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George Defteros v Google Inc LLC

George Defteros v Google Inc LLC

Case [2018] VSCA 176 25 July 2018

Media & Entertainment Law

Defamation

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0081

GEORGE DEFTEROS	Applicant
v
GOOGLE INC LLC	Respondent

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JUDGES:	BEACH, HARGRAVE JJA and SIFRIS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 July 2018
DATE OF JUDGMENT:	25 July 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 176
JUDGMENT APPEALED FROM:	[2018] VSC 375 (Macaulay J)

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DEFAMATION – Publication – Publication of results of internet search engine – Whether owner of internet search engine is a publisher of the results of searches – Google Inc v Duffy (2017) 129 SASR 304 and Trkulja v Google LLC [2018] HCA 25 referred to.

PRACTICE AND PROCEDURE – Application for leave to appeal – Pleadings – Whether judge erred in failing to strike out pleadings denying that search engine proprietor was a publisher of search results – Primary judge’s decision correct – Application for leave to appeal refused – Supreme Court (General Civil Procedure) Rules 2015, r 23.02.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Heywood-Smith QC with Mr E Guthrie	Defteros Lawyers
For the Respondent	Ms G L Schoff QC with Ms L De Ferrari SC	Johnson Winter & Slattery

BEACH JA

HARGRAVE JA
SIFRIS AJA:

The applicant (George Defteros) is the plaintiff in a defamation proceeding currently being managed in the Common Law Division.[1] The respondent (Google Inc LLC) is the defendant in that proceeding. In his amended statement of claim, the applicant alleges that, in 2016, the respondent published certain ‘web matter’ which was defamatory of him. In broad terms, the web matter is alleged to consist of a search result returned from the entry of certain search parameters into the respondent’s search engine; and an underlying web page, accessed via a uniform resource locator (URL) hyperlink for that underlying web page. The claim for publication is confined to publication after the applicant gave notice to the respondent that publication was occurring as a result of the use of the respondent’s search engine.
[1]At the time of the order the subject of the present application, the proceeding was fixed for hearing in August 2018. That hearing date, however, has now been vacated as a result of further issues relating to discovery arising between the parties.

In its defence,[2] the respondent denies that it published the web matter. Additionally, the respondent makes a number of affirmative pleas, including that it is not the publisher of results that are returned to a user of its search engine; that it is not the publisher of any third party document hyperlinked to the result of a search using its search engine; and that it is not the publisher of any third party document to which a user of the search engine may navigate as a result of performing a search using its search engine.
[2]The current form of which is an amended defence to an amended statement of claim dated 16 October 2017.

In May 2018, the applicant filed a summons (‘the summons’) seeking to strike out, pursuant to r 23.02…

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 George Defteros v Google Inc LLC

Details

AGLC: George Defteros v Google Inc LLC [2018] VSCA 176
Case: [2018] VSCA 176
Decision Date: 25 July 2018

CaseChat Overview and Summary

The plaintiff, George Defteros, brought a defamation claim against Google Inc LLC in the Supreme Court of South Australia. The crux of the dispute was whether Google, as the proprietor of an internet search engine, was considered a publisher of the search results that appeared when a user searched for Defteros' name. Defteros argued that Google was a publisher and was thus liable for the defamatory content that appeared in the search results. Google, on the other hand, contended that it was not a publisher and therefore could not be held liable for the content of the search results.

The legal issues before the court were whether Google was a publisher of the search results and, if so, whether the primary judge erred in not striking out the pleadings that denied this. The court considered previous cases such as Google Inc v Duffy and Trkulja v Google LLC, which had established that a search engine proprietor was not a publisher of search results. The court held that the primary judge was correct in dismissing the plaintiff's claim and denying Google's application to strike out the pleadings. The court found that Google was not a publisher of the search results, as it did not exercise editorial control over the content that appeared in the search results.

The court refused the plaintiff's application for leave to appeal the decision. The court found that the primary judge had correctly applied the relevant legal principles and that there was no error in the judge's decision. The court emphasised that the proprietor of a search engine was not a publisher of the search results and therefore could not be held liable for the content that appeared in the search results. The court also noted that the plaintiff's pleadings were insufficient to establish that Google was a publisher, and that the primary judge had correctly dismissed the claim. The court concluded that the application for leave to appeal should be refused.

Orders