparent interest for the purposes of s 30.
Further, in respect of the Wikipedia article, we are not persuaded that the judge erred in her conclusion that Google did not act reasonably in publishing the Wikipedia article between 27 September and November 2017. In that respect, the judge referred to the fact that Ms Ahn, who responded to the Concerns Notice, did not give any evidence why she considered Wikipedia to be a reputable source so as to come within Google’s ‘Reputable Source Defamation Push Back Policy’. Her Honour also noted the evidence of Ms Edwards that, based on Google’s Search Quality Evaluator Guidelines, Google regards Wikipedia as a high quality website, because it has its own editorial processes, journalists and editorial team.[189] However, as the judge noted, the guidelines, which were subsequently tendered, noted that in the case of Wikipedia, Google should perform ‘page-level checks’ on the individual articles contained in it. The judge further noted that no evidence was given that anyone at Google had performed such a check on the Wikipedia article.[190]
[189]Reasons [223].
[190]Ibid [225].
Based on that evidence, the judge was not only justified, but correct, in determining that it could not be concluded that Google’s conduct in publishing the Wikipedia article between 27 September and November 2017 was reasonable.
Accordingly, ground 4 of the application for leave to appeal in the 2016 proceeding must be rejected. In addition, we would not accept ground 6 of the notice of contention in the 2017 proceeding.
TRIVIALITY
In each proceeding, Google pleaded and relied on the statutory defence of triviality under s 33 of the Act. The judge rejected that defence in the 2016 proceeding, but in the 2017 proceeding, her Honour concluded that Google had established the defence in respect of the publication of the Wikipedia article. That conclusion by the judge, in the 2017 proceeding, is the subject of ground 3 of the application by Mr Defteros for leave to appeal.
In addition, the application of the defence is the subject of ground 7 of the notice of contention in the 2017 proceeding in respect of the publication of the Third Matter. That ground is premised on a conclusion by this Court that the trial judge should have found that the Third Matter was published on only 27 occasions in the relevant period. In view of our conclusions concerning that issue, and in view of our rejection of ground 2 of the proposed grounds of appeal relied on by Mr Defteros (in respect of imputations 7 and 8), it is not necessary for us to address the matters raised by ground 7 of the Notice of Contention.
Section 33 of the Act provides:
It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
Defence of triviality — conclusions by judge in 2017 proceeding
In considering the issue of triviality, the judge commenced by noting that the publication of the Wikipedia article to Ms Vick could not have been a cause of harm to Mr Defteros, because she had already seen the article earlier. The judge further concluded that a substantial proportion of the other people, to whom the article was published, were working on Mr Defteros’ defamation proceeding, and accordingly the judge did not consider that the publication to those people was likely to have caused harm to him.[191]
[191]Ibid [265]–[266].
In respect of the other people, to whom the Wikipedia article was published, the judge concluded as follows:
The article was published to a handful of other people, about whom nothing is known, other than their search query, ‘melbourne underworld figures’. I infer from this that those people were not looking for information about Mr Defteros. They clicked through to a long Wikipedia article containing a wealth of information about Melbourne’s underworld and the gangland killings, in which there are three passing references to Mr Defteros. Those references are not especially eye-catching, against the background of 15 years of violence and general lawlessness that is recounted in the article.
It is also relevant here that a Google search was only one way to locate and view the Wikipedia article on the internet. Google is one of several search engines available. In addition, a user could also have navigated directly to the Wikipedia website and searched there for information about Melbourne Underworld figures. Such a user could also, as Mr Defteros accepted, have edited the article. Indeed, the Wikipedia article was edited from time to time, including by or on behalf of Mr Defteros.[192]
[192]Ibid [267]–[268].
Accordingly, the judge held that there was ‘no real chance’ of Mr Defteros sustaining harm.[193]
[193]Ibid [269].
Submissions
In support of ground 3 of his application for leave to appeal, counsel for Mr Defteros submitted that the references to him, in the Wikipedia article, contained a serious imputation against him, namely, that he was a criminal associate of the Melbourne underworld group ‘The Carlton Crew’. Accordingly, any person who read the article, and to whom that imputation was conveyed, would think less of him. It was submitted that, in view of the publication of such a serious imputation, albeit to a handful of people, it could not be concluded that Google had discharged the onus to establish that there was the absence of a ‘real chance of harm’ to M Defteros.
Counsel noted that the judge also took into account that there were other ways to navigate the Wikipedia article, and that users could edit the article. However, it was submitted, the fact that other people might have published it could have no bearing on whether the publication of the article by Google was unlikely to cause Mr Defteros harm. Further, the judge had already accounted for people who might have read the article in an edited form, so that the handful of readers who the judge concluded had read the article were people to whom it was published in an unedited form.
In response, counsel for Google noted that only one of the three passing references to Mr Defteros in the Wikipedia article was defamatory of him. Counsel further referred to the findings by the trial judge that Google had published the Wikipedia article to some 25 people, a substantial proportion of whom were working on Mr Defteros’ claim that is the subject of the 2017 proceeding. Nothing is known about the handful of other people to whom the article was published. In view of the fact that the search query was ‘melbourne underworld figures’, the judge inferred, correctly, that those people did not specifically look for information about Mr Defteros. The article itself contained a wealth of information about the Melbourne underworld and the Gangland killings. Accordingly, it was submitted, the judge was correct to conclude that the circumstances of the publication were such that there was no real chance of Mr Defteros sustaining harm from the defamatory imputation contained in it.
Triviality — legal principles
The statutory defence of triviality was considered by this Court in Barrow v Bolt.[194] In that case, the plaintiff made a complaint to the Australian Press Council (APC) after a blog post was made by the first defendant, Andrew Bolt, republishing an article from that day’s The Australian newspaper. The substance of the complaint by the plaintiff to the APC was that the blog was unfair and unbalanced. In response, the first defendant sent an email to the managing director of the second respondent (The Herald and Weekly Times Pty Ltd), which was then forwarded to the APC. The plaintiff brought proceedings in defamation based on the content of the email. The trial judge accepted that the email conveyed four defamatory imputations concerning the plaintiff, but concluded that each was made on an occasion of qualified privilege. The judge also found that the defendants had made out a defence of triviality.
[194][2015] VSCA 107 (‘Barrow v Bolt’).
That decision was upheld on an application for leave to appeal to this Court. In reaching that conclusion, the Court outlined the fundamental principles concerning s 33 in the following terms:
The basic principles, relating to s 33, were stated by the trial judge, and are uncontroversial. In short, they may be stated as follows.
First, the inquiry, whether the publication was likely to cause harm to the applicant, is directed to the time of publication. The issue, at that time, concerns ‘… the quality of the publication in respect of its proneness to cause harm.’
Secondly, the focus of the inquiry is on the ‘circumstances of the publication’. The critical test is whether those circumstances were such, at the time of publication, that it was unlikely that the applicant would suffer harm. The circumstances include (inter alia) the content of the publication, the extent of the publication, the nature of the recipients and their relationship with the applicant. However, the phrase ‘circumstances of the publication’ is not sufficiently wide to encompass the previous bad reputation of a plaintiff.
Thirdly, the phrase ‘unlikely to sustain any harm’ does not mean that it is sufficient for the defendant to establish that it is ‘more probable than not’ that the plaintiff will not suffer harm. Rather, the defendant must demonstrate that there is ‘the absence of a real chance’, or the ‘absence of a real possibility’, of harm.
Fourthly, the defendant is required to establish that, at the time of publication, the circumstances were such that the plaintiff was unlikely to suffer ‘any’ harm. Accordingly, the onus, on the defendant, to prove that matter, is high.
Fifthly, the defence, provided by s 33, applies to the publication of ‘defamatory matter’. Thus, s 33 provides a defence where matter, that has been published, is defamatory of the plaintiff. In order to be defamatory, the matter must tend to lower the reputation of the plaintiff in the eyes of ordinary reasonable members of the community. Thus, s 33 contemplates a case in which, notwithstanding that a publication about a plaintiff is defamatory in that sense, nevertheless the ‘circumstances of publication’ were such that the plaintiff was unlikely to sustain any harm as a result.[195]
[195]Ibid [33]–[38] (Kaye JA) (citations omitted). See also Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 64,947-8 (Moffitt P); Jones v Sutton (2004) 61 NSWLR 614.
Triviality defence — analysis and conclusion
For the reasons that follow, we are well persuaded that the judge appropriately applied the principles discussed in Barrow v Bolt, and was correct to conclude that Google had established that there was no real chance of Mr Defteros sustaining harm by reason of the publication of the Wikipedia article.
The starting point is the finding by the judge that a substantial proportion of the 25 people, to whom Google published the article, were working on Mr Defteros’ claim that is the subject of the 2017 proceeding. The only fact, which was known about the handful of other people, to whom the article was published, was that they were users of the Google search engine who had entered the words ‘melbourne underworld figures’ as the search query which led them to the Wikipedia article. There was no evidence as to the identity of those people, whether they knew of Mr Defteros, or whether they had any curiosity or interest about him at all.
The article itself was lengthy and detailed. It consisted of eight printed pages. The text of the article only contained three references to Mr Defteros, which the judge correctly described as ‘passing references’.[196] Only one of those references — under the sub-heading ‘Carlton Crew’ — was defamatory of Mr Defteros. The content of the article was focused on personalities who, and events which, had loomed large in the media in the first decade of this century.
[196]Reasons [267].
The article commenced by way of introduction with a brief description of the ‘Melbourne Gangland killings’. The next section of the article was entitled ‘Groups and factions’. Some six such groups were nominated in that section of the article. The third group was entitled ‘The Carlton Crew’. It consisted of seven named persons, one of whom was Mr Defteros. We interpolate that it was that section of the article that was found to be defamatory of Mr Defteros. In total, there were 46 persons named under the six sub-headings. As mentioned, a number of them had been prominent figures in the Melbourne underworld and in the media.
The article then set out, in some detail, a chronology of all of the deaths of underworld figures from 1995 to 2010. That section was the major part of the article. It was followed by a section headed ‘[a]rrests and sentencing’, which comprised a little over one page. The section included a reference to the fact that conspiracy to murder charges against Mr Defteros and Mario Condello had been dropped nolle prosequi by the Director of Public Prosecutions in June 2005. The section also included the fate of a number of other members of the underworld in the criminal justice system.
In those circumstances, it is evident that the three passing references to Mr Defteros, in the Wikipedia article, occurred in the context of an article that focused on some 15 years of violence and lawlessness that was the subject matter of the article. In those circumstances, the fact that the article was published to a handful of persons, about whom nothing is known, and who accessed the article by reference to the general search terms, was a compelling basis for the conclusion by the judge that there was no real possibility of Mr Defteros sustaining harm by reason of the defamatory imputation contained in the article about him.
It follows that ground 3 of the application for leave to appeal in the 2017 proceeding must fail.
DAMAGES
Proposed grounds of appeal 4 and 5 in Mr Defteros’ application for leave to appeal in relation to the 2017 proceeding allege that the judge erred in failing to assess and award damages for the Third Matter and the Fourth Matter. Those grounds are premised on Mr Defteros having succeeded on his proposed grounds 2 and 3 so as to establish an entitlement to damages in respect of the Third Matter and the Fourth Matter. As Mr Defteros has not succeeded on his earlier grounds, these grounds must also be rejected.
COSTS
Each cross-application for leave to appeal on costs was premised upon the cross-applicant establishing one of his or its grounds of appeal so as to reopen the question of the costs of the proceedings below. Neither cross-applicant has succeeded on any of his or its grounds of appeal. Therefore each cross-application for leave to appeal must be refused.
CONCLUSION
Each of the applications for leave to appeal was sufficiently arguable to justify leave to appeal being granted. For the reasons given above, however, each appeal must be dismissed and, as we have already said, both cross-applications for leave to appeal on costs must be refused.
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