JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	13–15, 18–21 November 2019
DATE OF JUDGMENT:	30 April 2020
CASE MAY BE CITED AS:	Defteros v Google LLC
MEDIUM NEUTRAL CITATION:	[2020] VSC 219

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DEFAMATION – Publication – Whether internet search engine provider published search results and webpage reached by clicking on hyperlink within search results – When defendant was on notice that search results included matters complained of – When and to whom matters published – Whether pleaded imputations conveyed by the matters published.

DEFAMATION – Defences – Common law qualified privilege – Whether community of interest between defendant and users of its search engine – No community of interest – Statutory qualified privilege – Whether users of search engine had ‘interest or apparent interest’ sufficient for statutory defence – Sufficient interest established for some but not all users – Whether defendant acted reasonably in publishing matters to users with sufficient interest – Whether statutory defences of fair report, innocent dissemination and triviality established – Whether defence of consent established – Defamation Act 2005 (Vic), ss 29, 30, 32, 33.

DEFAMATION – Damages – Hurt and distress of plaintiff – Seriousness of imputations – Limited publication – No evidence of grapevine effect – Whether aggravated damages warranted by conduct of defence – Whether damages mitigated – Defamation Act 2005 (Vic) ss 34, 38.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr DP Gilbertson QC with Mr PA Heywood-Smith QC and Mr EH Guthrie	Defteros Lawyers
For the Defendant	Ms GL Schoff QC with Ms L De Ferrari SC and Ms CL Alden	Johnson Winter & Slattery

Table of Contents

Introduction ...................................................................................................................................... 1

Publication....................................................................................................................................... 10
The Google search engine.............................................................................................................. 19
Publication – Legal principles........................................................................................................ 23
Dates of publication........................................................................................................................ 31
To whom did Google publish?...................................................................................................... 37
Common law innocent dissemination.......................................................................................... 46
Imputations..................................................................................................................................... 47
Common law defence of qualified privilege................................................................................ 57
Statutory qualified privilege.......................................................................................................... 60
Statutory defence of fair report...................................................................................................... 71
Statutory defence of innocent dissemination............................................................................... 73
Statutory defence of triviality........................................................................................................ 76
Consent............................................................................................................................................ 82
General damages............................................................................................................................. 85

Disposition....................................................................................................................................... 97

HER HONOUR:

Introduction

George Defteros is a Melbourne solicitor who specialises in the practice of criminal law. He has been a principal of various legal practices since 1984, most recently Defteros Lawyers. During the 1990s and early 2000s, he was a partner of the firm Pryles & Defteros. A number of men who became notorious during Melbourne’s ‘gangland wars’ were clients of that firm, including Alphonse Gangitano, Dominic ‘Mick’ Gatto, and Mario Condello.

On 17 June 2004, Mr Defteros and 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 for a number of hours, before appearing at the Magistrates’ Court at Melbourne where he was granted…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Defteros v Google LLC

Details

AGLC: Defteros v Google LLC [2020] VSC 219
Case: [2020] VSC 219
Decision Date: 30 April 2020

CaseChat Overview and Summary

In the matter of Defteros v Google LLC, the plaintiff sought relief for defamatory imputations allegedly published by the defendant, Google LLC. The dispute centred on the dissemination of search results and related content via Google's search engine, which Defteros claimed defamed him. The case was heard in the County Court of Victoria.

The court was required to determine whether Google was a publisher of the defamatory content, considering whether it was on notice of the defamatory content, when and to whom the content was published, and whether the pleaded imputations were conveyed. The court also had to evaluate the applicability of various defences under the Defamation Act 2005 (Vic), including common law and statutory qualified privilege, fair report, innocent dissemination, and triviality. Additionally, the court needed to assess whether the defence of consent was applicable. Finally, the court had to consider the damages, including whether aggravated damages were warranted due to the conduct of the defence and whether the damages were mitigated.

The court found that Google was not a publisher of the defamatory content, as it was on notice of the content, but the publication was attributed to the users of the search engine who accessed the content. The court held that the statutory defence of qualified privilege was applicable to some users who had a sufficient interest in the content, but not to others. The court found that Google acted reasonably in publishing the content to users with a sufficient interest. The court also determined that the defences of fair report, innocent dissemination, and triviality did not apply. The defence of consent was also not established. Consequently, the court held that the defamatory imputations were published, and the plaintiff was entitled to damages for hurt and distress. The court awarded damages and noted that no evidence of a grapevine effect was presented. The court declined to award aggravated damages, finding that the conduct of the defence did not warrant such an award. The court also found that the damages were not mitigated.

Google LLC was ordered to pay the plaintiff $30,000 in damages for hurt and distress, with no order as to costs.

Orders