Google LLC v Defteros

Case [2022] HCA 27

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

GOOGLE LLC  APPELLANT

AND

GEORGE DEFTEROS  RESPONDENT

Google LLC v Defteros

[2022] HCA 27

Date of Hearing: 3 May 2022
Date of Judgment: 17 August 2022

M86/2021

ORDER

1. Appeal allowed.

2. Set aside order 2 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 17 June 2021 and, in lieu thereof, order that:

(a)the appeal be allowed;

(b)order 1 of the orders of the primary judge made on 6 May 2020 be set aside and, in lieu thereof, it be ordered that there is judgment for the defendant; and

(c) order 1 of the orders of the primary judge made on 3 June 2020 be set aside.

3. The appellant pay the respondent's costs of the appeal.

On appeal from the Supreme Court of Victoria

Representation

B W Walker SC with G L Schoff QC and C L Alden for the appellant (instructed by Johnson Winter & Slattery)

D P Gilbertson QC with J A Castelan and E H Guthrie for the respondent (instructed by Defteros Lawyers)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Google LLC v Defteros

Defamation – Publication – Where appellant operated internet search engine – Where search engine produced search results to users in response to user-designed search queries through use of computer programs and algorithms – Where each search result relevantly comprised title of webpage, snippet of content, and hyperlink to another webpage on World Wide Web – Where inputting respondent's name into search engine returned search result ("Search Result"), which included hyperlink to article published on newspaper's website containing matter defamatory of respondent – Where defamatory matter not reproduced in Search Result – Whether appellant "publisher" of defamatory matter – Whether providing Search Result amounted to act of participation in communication of defamatory matter to third party.

Words and phrases – "act of participation in the communication of defamatory matter to a third party", "content-neutral", "defamation", "Google search engine", "googling", "hyperlink", "incorporation", "incorporation by reference", "instrumental in, or contributes to any extent to, the publication of defamatory matter", "internet search engine", "lends assistance to the publication", "mere reference", "navigate information on the World Wide Web", "publication", "publisher", "search engine", "search query", "search result", "search terms".

  1. KIEFEL CJ AND GLEESON J.   The respondent, George Defteros, is a solicitor who has practised criminal law for many years. In the course of that practice he has acted for persons who became well-known during Melbourne's "gangland wars", including Dominic ("Mick") Gatto and Mario Condello. In 2004, the respondent and Mr Condello were charged with conspiracy to murder and incitement to murder Carl Williams and others and were committed to stand trial. In 2005, the Director of Public Prosecutions withdrew the charges against the respondent. In the intervening period the prosecution of the respondent and Mr Condello was widely…

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AGLC
Google LLC v Defteros [2022] HCA 27
Case
[2022] HCA 27
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Court of Appeal of the Supreme Court of Victoria concerning whether Google LLC, as the operator of an internet search engine, was a "publisher" of defamatory material. The dispute arose when a search query using the respondent's name generated a search result that included a hyperlink to an article on a newspaper's website containing defamatory matter concerning the respondent. The defamatory content itself was not reproduced in the search result, which instead comprised a title, a snippet of text, and a hyperlink to the original article.

The central legal issue before the High Court was whether Google's act of providing a search result, which included a hyperlink to a webpage containing defamatory material, constituted an "act of participation in the communication of defamatory matter to a third party," thereby making Google a publisher at common law. This required the Court to consider the principles of publication in defamation law and how they apply to the automated operation of an internet search engine.

The Court reasoned that while publication in defamation requires an act of participation in the communication of defamatory matter to a third party, the operation of Google's search engine, which is a fully automated process, did not amount to such participation. The Court distinguished between providing a hyperlink to defamatory material and reproducing or incorporating that material. It held that merely providing a hyperlink, which directs a user to another webpage and assists them in accessing it, does not make the search engine operator a publisher of the content on that linked page. The Court concluded that Google, by providing the hyperlink to the defamatory article, did not publish the defamatory matter.

Consequently, the High Court allowed the appeal, setting aside the orders of the Court of Appeal and ordering that there be judgment for the defendant (Google LLC). The appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside order 2 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 17 June 2021 and, in lieu thereof, order that:

(a) the appeal be allowed;

(b) order 1 of the orders of the primary judge made on 6 May 2020 be set aside and, in lieu thereof, it be ordered that there is judgment for the defendant; and

(c) order 1 of the orders of the primary judge made on 3 June 2020 be set aside.

3. The appellant pay the respondent's costs of the appeal.

Background

Background to the litigation

The majority in Voller also considered more broadly what the law requires for there to be a publication and for a person to be liable as a publisher. Publication was explained as the actionable wrong in the tort of defamation by which harm is occasioned to a person's reputation[28]. Publication was described as a technical term[29], which is to be understood as a bilateral act by which the publisher makes the defamatory material available and a third party has it available for their comprehension[30]. It may be understood as the process by which a defamatory statement or imputation is conveyed[31]. Adopting Webb v Bloch, any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher, regardless of their knowledge or intent[32]. So understood, a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher[33].[28]Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767 at 774 [23] per Kiefel CJ, Keane and Gleeson JJ, 779 [59] per Gageler and Gordon JJ; 392 ALR 540 at 546, 553.[29]Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767 at 774 [24] per Kiefel CJ, Keane and Gleeson JJ, 780 [64]-[65] per Gageler and Gordon JJ; 392 ALR 540 at 546, 554.[30]Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767 at 774 [23] per Kiefel CJ, Keane and Gleeson JJ, 779 [61] per Gageler and Gordon JJ; 392 ALR 540 at 546, 553, referring to Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 600 [26].[31]Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767 at 774 [23] per Kiefel CJ, Keane and Gleeson JJ, 779 [59] per Gageler and Gordon JJ; 392 ALR 540 at 546, 553.[32]Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767 at 775 [30] per Kiefel CJ, Keane and Gleeson JJ; 780 [68] per Gageler and Gordon JJ; 392 ALR 540 at 547, 554.[33]Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767 at 775 [32] per Kiefel CJ, Keane and Gleeson JJ, 779 [59] per Gageler and Gordon JJ; 392 ALR 540 at 548, 553.Applying principles to facts The difficulty in a case such as the present does not arise from any uncertainty as to the principles concerning the publication of defamatory matter. As the Court went on to observe in Trkulja[34], the difficulty which can arise is in the application of the principles to the particular facts of the case. Difficulty may arise where the principles relating to publication are considered in the abstract and not in the factual context in which they are stated.[34]Trkulja v Google LLC (2018) 263 CLR 149 at 163-164 [39]. It was not suggested by the courts below that the appellant, as an internet search engine operator, actually communicated the defamatory material. It is of course possible that search results may themselves contain matter which is defamatory. This was acknowledged in Trkulja[35]. But that is not this case.[35]Trkulja v Google LLC (2018) 263 CLR 149 at 162 [35]. The question which arises here is whether providing search results which, in response to an enquiry, direct the attention of a person to the webpage of another and assist them in accessing it amounts to an act of participation in the communication of defamatory matter.The broad rule applied

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ GLEESON J GAGELER J (dissent) KEANE J (dissent)
For the foregoing reasons, the appellant did not publish the Underworld article. It is therefore unnecessary to consider the defences of innocent dissemination and qualified privilege.Conclusion The appeal should be allowed. We agree with the orders proposed by Kiefel CJ and Gleeson J.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, GLEESON J,

It will not be necessary to consider the grounds relating to the defences. Applying the settled principles of the common law of defamation concerning the communication of defamatory matter and participation in it, it cannot be concluded that the appellant, by providing the hyperlink, published the Web Matter.The operation of the appellant's search engine In essence, an enquiry made using the appellant's search engine may elicit a number of results in response which, for each entry, have in common these features: the title of the webpage referred to in the entry; the Uniform Resource Locator ("URL") associated with the webpage; and a snippet of the content from the webpage (or an image). A hyperlink is provided in the title. When the user clicks on it, the webpage appears on the user's web browser. The trial judge described the operation of, and results obtained from, the appellant's search engine in the context of the World Wide Web by reference to the evidence given at the trial. The accuracy of her Honour's description was not disputed by the parties and the description was adopted by the Court of Appeal. It is convenient to take the same course. Her Honour explained that[9]:[9]Defteros v Google LLC [2020] VSC 219 at [21]-[33]."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."