Google LLC v Defteros - [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".

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 reported, including in The Age newspaper, and articles were placed on that newspaper's website.
The appellant, Google LLC, makes available to those seeking to navigate information on the World Wide Web its search engine. In early 2016, the respondent became aware that an internet search of his name using the Google search engine produced search results which included a snippet of an article published by The Age in 2004, on the day after the respondent was charged. This was termed the "Search Result" in the proceedings below. The title of the article, displayed in the Search Result, contained a hyperlink to the full article on The Age's website. The article was entitled "Underworld loses valued friend at court". In the proceedings below it was referred to as the "Underworld article". Together, the Search Result and the Underworld article were said to comprise the "Web Matter" which the respondent claimed defamed him.
In proceedings brought in the Supreme Court of Victoria, the respondent claimed damages for defamation from the appellant as publisher of the Web Matter. The appellant denied publication. It relevantly pleaded, in the alternative, both the common law and statutory defences of innocent dissemination and qualified privilege[1].
[1]Defamation Act2005 (Vic), ss 30, 32.
The trial judge, Richards J, found that the appellant had published the Web Matter, based on her Honour's view of the significance of the insertion of a hyperlink to The Age website in the Search Result[2]. Her Honour found that the Web Matter conveyed the defamatory imputation that the respondent had crossed the line from being a professional lawyer for, to become a confidant and friend of, criminal elements[3]. Only the defence of statutory qualified privilege was made out and only with respect to a substantial proportion, but not all, of the persons to whom her Honour found the Web Matter had been published[4]. Her Honour awarded the respondent general damages of $40,000 and later made further orders for interest and costs, the latter reflecting the "mixed success" of the parties in the proceedings[5].
[2]Defteros v Google LLC [2020] VSC 219 at [61]-[62].
[3]Defteros v Google LLC [2020] VSC 219 at [139(a)], [146], [290(b)].
[4]Defteros v Google LLC [2020] VSC 219 at [220], [290(c)].
[5]Defteros v Google LLC [2020] VSC 324 at [5]-[7].
The action concerning the Web Matter was heard by the trial judge together with an action brought by the respondent with respect to other material which it was alleged was later published by the appellant and which was also said to be defamatory of him. That second action was dismissed.
Relevantly to this appeal, the appellant sought leave from the Court of Appeal to appeal the judgment in respect of the Web Matter; and the respondent sought leave to cross-appeal in relation to the costs order for the same[6]. The parties also filed applications and cross-applications for leave to appeal in respect of the second action[7]. The Court of Appeal (Beach, Kaye and Niall JJA) granted both applications for leave to appeal but dismissed the appeals. It also dismissed both cross-applications for leave to appeal in relation to costs[8].
[6]Defteros v Google LLC [2021] VSCA 167 at [8]-[9].
[7]Defteros v Google LLC [2021] VSCA 167 at [10]-[12].
[8]Defteros v Google LLC [2021] VSCA 167 at [261].
The appeal to this Court
The appellant appeals to this Court from that part of the judgment given by the Court of Appeal on 17 June 2021 concerning the Web Matter, pursuant to a grant of special leave to appeal which was conditional upon the appellant paying the respondent's costs of the appeal and not seeking to disturb the costs orders in the courts below.
The appellant's original Notice of Appeal contains three grounds. The first and principal ground is that the Court of Appeal was wrong to conclude that the appellant published the Web Matter. The second and third are that the Court of Appeal was wrong to reject the appellant's defences of common law and statutory qualified privilege. At the outset of the hearing of this appeal, the appellant was given leave to amend its Notice of Appeal to add a further ground – that the Court of Appeal was wrong to have rejected its defence of innocent dissemination at common law and pursuant to s 32 of the Defamation Act 2005 (Vic).
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."
Her Honour went on to refer[10] to the appellant's ability to remove a webpage, identified by its URL, from the search results. It is not necessary to discuss this or the appellant's policy relating to removal. They are not relevant to the question whether a matter which is defamatory is published by what is provided by the Search Result, namely the provision of a hyperlink with accompanying text that is not itself defamatory.
[10]Defteros v Google LLC [2020] VSC 219 at [34].
The use of the appellant's search engine, using the respondent's name as the search query, yielded a set of search results which were displayed on the appellant's webpage. The results included the Search Result the subject of the Web Matter[11]:
[11]Defteros v Google LLC [2020] VSC 219 at [11].
"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"
If the person conducting the search clicked the hyperlink in the title in the Search Result, the Underworld article and a photograph of the respondent would be displayed[12].
[12]Defteros v Google LLC [2020] VSC 219 at [12].
Publication – reasons of the courts below
The trial judge concluded[13] that the appellant "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." That is what the appellant's search engine is designed to do, her Honour said. This conclusion was said to follow from an application of the principles in Webb v Bloch[14]. It followed that the appellant published the Web Matter by providing a hyperlink in the Search Result to the Underworld article[15].
[13]Defteros v Google LLC [2020] VSC 219 at [54].
[14](1928) 41 CLR 331.
[15]Defteros v Google LLC [2020] VSC 219 at [61].
Her Honour further held[16] that, as a secondary publisher, the appellant was not liable for publication of the defamatory matter complained of until a reasonable time after it had been notified that the Search Result included that matter.
[16]Defteros v Google LLC [2020] VSC 219 at [64].
It would appear that in argument before her Honour, an analogy was sought to be drawn between search results and a catalogue to a library collection. Her Honour's findings referred to the World Wide Web as a "vast digital library". Her Honour considered that whilst the analogy was useful, it did not quite capture what occurred. In her Honour's view, a hyperlink is more than simply a reference to where information can be found on the Web. A closer analogy is a librarian who fetches a book 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. Her Honour said[17]: "[i]n 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".
[17]Defteros v Google LLC [2020] VSC 219 at [55], citing Google Inc v Duffy (2017) 129 SASR 304 at 356-357 [173]-[174].
The Court of Appeal held[18] there to be no error in the trial judge's conclusion that the appellant became a publisher of the Underworld article seven days after it received notification of the defamatory matters contained therein. Their Honours considered[19] that the Search Result was an "enticement" to the reader to click on the hyperlink to obtain more information about the respondent. In doing so, their Honours expressly approved the approach of Hinton J in Google Inc v Duffy[20]. Their Honours also agreed with the approach of Kourakis CJ in Google Inc v Duffy and considered that the Search Result, containing the hyperlink to the Underworld article, "incorporated" the content of the Underworld article even though it did not repeat any of the text in the article said to be defamatory of the respondent[21]. Both the concepts of "enticement" and "incorporation" were said to reflect the test in Webb v Bloch because they fasten on steps that lend assistance to the publication[22]. The combination of the search terms, the text of the Search Result and the insertion of the hyperlink both directed and encouraged the reader to click on the link for further information[23].
[18]Defteros v Google LLC [2021] VSCA 167 at [92].
[19]Defteros v Google LLC [2021] VSCA 167 at [85].
[20](2017) 129 SASR 304 at 467 [599].
[21]Defteros v Google LLC [2021] VSCA 167 at [86], citing Google Inc v Duffy (2017) 129 SASR 304 at 356 [173].
[22]Defteros v Google LLC [2021] VSCA 167 at [87].
[23]Defteros v Google LLC [2021] VSCA 167 at [87].
The publication of defamatory matter – principles

In Trkulja v Google LLC[24], it was said that "[i]n point of principle, the law as to publication is tolerably clear". This statement was made by reference to Webb v Bloch[25]. In Fairfax Media Publications Pty Ltd v Voller[26], a decision which was given subsequent to the judgment appealed from in this case, a majority of this Court affirmed the principles relating to the publication of defamatory matter which had been stated in Webb v Bloch.
[24](2018) 263 CLR 149 at 163 [39].
[25](1928) 41 CLR 331 at 363-364 per Isaacs J.
[26](2021) 95 ALJR 767; 392 ALR 540.
The issue in Voller was what was meant by the requirement of the common law of defamation that the publication of defamatory matter must be intentional. It was held that all that is required is that the defendant's act of participation in publication be voluntary[27].
[27]Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767 at 775 [32] per Kiefel CJ, Keane and Gleeson JJ, 780 [66] per Gageler and Gordon JJ; 392 ALR 540 at 548, 554.
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
It must be accepted that the principles regarding publication of defamatory material have been regarded as having a broad reach. In Voller[36], reference was made to what had been said by Abella J in Crookes v Newton[37] in this regard, namely that "the breadth of activity captured by the traditional publication rule is vast". But that is not to say that there are no limits to what actions are captured by the rule or that any connection between a person's act and the publication, however remote, will render them liable as a tortfeasor.
[36]Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767 at 775 [31] per Kiefel CJ, Keane and Gleeson JJ; 392 ALR 540 at 548.
[37][2011] 3 SCR 269 at 281-282 [18].
The correctness of the statement in Crookes v Newton may be seen most clearly from the cases which marked the early development of the defence of innocent dissemination, which was the common law's response to the strictness with which the rule of publication had been applied. But for the defence, persons who sold newspapers or periodicals would be liable as publishers[38], as would those who lent or sold copies of a book containing defamatory matter[39] and persons who delivered parcels which contained libellous documents[40]. What they may be seen to have in common is that the acts in question directly conveyed the defamatory material.
[38]Emmens v Pottle (1885) 16 QBD 354 at 357.
[39]cf Vizetelly v Mudie's Select Library Ltd [1900] 2 QB 170.
[40]Day v Bream (1837) 2 M & Rob 54 [174 ER 212].
The acts in question in Webb v Bloch and Voller are different from the examples given above. They did not involve the actual distribution of the defamatory material. The defendants were involved in and participated in the publication of defamatory material by conduct which preceded its dissemination. In Webb v Bloch, the defendants approved the creation of the defamatory material for the purpose of its distribution and, in Voller, the defendants encouraged the creation of the alleged defamatory matter. In Voller the defendants additionally facilitated its publication by providing a platform for its communication.
In Webb v Bloch, the plaintiff and the defendants were members of committees which represented wheat growers and purchasers of wheat scrip in different States. The committees had as their common object to seek compensation from the Government of South Australia for the benefit of the growers. To that end, the committees each instituted and controlled various legal proceedings. A difference of view arose between the South Australian committee, which the plaintiff chaired, and the Victorian committee, of which most of the defendants were members, as to whether litigation controlled by the South Australian committee should be settled. A solicitor acted for both committees.
One of the defendants, Mr Bloch, instructed the solicitor to compose a circular to be published to the growers in South Australia with a view to soliciting funds for further litigation, an action which was approved by the other defendants. The circular contained information which was untrue and defamatory of the plaintiff, Mr Webb. Mr Bloch knew certain of the contents of the circular to be untrue, one defendant was not aware of the circular's contents but was aware that certain statements in it were untrue and the other defendants were unaware of either the contents of the circular or whether statements in it were true or false. The majority, Knox CJ and Isaacs J, held all defendants to be liable for the publication of the defamatory matter in the circular. The solicitor's malice was also attributed to them.
Isaacs J explained[41] that "publication" in the law of libel did not just mean to physically distribute it. He said that "[t]o publish a libel is to convey by some means to the mind of another the defamatory sense embodied in [the document conveying the defamation]". On that basis the solicitor had "published" the defamation even though he had not himself disseminated it.
[41]Webb v Bloch (1928) 41 CLR 331 at 363.
Isaacs J then went on to discuss the meaning of "publication" as relevant to the defendants[42]. His Honour gave examples, by reference to a text and cases, of persons who were not the authors or disseminators of defamatory matter but were treated as publishers, as where a person suggested that the matter be written; caused it to be published; approved, concurred or showed their assent or gave their approbation to the libel; or assisted or encouraged the damage to another's reputation. Many of the cases drew upon the analogy of a principal and agent to explain the person's liability as publisher.
[42]Webb v Bloch (1928) 41 CLR 331 at 363-365.
Isaacs J concluded[43] that whilst it may be said that the solicitor was the "real author" or the "master mind", and the defendants were the "intermediate agents" to disseminate the libel, "[t]hey cannot employ the master mind for the very purpose, accept its suggestions, approve and disseminate its production, and then disclaim its malice".
[43]Webb v Bloch (1928) 41 CLR 331 at 365.
The defendants in Voller were media companies which each maintained a public Facebook page on which they posted hyperlinks to news stories, with an associated headline, comment and image. Clicking on the hyperlink took the reader to the news story on the defendant's website. But it was not these acts which were said to involve the defendants in publication of the alleged defamatory material; rather it was what the defendants did in seeking commentary upon the articles which brought them within the principles stated in Webb v Bloch. The defendants were found to have invited and encouraged comment about the articles from Facebook users. It was the response by some third-party users to that encouragement which contained the alleged defamatory material. It was the defendants' acts in facilitating, encouraging and assisting the posting of comments by the third-party users which rendered them liable as publishers of those comments[44].
[44]Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767 at 779 [55] per Kiefel CJ, Keane and Gleeson JJ, 779 [59], 788 [105] per Gageler and Gordon JJ; 392 ALR 540 at 552, 553, 564.
In each of Webb v Bloch and Voller the defendants' acts of approval and encouragement were clearly connected to the creation of the matter in question for the purpose of it being communicated to others. Voller had the additional feature that the media companies provided the place for publication. The present case has none of these features. The provision of the Search Result, including the hyperlink, has no connection to the creation of the Underworld article; its creation was in no way approved or encouraged by the appellant; and the appellant did not participate in it being placed on The Age's website.
Closer analogies – US and Canadian cases
The circumstances of the present case are closer in kind to those considered in a line of decisions from the courts of the United States and Canada.
Klein v Biben[45] concerned an article in a periodical which the plaintiff alleged was libellous. A later issue of the same periodical was alleged to have repeated the publication by the statement "For more details about [the plaintiff], see the Washington News Letter in The American Hebrew, May 12, 1944"[46]. That is to say, it drew attention to the earlier article. The question whether there was republication by reason of the specific reference in the later issue of the periodical was answered in the negative by the Court of Appeals of New York.
[45](1946) 296 NY 638.
[46]Klein v Biben (1946) 296 NY 638 at 639.
In MacFadden v Anthony[47] a magazine available for purchase contained an article which the plaintiff claimed was libellous. A radio commentator called attention to the article in the course of a broadcast. It was not claimed that the commentator repeated the words of the publication, verbatim or in substance, or that any of the words spoken by him were themselves defamatory. On a motion to dismiss the complaint for legal insufficiency, the New York Supreme Court applied Klein and held that the commentator's statement was not a publication or republication of the libel.
[47](1952) 117 NYS 2d 520.
Closer in time and fact is Carter v BC Federation of Foster Parents Association[48], where mention was made in a printed newsletter of the internet address of an internet forum which contained defamatory comments. The Court of Appeal of British Columbia, adopting Klein and MacFadden, held[49] that a reference to an article which does not repeat the defamatory comment itself is not a republication of it.
[48](2005) 257 DLR (4th) 133.
[49]Carter v BC Federation of Foster Parents Association (2005) 257 DLR (4th) 133 at 140 [12].
These cases were referred to with approval by Abella J in Crookes v Newton[50], a decision of the Supreme Court of Canada. Mr Newton operated a website which contained commentary on issues such as free speech. One of the articles he posted on the website contained hyperlinks to other websites which contained information about Mr Crookes that were said to include matters defamatory of him. In his action brought against Mr Newton, Mr Crookes alleged that by providing the hyperlinks Mr Newton was publishing the defamatory matter.
[50][2011] 3 SCR 269.
The starting point for the analysis undertaken by Abella J (with whom Binnie, LeBel, Charron, Rothstein and Cromwell JJ concurred and McLachlin CJ and Fish J substantially agreed) was the statement of the rule that a defendant who, by any act, conveys defamatory meaning is a publisher[51] and an acknowledgment of the breadth of actions which fall within this traditional publication rule[52]. This accords with Australian case law, as does the observation by Deschamps J[53] that publication has a bilateral nature.
[51]Crookes v Newton [2011] 3 SCR 269 at 281 [16].
[52]Crookes v Newton [2011] 3 SCR 269 at 281-282 [18].
[53]Crookes v Newton [2011] 3 SCR 269 at 298 [62].
It needs to be said at the outset that there are aspects of the reasons of Abella J which, in our view, either cannot or should not be followed by this Court. In the former category are factors such as the public interest in protecting freedom of expression[54] and other values drawn from the Canadian Charter of Rights and Freedoms[55]. In the latter are policy considerations such as the benefits to be gained from the dissemination of information over the Internet[56]. It is preferable to apply settled principles regarding publication to a situation presented by new technology. The result is that internet search engine results that are not themselves defamatory do not come within the purview of publication and it is not necessary to consider whether those principles should be adapted. In any event, it is clear that Abella J made reference to these other factors and considerations as confirming the correctness of her Honour's essential reasoning. That reasoning is compelling.
[54]Crookes v Newton [2011] 3 SCR 269 at 287 [31].
[55]Crookes v Newton [2011] 3 SCR 269 at 287 [32]-[33].
[56]Crookes v Newton [2011] 3 SCR 269 at 288-289 [34]-[36].
In her Honour's view, hyperlinks "are, in essence, references"[57]. A hyperlink provides a reference to another source and does not itself constitute publication of it[58]. Although the link may facilitate the transfer of information, which her Honour accepted was a hallmark of publication, it is equally clear that when a person follows a link, they are leaving one source and moving to another. "The ease with which the referenced content can be accessed does not change the fact that, by hyperlinking, an individual is referring the reader to other content."[59]
[57]Crookes v Newton [2011] 3 SCR 269 at 285 [27].
[58]Crookes v Newton [2011] 3 SCR 269 at 284 [22]-[25].
[59]Crookes v Newton [2011] 3 SCR 269 at 286 [29].
Hyperlinks thus have the same relationship to the content to which they link as do references, her Honour observed. Both communicate that something exists but do not by themselves communicate its content. Both require an act on the part of a third party before access is gained to the content. The fact that accessing the content is made far easier with hyperlinks does not alter the fact that a hyperlink, by itself (and as distinct from a search result in which the link is embedded), is "content‑neutral"[60].
[60]Crookes v Newton [2011] 3 SCR 269 at 286 [30].
McLachlin CJ and Fish J agreed in large part with the reasons of Abella J[61], but held[62] that a hyperlink will constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content to which it links. A mere reference without endorsement or adoption remains content‑neutral; but where the specific content is endorsed or adopted the reference can be understood to actually incorporate the defamatory content[63].
[61]Crookes v Newton [2011] 3 SCR 269 at 293 [46].
[62]Crookes v Newton [2011] 3 SCR 269 at 294 [50].
[63]Crookes v Newton [2011] 3 SCR 269 at 294-295 [51].
It will be recalled that the Court of Appeal in this case adopted the possibility of defamatory matter being published by way of incorporation by reference into a search result. In our view, this suffers from two difficulties. The first is that whereas incorporation by reference clearly has a place in contract law[64] and other areas of law, such as patent law and the law relating to wills, it can have no place in the law of defamation, which requires that the defamatory meaning be conveyed for publication to be complete. The second is that in any event it is unnecessary. Cases such as Webb v Bloch show that the rules of publication apply where a person endorses, adopts or otherwise approves of defamatory matter which is to be published.
[64]See Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 228-229; see also Deaves v CML Fire and General Insurance Co Ltd (1979) 143 CLR 24 at 65.
Deschamps J favoured a more nuanced approach[65], which requires consideration of factors such as whether the hyperlinks are "deep" or "shallow"[66] and how they operate. This approach was not pursued by the respondent in this case and such factors were not the subject of findings by the trial judge.
[65]Crookes v Newton [2011] 3 SCR 269 at 298-299 [62].
[66]Crookes v Newton [2011] 3 SCR 269 at 299-300 [64]; see Collins, The Law of Defamation and the Internet, 3rd ed (2010) at [2.43].
Publication?
It is not suggested that the appellant itself communicated the defamatory matter in the Underworld article, which appeared on The Age's website. Unlike the defendants in the innocent dissemination cases, the appellant did not do so by selling, distributing or otherwise disseminating the matter complained of. More relevant to this appeal, and by way of contrast with the circumstances of the defendants in those cases, is the hypothetical example of a person from whom directions are sought as to where a periodical might be obtained from a retail outlet. If that person gives directions or even escorts the enquirer to the place of sale, it could hardly be suggested that the person has communicated defamatory matter contained in the periodical. Nor could those actions be said to involve participation in the communication of such defamatory matter.

The publication of the defamatory matter here is best understood as occurring by the communication of the article on The Age's webpage to persons accessing the webpage. The questions raised by Webb v Bloch, Trkulja and Voller are whether the appellant could be said to have participated in the communication of the matter contained in the Underworld article or to have been instrumental in, or have contributed to any extent to, the publication of that matter. The phrases in question imply some connection on the part of a defendant's conduct with the acts which constitute publication of the defamatory matter. They do not suggest something which occurs that is physically remote from the acts constituting publication of the defamatory matter, and thus distinct from it. The observation of Abella J in Crookes v Newton[67], that by using a hyperlink a person moves from one webpage to another, serves to highlight that remoteness here.
[67][2011] 3 SCR 269 at 286 [29].
It cannot be said that the appellant was involved in the communication of the defamatory material by reference to the circumstances in Webb v Bloch and Voller. It did not approve the writing of defamatory matter for the purpose of publication. It did not contribute to any extent to the publication of the Underworld article on The Age's webpage. It did not provide a forum or place where it could be communicated, nor did it encourage the writing of comment in response to the article which was likely to contain defamatory matter. Contrary to the finding of the trial judge, the appellant was not instrumental in communicating the Underworld article. It assisted persons searching the Web to find certain information and to access it.
As the trial judge found, navigating the Web can be a challenge. Search engines assist in that process. But the analogy drawn by her Honour between a search result and a librarian handing over to a library user a book marked at a particular page is problematic, not the least because a search result is only one of a number of responses to an enquiry, as was the case here. Properly understood, a search result conveys to the person searching that they may be interested in one or more of the results. The person is not directed to a particular result, as the Court of Appeal implied. According to the trial judge's findings, results are ranked by the use of an algorithm having regard to relevance using "signals" or clues as to what the person searching is looking for according to the words used in their enquiry. The search result merely refers, in the sense of drawing attention, to a webpage. As Abella J pointed out in Crookes v Newton[68], there is a difference between drawing a person's attention to the existence of an article and communicating its content. And whilst it may be said that the use of a hyperlink may mean The Age gains a reader, that does not make the appellant something other than a reference provider.
[68][2011] 3 SCR 269 at 286 [30].
The respondent submitted that the Search Result had the added feature, to which the Court of Appeal referred, that by its terms it "enticed" the person searching to open the webpage. It is difficult to see how this level of excitement could be said to be generated by the words of the Search Result. Moreover, it needs to be borne in mind that the person has already activated a search for particular information before the result is received. As is the case with any search result, a person will employ the hyperlink if they think the webpage to which they are directed may provide the information they seek. It is notable that the respondent also submitted that the decisions of the New York courts should also be seen as involving "enticement". In doing so the respondent appears to equate "entice" with "call attention to".
As mentioned above, in Crookes v Newton Abella J pointed out that when a person chooses to click on the hyperlink, they leave the search result and go to a different webpage[69]. In the course of argument on this appeal, another example was given of how a person might be referred or directed to another webpage that may contain defamatory material. A person might give to another the text and symbols that constitute the URL address for a webpage. It could hardly be suggested that, without more, the provision of a URL address is participation in the communication of defamatory matter which happens to be at that address. Yet the provision of a hyperlink involves little more. In reality, a hyperlink is merely a tool which enables a person to navigate to another webpage.
[69][2011] 3 SCR 269 at 286 [29].
The question of whether the appellant could be said to participate comes down to the assistance provided by the hyperlink to move to another webpage. This is not a strong basis for liability and it finds no support in existing authority in Australia or recent cases elsewhere. As observed in Crookes v Newton, a hyperlink is content‑neutral. A search result is fundamentally a reference to something, somewhere else. Facilitating a person's access to the contents of another's webpage is not participating in the bilateral process of communicating its contents to that person. To hold that the provision of a hyperlink made the appellant a participant in the communication of the Underworld article would expand the principles relating to publication.
The aim or purpose of the appellant in making information universally accessible[70] should not be confused with whether it is motivated to and does produce income by providing hyperlinks, conducting a business in that sense. Neither factor is relevant to whether there is a publication. That question focuses upon what the appellant in fact does.
[70]Defteros v Google LLC [2020] VSC 219 at [54], [184], [186].
For completeness, it should be noted that the respondent submitted that when notice was given to the appellant, as the internet search engine operator, that The Age's webpage contained defamatory material, the appellant's failure to remove the reference was relevant to the question of publication. The submission assumes that the appellant was a publisher, which, for the reasons given above, is not the case. It is also incorrect in principle to employ notification in connection with publication. Notice of the existence of defamatory matter may be relevant to knowledge in the defence of innocent dissemination, but it is not relevant to the question whether defamatory material is published. The submission bespeaks some notion of duty on the part of the appellant to the respondent which is breached.
Orders
The following orders should be made:
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.
GAGELER J. Whether someone is a publisher of defamatory matter communicated by means of the Internet is determined in the application of the standard common law principles expounded by the majority in Fairfax Media Publications Pty Ltd v Voller[71] by reference to Webb v Bloch[72] (as reconfirmed in Trkulja v Google LLC[73]) and Dow Jones & Co Inc v Gutnick[74].
[71](2021) 95 ALJR 767; 392 ALR 540.
[72](1928) 41 CLR 331.
[73](2018) 263 CLR 149.
[74](2002) 210 CLR 575.
Those standard common law principles posit that publication is a process which includes making matter available for comprehension by a third party (relevantly by including the matter on a webpage) and which is completed upon the third party having that matter available for comprehension (relevantly by viewing the webpage)[75]. Those principles further posit that a publisher is anyone who is an active and voluntary participant in any part of that process of publication[76].
[75]Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767 at 774 [23], 779 [61]; 392 ALR 540 at 546, 553.
[76]Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767 at 775 [32], 780 [66]; 392 ALR 540 at 548, 554.
Applying those principles, I agree with the conclusion reached by Kiefel CJ and Gleeson J that Google LLC was not a publisher of the defamatory matter contained in the article on a webpage on The Age website in the publication that occurred each time a third party who had entered "George Defteros" into the Google search engine clicked on the hyperlink in one of the search results so as to be connected to The Age website, where the article could be viewed. I also agree with the reasons given by Kiefel CJ and Gleeson J for reaching that conclusion.
Mindful that other members of this Court reach the opposite conclusion adhering to the same common law principles, I add the following observations.
The majority in Voller[77] drew attention to the consistency of the common law principles there expounded with the common law principles expounded by the Supreme Court of Canada in Crookes v Newton[78]. Despite calling attention to the fact that "the breadth of activity captured by the traditional publication rule is vast"[79], Abella J (with whom five other Justices concurred) in Crookes applied those common law principles to conclude that a "mere" hyperlink constitutes no more than a "reference" to the existence and location of a webpage where matter can be viewed as distinct from a publication of the matter contained on that webpage[80]. Abella J reasoned to that conclusion taking the view that a hyperlink by itself communicates that something exists, but does not communicate its content and, in that way, is "content-neutral"[81].
[77](2021) 95 ALJR 767 at 775 [31], 781 [70], 785 [90], 786 [95]; 392 ALR 540 at 548, 555, 560-561, 562.
[78][2011] 3 SCR 269.
[79][2011] 3 SCR 269 at 281-282 [18].
[80][2011] 3 SCR 269 at 284-287 [22]-[33].
[81][2011] 3 SCR 269 at 286 [30].
That reasoning of Abella J in Crookes involved application to a hyperlink of the general understanding that to provide to a third party a reference to the location at which matter on a designated topic is available to be found does not at common law, without more, amount to publication of that matter to that third party. That understanding is not contradicted by anything in the reasoning of the majority in Voller and, as noted by Kiefel CJ and Gleeson J, is directly supported by the earlier New York[82] case law analysed in Crookes. I cannot read the New York cases as having turned on the application of the "single publication rule" considered and rejected in Gutnick[83]. Publication was emphasised in Voller to be a technical concept and was implicitly accepted in Voller to be used in no different sense in the common law of Australia from the sense in which it is used in the common law of New York[84]. In that light, I read the New York cases analysed in Crookes as illustrations of a category of conduct – neutral referencing – that has been recognised not to amount to participation in a process of publication.
[82]Klein v Biben (1946) 296 NY 638; MacFadden v Anthony (1952) 117 NYS 2d 520. See also Carter v BC Federation of Foster Parents Assn (2005) 257 DLR (4th) 133.
[83](2002) 210 CLR 575 at 600-601 [27]-[28], 601-602 [29]-[31], 604 [36].
[84](2021) 95 ALJR 767 at 779 [60], 781 [71]; 392 ALR 540 at 553, 555-556.
The conclusion in Crookes, that a mere hyperlink is to be characterised as neutral referencing, and therefore does not amount to participation in the process of publication of the matter to a third party who clicks on the hyperlink, is by no means incontestable[85]. Of its nature, a hyperlink goes beyond merely indicating the existence and location of a webpage in that it also facilitates immediate access to that webpage. More than just indicating the location on the Internet where referenced matter is to be found, the hyperlink provides a shortcut to that location.
[85]See the criticism in Parkes and Busuttil (eds), Gatley on Libel and Slander, 13th ed (2022) at 201-204 [7-013] and 253-254 [7-050].
That being so, the circumstance that the conclusion in Crookes has been reached in the outworking of materially identical common law principles and has stood for more than a decade in Canada counts in favour of that conclusion being accepted and assimilated into the outworking of the applicable common law principles in Australia. To repeat a point made in Voller[86], with reference to Crookes, "given that a strength of common law reasoning lies in its ability to assimilate and build upon collective experience, when grappling with the application of common law principles of tortious liability inherited from a common source to meet common challenges presented by emerging global phenomena, 'convergence … is preferable to divergence even if harmonisation is beyond reach'".
[86](2021) 95 ALJR 767 at 785 [90]; 392 ALR 540 at 561, quoting Paciocco v Australia & New Zealand Banking Group Ltd (2016) 258 CLR 525 at 540 [10].
The ubiquity of the Internet and the centrality of hyperlinks to its operation make consistency in the characterisation of a hyperlink across common law jurisdictions especially desirable. As described by Matthew Collins[87], in language partially quoted by Abella J in Crookes[88]:
"Hyperlinks are the synapses connecting different parts of the world wide web. Without hyperlinks, the web would be like a library without a catalogue: full of information, but with no sure means of finding it. Almost every web page contains hyperlinked information, so that content is endlessly connected to other content."
[87]Collins, The Law of Defamation and the Internet, 3rd ed (2010) at 85 [5.42]. See also Magyar Jeti Zrt v Hungary (2019) 69 EHRR 3 at 125-126 [OI-4].
[88][2011] 3 SCR 269 at 288 [34].
To accept that the provision of a hyperlink is not enough to amount to participation in the process of publication which is completed when a third party clicks on the hyperlink so as to view the webpage, however, is not to deny that the provision of a hyperlink might combine with other factors to amount to participation in that process of publication of matter on that other webpage. The late 19th century decision of the English Court of Appeal in Hird v Wood[89] – treating as a publisher a man who sat on a stool smoking a pipe and continuously pointing to a placard so as to attract the attention of passers-by to the writing on the placard – illustrates that the taking of action which draws the attention of a third party to the availability of matter in a manner which has the effect of enticing or encouraging the third party to take some step which results in that matter becoming available for his or her comprehension can be sufficient to amount to participation in publication of that matter. The question whether particular action amounts to enticement or encouragement of that nature is appropriately described as one of "fact and degree"[90].
[89](1894) 38 Sol J 234.
[90]Parkes and Busuttil (eds), Gatley on Libel and Slander, 13th ed (2022) at 253-254 [7-050]. See also at 199-201 [7-012].
Thus, in Google Inc v Duffy[91] with reference to Hird v Wood, the content of the snippet component of several Google search results was said to have been such as to "entice" a third party to click on the hyperlink in those search results to obtain more information. That was because the snippet component "naturally invite[d] the reader to click on the hyperlink for explanation and elaboration" of the matter[92], such as to be aptly described as "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'"[93].
[91](2017) 129 SASR 304 at 467 [599].
[92]Duffy v Google Inc (2015) 125 SASR 437 at 500 [227]-[229].
[93](2017) 129 SASR 304 at 356 [173].
Although aspects of the reasoning in Duffy are capable of being interpreted more broadly, the outcome in Duffy is best understood as having turned on the particular content of the snippet component of the search result in that case. The outcome in Duffy cannot be generalised to the extent of indicating that the combination of elements of a search result will always, or even generally, operate to direct, entice or encourage a third party conducting a Google search to click on the hyperlink component for further information.
The search result in the present case was not of a kind described in Google Inc v Australian Competition and Consumer Commission[94] as a "sponsored link", which is "a form of advertisement created by, or at the direction of, advertisers willing to pay Google for advertising text which directs users to a web site of the advertiser's choosing"[95]. The plurality in that case observed in respect of a sponsored link that "Google is not relevantly different from other intermediaries, such as newspaper publishers (whether in print or online) or broadcasters (whether radio, television or online), who publish ... the advertisements of others"[96].
[94](2013) 249 CLR 435 at 442 [3], 447-448 [18]-[24]. See also Trkulja v Google LLC (2018) 263 CLR 149 at 170-171 [58]-[59].
[95](2013) 249 CLR 435 at 442 [3].
[96](2013) 249 CLR 435 at 459 [69].
Like the search result in Duffy[97], the search result in the present case was rather of a kind described in Google Inc v Australian Competition and Consumer Commission[98] as an "organic search result". That terminology was not used by the primary judge in the present case but can be taken as a shorthand description of the results that are generated from the operation of the ranking algorithm of the Google search engine, which her Honour described as using "various 'signals' or clues to identify what results the user is most likely looking for"[99].
[97](2017) 129 SASR 304 at 368 [216].
[98](2013) 249 CLR 435 at 447-448 [18]-[24]. See also Trkulja v Google LLC (2018) 263 CLR 149 at 170-171 [58]-[59].
[99]Defteros v Google LLC [2020] VSC 219 at [29].
Unlike the position in Duffy, no feature of the content of the particular organic search result in the present case has been found to have operated as an enticement or encouragement to click on the hyperlink.
The conclusion of the primary judge that Google was a publisher, which was upheld by the Court of Appeal, was instead based on the broad proposition – necessarily applicable to the results of all Google searches – that the inclusion of a hyperlink in a search result is enough for the provision of the search result to amount to active and voluntary participation by Google in the process by which the matter referenced in the hyperlink is published to a user of the Google search engine. Her Honour said that "provision of a hyperlinked search result is instrumental to the communication of the content of the webpage to the user", that "[t]he 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", and that "[t]he 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"[100]. I cannot accept a proposition of that breadth.
[100]Defteros v Google LLC [2020] VSC 219 at [54]-[55].
That Google's mission is "to organise the world's information and make it universally accessible and useful" by "connecting users to information on the internet that is relevant to their query and is of high quality"[101], that it "has a commercial interest in providing a quality service with responsive search results"[102], that the web crawler and indexing programs of its search engine are continuously in operation[103], and that the ranking algorithm of its search engine operates to identify and display those results ranked by relevance to identify what the searcher "is most likely looking for"[104], do not alone or in combination affect what I consider to be the critical feature of an organic search result. The critical feature is that the search result is no more than a designedly helpful answer to a user-initiated inquiry as to the existence and location of information on the Internet.
[101]Defteros v Google LLC [2020] VSC 219 at [184].
[102]Defteros v Google LLC [2020] VSC 219 at [187].
[103]Defteros v Google LLC [2020] VSC 219 at [27]-[28].
[104]Defteros v Google LLC [2020] VSC 219 at [29].

By entering a search term into the Google search engine, the searcher looks for matter on a topic of interest to the searcher. By providing a search result, Google indicates where on the Internet that matter may be found. The hyperlink in the search result identifies the webpage on which matter on that topic is located. The hyperlink in the search result – no differently from any other hyperlink – also provides a shortcut which facilitates immediate access to the webpage should the searcher choose to take the further step of clicking on it. Having obtained the search result, including the hyperlink and the snippet, it is then up to the searcher to decide whether or not to take that further step of clicking on the hyperlink so as to access the webpage. Google does not, merely by providing the search result in a form which includes the hyperlink, direct, entice or encourage the searcher to click on the hyperlink.
I agree with the orders proposed by Kiefel CJ and Gleeson J.
KEANE J. I agree with Gordon J that Google's appeal should fail. In particular, I agree with her Honour that Google published the material defamatory of Mr Defteros ("the Underworld article"), as the courts below found. I also agree that the common law and statutory defences of innocent dissemination and qualified privilege are not available to Google in this case for the reasons given by the courts below. I write separately to explain my conclusion that Google published the Underworld article. Because mine is a dissenting judgment, I will be brief.
Google provided search results in response to users' search queries. Those search results directed its users to The Age's webpage containing the Underworld article. Through the hyperlinks provided by Google, users were thereby enabled to have direct and nearly instantaneous access to the Underworld article. All this occurred as Google intended by the operation of its search engine in accordance with its design and in the ordinary conduct of Google's business. Google thereby participated in the publication of the Underworld article to a user of its search engine for the purposes of the law of defamation in Australia. My conclusion in this regard is founded upon the primary judge's unchallenged findings of fact in relation to the design and operation of Google's search engine. To those findings I now turn.
Google's search engine
Google's search engine is an automated information retrieval system which allows a user to navigate the vast amount of information available on the World Wide Web through user‑designed search queries or terms[105]. Google states that its mission, in providing this service, is "to organise the world's information and make it universally accessible and useful" by connecting users to information on the Internet that is relevant to their query and is of high quality[106].
[105]Defteros v Google LLC [2020] VSC 219 at [25].
[106]Defteros v Google LLC [2020] VSC 219 at [54], [184], [186].
Each webpage of the World Wide Web has a unique Uniform Resource Locator ("URL"), which acts as the address for that webpage. Webpages are created, most commonly, with a code called HyperText Markup Language ("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, which are HTML code that contains a URL for another webpage. Clicking on a hyperlink will take a user from one webpage to that other webpage. Unless a user knows the precise URL for a webpage, he or she must find and access the webpage by some other means, most commonly, a search engine[107].
[107]Defteros v Google LLC [2020] VSC 219 at [21]‑[25].
Google's search engine uses computer algorithms to make predictions about what webpages are most likely to be of interest to a user, based on the terms of the user's search query. Its search engine responds to a query from a user by first identifying what information is available on the Web, using a fully automated Web crawler program. That program determines which webpages to crawl and how often, as well as what type of information is collected; if a webpage is ranked as more important, it will be "crawled" more often[108].
[108]Defteros v Google LLC [2020] VSC 219 at [26]‑[27].
Next, the Google search engine uses an indexing program to organise the data obtained by the Web crawler program into a form that is more easily searched by computer algorithms. The program creates an index, listing every webpage that contains each word found during the crawling stage, as well as other information such as whether the page comprises text, images or video and whether it appears to be a news article[109].
[109]Defteros v Google LLC [2020] VSC 219 at [28].
When a user enters a search query, the words from the query are evaluated by a series of algorithms against the information in the index, as it is at that point in time. A webpage's relevance is evaluated by reference to "signals" or clues as to what the user may be looking for, such as the number of times one or more of the user's search terms appears on the webpage, how recently the content of that webpage was published or updated, the location of the user, and the user's previous search history[110].
[110]Defteros v Google LLC [2020] VSC 219 at [29].
A search result is then presented – almost instantaneously – to the user comprising a list of webpages, ranked according to relevance as determined by the ranking algorithm. Generally, for each webpage, a user is shown the title of the webpage with the search terms in bold, a "snippet" of the content of the webpage and a shortened form of its URL. The title operates as a hyperlink, which the user can click on to be taken to the webpage[111].
[111]Defteros v Google LLC [2020] VSC 219 at [30], [32].
Google's search engine also allows users to search for images, which are displayed to the user in search results as a series of "thumbnails". Each thumbnail contains a hyperlink to an interstitial page which provides more information about the image. Clicking on the interstitial page takes the user to the webpage whence the image originated[112].
[112]Defteros v Google LLC [2020] VSC 219 at [31].
Google's search engine, and its component programs, are both designed by humans. They operate as they are intended to do in accordance with that design. That is so, even though the component processes of a Google search are fully automated and completed without human intervention. Further, while the Google search engine is not capable of evaluating the meanings conveyed by the words or images displayed on a webpage, including whether they are true, false or defamatory, human intervention can, and does, occur at the point of Google's "legal removal" process. This process may alter the results that are shown to a user. In accordance with its various policies, Google may choose to remove a webpage, identified by its URL, from the search results that are returned by the Google search engine. This process does not remove the webpage from the Web; a user may still access it, for example, by using another search engine, or directly via the URL[113].
[113]Defteros v Google LLC [2020] VSC 219 at [33]‑[34], [40], [188].
The publication rule
A cause of action for defamation arises when a person suffers harm by way of damage to his or her reputation by the publication of defamatory matter to a third party[114]. As was said by Kiefel CJ, Keane and Gleeson JJ in Fairfax Media Publications Pty Ltd v Voller[115], "[p]ublication is the actionable wrong".
[114]Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767 at 774 [23], 779 [60]‑[61]; 392 ALR 540 at 546, 553.
[115](2021) 95 ALJR 767 at 774 [23]; 392 ALR 540 at 546.
It has long been the law in Australia that each publication to a third party is actionable as a separate tort[116]. It has also long been the law that while publication must be intentional, a broad view has been taken of the intentional acts that will constitute publication. In Webb v Bloch[117] Isaacs J said:
"The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he [or she] has intentionally lent his [or her] assistance to its existence for the purpose of being published, his [or her] instrumentality is evidence to show a publication by him [or her]."
[116]Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 600‑601 [26]‑[27].
[117](1928) 41 CLR 331 at 363‑364, quoting Folkard, The Law of Slander and Libel, 5th ed (1891) at 439 (second and third emphasis added by Isaacs J). See also Trkulja v Google LLC (2018) 263 CLR 149 at 164‑165 [40].
Similarly, in the words of Ribeiro PJ, in the Court of Final Appeal of Hong Kong in Oriental Press Group Ltd v Fevaworks Solutions Ltd[118]:
"A person was held liable for publishing a libel if by an act of any description, he [or she] could be said to have intentionally assisted in the process of conveying the words bearing the defamatory meaning to a third party, regardless of whether he [or she] knew that the article in question contained those words."
This inclusive view of what amounts to publication was affirmed by this Court's decision in Voller[119].
[118](2013) 16 HKCFAR 366 at 377 [19], citing Vizetelly v Mudie's Select Library Ltd [1900] 2 QB 170 at 179; Godfrey v Demon Internet Ltd [2001] QB 201 at 207; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 600 [25]. See also R v Clerk (1728) 1 Barn KB 304 [94 ER 207].
[119](2021) 95 ALJR 767 at 774‑775 [24]‑[31], 779‑780 [61]‑[68]; 392 ALR 540 at 546‑548, 553‑554.
In Crookes v Newton[120], the Supreme Court of Canada held that the provision of hyperlinks by the defendant in that case did not, without more, constitute publication by the defendant of the content on the webpage that appeared in the hyperlink, even if the hyperlink was followed and the defamatory content accessed. Abella J (with whom Binnie, LeBel, Charron, Rothstein and Cromwell JJ agreed) said[121]:
"A reference to other content is fundamentally different from other acts involved in publication. Referencing on its own does not involve exerting control over the content. Communicating something is very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not ...
Hyperlinks are, in essence, references. By clicking on the link, readers are directed to other sources ...
The ease with which the referenced content can be accessed does not change the fact that, by hyperlinking, an individual is referring the reader to other content."
[120][2011] 3 SCR 269. See esp at 292‑293 [44].
[121]Crookes v Newton [2011] 3 SCR 269 at 285‑286 [26]‑[29] (emphasis in original).
The defendant in Crookes v Newton was not the operator of a search engine like Google; he owned a website, on which he posted an article with the impugned hyperlinks. Nevertheless, these observations by Abella J were cited to support Google's position in this Court. These observations were not directed to, and do not recognise, the nature and extent of Google's involvement in bringing a user of its search engine and a communication by another person (a "primary publisher") together.
The primary judge's findings establish that Google's search engine generates results ranked in a specific order through the use of Google's confidential and proprietary algorithms and methodology as the intended response to a query by Google's users. Success for Google in its business of operating its search engine consists of its users clicking on a hyperlink because they are satisfied with Google's response. This is as Google intends. To satisfy its users, Google ensures that its search engine is constantly learning from the large volumes of query data that it accumulates and processes: over 100 billion searches are made by its users every month, and of those more than 500 million each day have never been made before[122]. A user's history of queries can provide useful information about his or her probable intentions[123].
[122]Defteros v Google LLC [2020] VSC 219 at [32].
[123]Equustek Solutions Inc v Jack (2014) 374 DLR (4th) 537 at 555 [48].
In addition, Google's argument based on the reference to the passage from Crookes v Newton excerpted above pays little regard to the bilateral nature of publication, a consideration of significance in Australian law.
The bilateral nature of publication
In Dow Jones & Co Inc v Gutnick[124], Gleeson CJ, McHugh, Gummow and Hayne JJ said:
"Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act – in which the publisher makes it available and a third party has it available for his or her comprehension.
The bilateral nature of publication underpins the long‑established common law rule that every communication of defamatory matter founds a separate cause of action[125]."
[124](2002) 210 CLR 575 at 600 [26]‑[27].
[125]Duke of Brunswick v Harmer (1849) 14 QB 185 [117 ER 75]; McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513 at 519‑520, 528.
In Voller, Kiefel CJ, Keane and Gleeson JJ adopted this statement of principle as a correct statement of the law relating to publication for the purposes of the law of defamation[126]. So did Gageler and Gordon JJ, who went on to say[127]:
"Publication of matter by means of the Internet is accordingly complete when and where the matter is accessed by a third party in a comprehensible form."
[126](2021) 95 ALJR 767 at 774 [23]; 392 ALR 540 at 546.
[127](2021) 95 ALJR 767 at 779 [61]; 392 ALR 540 at 553.
In this Court, it was argued on Google's behalf that a person whose participation in the process of communicating defamatory matter to a third party consists of assistance to the reader, rather than to the primary publisher, is not relevantly a publisher. It was said that to characterise the activity of a person who aids a reader in having access to the defamatory writing as participation in publication of the writing would be an absurd extension of prima facie liability for defamation. In light of Dow Jones v Gutnick, it cannot sensibly be denied that a person who aids another to comprehend defamatory matter does participate in the publication of that matter to that person. There is nothing novel in this: a person who reads a defamatory writing to a blind or illiterate person publishes that writing[128], just as a person who reads a newspaper article aloud over the radio publishes the article[129].
[128]Allen v Wortham (1890) 13 SW 73; Lyon v Lash (1906) 88 P 262; Lane v Schilling (1929) 279 P 267.
[129]Weglein v Golder (1935) 177 A 47.
It has never been suggested in the authorities that a defendant in such a situation has not published a statement to a third party because that statement was originally published by another potential defendant[130]. Nor has it been suggested in the authorities that the circumstance that a defendant has published a defamatory statement to a third party at the third party's request precludes a finding of publication by the defendant. Whether the publication of a statement defamatory of a third party has been made in response to a request for information may be relevant to whether the publication has occurred on an occasion of qualified privilege[131], but that this is so only confirms that, being a circumstance relevant to a matter of defence, it is not such as to negative the element of publication essential to the existence of prima facie liability for defamation.
[130]cf Ronald v Harper (1910) 11 CLR 63; "Truth" (NZ) Ltd v Holloway [1960] 1 WLR 997; Lewis v Daily Telegraph Ltd [1964] AC 234 at 283‑284; Goldsmith v Sperrings Ltd [1977] 1 WLR 478; [1977] 2 All ER 566; John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; 201 ALR 77.
[131]Howe v Lees (1910) 11 CLR 361; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 at 378 [25]; Papaconstuntinos v Holmes à Court (2012) 249 CLR 534 at 551 [38].
To characterise Google's role in the publication of the Underworld article to a user of its search engine as assistance to the user which was, therefore, not assistance to The Age as the primary publisher involves several errors. The first is the fallacy of the excluded middle, the logical error that assistance to the user cannot be of assistance to The Age as well. The Age's interest as a news media publication is, after all, to reach a wide readership, and, like Google, it is indifferent as to the identity of those readers.
The second error in this aspect of Google's argument lies in its downplaying, or indeed denial, of the significance of the circumstances in which Google brings its users and The Age together. The publication of defamatory material, which occurred when a user of Google's search engine gained access to the Underworld article, occurred by reason of the assistance intentionally provided by Google in the course of its business. That publication would not have occurred but for Google's facilitation (save for the rare case where a person may directly access a webpage by its URL). No doubt, to say this is not sufficient reason to provide an affirmative answer to the question whether Google intentionally facilitated the publication. But to say that Google was simply "assisting the publishee", as counsel for Google submitted, is to fail to appreciate the nature and extent of Google's participation in that exercise. The design of Google's search engine includes the presentation of search results by way of hyperlinks which are apt to, and which are meant to, afford near‑instantaneous access to the one or more webpages which Google indicates answer a user's query. The ease and immediacy of that access are integral to Google's business. That differentiates Google, both from the owner of a telephone network which passively conveys statements being made by others via its cable lines, and from a publisher on the Internet who inserts hyperlinks into his or her own content as references to another text.
This case is not like Crookes v Newton, where the defendant's hyperlinks were in the nature of footnotes to his article[132] which, so far as his work was concerned, readers might or might not click on, that being a matter of indifference to him. It is not a matter of indifference to Google that the user chooses to click on a hyperlink. That the user should make that choice is the essence of Google's business, which, as it says itself[133], is "to organise the world's information and make it universally accessible and useful" by connecting users to information on the Internet that is relevant to their query.
[132]Crookes v Newton [2011] 3 SCR 269 at 279 [11]‑[12].
[133]See [78] above.
Google's search engine cannot be accurately described as a passive instrument by means of which primary publishers convey information. Google's business consists of the automated provision of relevant responses to requests for information and the enabling, by the use of hyperlinks, of near‑instant access to that information at the choice of the user. Google actively ranks those responses by relevance – that is, as was said in argument on Google's behalf, in an algorithmically attempted understanding of the searcher's interest. It may be acknowledged that Google does not contribute to the content of the works which its search engine disseminates, just as it may be acknowledged that Google's search engine facilitates access to those works by opening the way to the primary publisher's webpage; but neither of these facts is inconsistent with the conclusion that Google has intentionally brought the work of the primary publisher to the attention of the user.

Whether it is correct to describe the results produced by the appellant's search engine as merely "references" may be doubted. On the one hand, there is an analogy between an application of the algorithm designed by the appellant to produce search results and the intellectual activity of Mr Newton in posting an article on his website that included hyperlinks to other webpages. On the other hand, Mr Newton was not the owner of a multinational business that deployed a search engine, based upon web crawling, indexing, and the application of algorithms, to expose its users to relevant search results and tailored advertisements. An essential assumption or general expectation of that business must be that, ordinarily, one or more of the hyperlinked search results will be clicked upon, thus causing the communication of material from a third‑party webpage. Whether that assumption or general expectation is sufficient to make the appellant a publisher of those third‑party webpages is addressed below.
Publication of the Underworld article
In 2016, about 150 individuals googled the respondent's name. The appellant's search engine then produced a series of search results, one of which included a hyperlink to, and snippet of, the Underworld article. This search result, including the snippet, did not contain any defamatory material. This case is unlike Duffy. It was submitted by the respondent, nonetheless, that the appellant in 2016 was a publisher of the Underworld article in three distinct ways: the systems employed by the appellant; enticement; and incorporation. Each was broadly based upon a submission that the appellant assisted The Age with a common intention to publish the Underworld article, although the third basis conflated different routes to publication.
The first basis: the systems employed by the appellant
The first contention was that the appellant was the publisher of the Underworld article because of the systems it employs – its web crawler program, indexing program, and ranking algorithm – which were instrumental to the communication of the defamatory matter. This contention adopted the reasons of Beach J and McDonald J in the Trkulja cases, set out above, and was said by this Court in the Trkulja appeal to be "strongly arguable"[422]. It was also the view of the primary judge in this case. This approach rejected any suggestion that the appellant performed a merely passive role when its search engine was used to produce results that included the hyperlink to the Underworld article. The appellant was the great designer; it invented the search engine, it maintained the search engine, and, through its servers, it enabled the search engine to operate. All of these matters were vital to the appellant's business; the appellant needed its search engine to be used to maximise its users' exposure to the advertisements that appeared on its website.
[422]Trkulja v Google LLC (2018) 263 CLR 149 at 163 [38] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ.
It may be accepted that "but for" the appellant's search engine, the defamatory matters in the Underworld article would not have been conveyed to the 150 individuals who viewed it via the Google search results. When the hyperlink to the Underworld article appeared, the search engine was operating in precisely the way its designers intended. But the appellant's role in that conveyance rose no higher than that of mere assistance or facilitation. When the appellant provided a list of search results and snippets through the processes described above, it had no common intention shared with The Age for the publication of the Underworld article any more than it had a common intention shared with those responsible for webpages listed in the many other search results and snippets.
The critical step that results in publication is that of the person searching and clicking on the chosen hyperlink. The role of the appellant rose no higher than a mere facilitator because the appellant had no common intention shared with The Age that the searcher click on the hyperlink to the Underworld article. In that respect, a clear distinction must be maintained between the act of publishing the selection of search results and snippets, which the appellant does, and the act of conveying material on third‑party webpages.
At best, the appellant's business assumes that ordinarily one or more webpages listed in the search results may be visited, but that is a matter entirely reserved for the searcher. Once the results have been published, it is the searcher who decides whether to click on one or more of the hyperlinks. In that respect, it was accepted on the facts of this case that the appellant could not be a publisher of the Underworld article unless and until this took place. It follows that the appellant in no way participated in the vital step of publication without which there could be no communication of defamatory material – namely the searcher's decision to click on the hyperlink of a particular result[423].
[423]Compare Crookes v Newton [2011] 3 SCR 269 at 286 [30] per Abella J.
This appeal therefore does not present the occasion to consider whether the conclusion would be different in respect of those hyperlinks that, by agreement with a third party, are promoted by the appellant following a search request. Nor was any issue raised on this appeal about any service provided in the aggregation of news results. It suffices to say that it is arguable that the appellant and a third party might share a common intention to publish the content of a third‑party webpage that, as a consequence of an agreement between the appellant and the third party, is promoted as a search result.
Of course, the mere fact that a person to whom the communication is made must do some act to receive the defamatory material – even when that act is beyond the control of a putative publisher – does not always preclude a conclusion that the putative publisher assisted the primary publisher with a common design or a common intention to publish. In Vizetelly v Mudie's Select Library Ltd[424], the owners of a "circulating library" circulated or lent out a book called "Emin Pasha: his Life and Work". Volume 1 of this work referred to Mr Vizetelly being "not yet sober". A third party needed to attend the library and select this book for the defamatory comment to be read. The owners of the library were sued by Mr Vizetelly. They said that when they circulated this work, they did not know that it contained defamatory material as their library was too big for them to have read everything in it. They did not employ readers to check the content of the books lent out "because it was cheaper for them to run the risk, i.e., of publishing libels and being sued for those libels"[425]. The owners were found to be publishers of the book. The owners shared a common intention with the primary publishers of the book to disseminate the book and thus communicate its defamatory contents.
[424][1900] 2 QB 170.
[425][1900] 2 QB 170 at 176 per A L Smith LJ.
The Google search engine is distinctly unlike the library in Vizetelly. The appellant does not acquire a finite number of webpages, or some part thereof, and then make them available to be searched. The appellant does not own or control the internet. Unlike the readers who might have been employed in Vizetelly to check for defamatory content, it was not suggested that the appellant has any sensible means of being able to vet the content of every website in the world. And unlike the person who borrowed the book about Emin Pasha, the user of the Google search engine is, from the perspective of the appellant, an entirely unknown, unpredictable, and uncontrollable person searching the internet, which contains trillions of unknowable, unpredictable, and uncontrollable webpages.
If any analogy might be drawn, and again putting to one side the appellant's promotion of various advertised links (which is not in issue in this case), the analogy would be to position the appellant as an extremely knowledgeable guide working for profit in an enormous library, who facilitates a reader's search by providing the reader with a number of very specific pieces of information about where to locate a selection of items in the library and some indication of what they might contain. Importantly, the analogy is entirely inapt unless the appellant is a guide who is not employed by the library, is not a contractor to the library, and shares no interest with the library. The appellant has no common intention with the library or the publishers of books contained in it.
Acceptance of the fact that the appellant carries on a business that encourages individuals to use its website to conduct internet searches does not compel any contrary conclusion. The nature of that business justifies a conclusion that there is an expectation or assumption that one or more hyperlinks in the search results will probably be engaged when a search takes place. But this expectation or assumption does not suffice for an inference that the appellant's act of communicating a link to a third‑party webpage was done with a common design or a common intention shared with the third party.
The appellant is thus not the publisher of those third‑party webpages even though the use of its search engine was important – in a causative sense – to their ultimate publication. The first basis for publication is rejected.
The second basis: enticement
The second way in which it was said that the appellant was the publisher of the Underworld article was that a search result entices a searcher to click on the hyperlink contained within it. Here that conclusion depends upon the search results including, along with the hyperlink and the shortened URL of the Underworld article, the following phrases: "Underworld loses valued friend at court"; "SpecialsGanglandKillings"; and "Pub bouncer‑turned‑criminal lawyer George Defteros always prided himself on being able to avoid a king hit". This contention was accepted by the Court of Appeal.
It may be accepted that, if a search result, by its content, was likely to entice a searcher to choose a given third‑party webpage over others, then an inference might be drawn that the assistance in the search was given with a common intention shared with the third party in the sense of a concerted action to a common end. However, here, even that evidentiary foundation was absent.
Based on the foregoing finding, the words that accompanied the search result simply described a story about a criminal lawyer and his clients, and no more. They indicated what the Underworld article would contain. Of course, for the reasons already given, it may be accepted that the very purpose of the search engine is that it will produce search results that might be accessed by a given user. Depending on what a user is searching for, and why, words that indicate the contents of a given webpage listed in the search results may encourage that person to click on the hyperlink. But this is very far from a basis for a finding of enticement.
The findings in this case about the Google searches of the respondent's name bear this out. The primary judge made detailed findings about seven individuals. Three of these individuals worked at Defteros Lawyers (one of whom was the respondent's wife) and each of them had previously seen the article. The findings do not disclose why they were making these searches. Another individual was the respondent's son; he was prompted by his friends to find the article on the internet. A further individual was a friend of the respondent; he undertook a search to find the respondent's office telephone number. He clicked on the hyperlink to the Underworld article, which he had previously read. Another person had used the respondent in the past as his solicitor. In 2016, he and the respondent discussed "defamatory information on the internet" and the respondent then showed him the search result and the Underworld article. This person later undertook a Google search of the respondent's name, then found the hyperlink to the Underworld article and read it. Why he did this was not the subject of any finding. Finally, another acquaintance of the respondent, whilst searching for the respondent's office telephone number, found the hyperlink to the Underworld article (which he had previously read), clicked on this hyperlink and then read the article (again). Again, no finding was made about why he did this. There was little evidence about the motivations of the other people who clicked through to the Underworld article. The primary judge made a number of unchallenged inferences. Her Honour inferred that a significant number sought out the article in the context of the respondent's complaint to the appellant; some were looking for a lawyer; some were existing clients looking for the contact details of Defteros Lawyers; and a few were considering employment with the firm. Others made searches out of idle interest and curiosity.
Not only is there no basis for a conclusion that the snippet was likely to entice a user to click on the Underworld article, but even if the defamatory imputations in the Underworld article might be said to be enticing, the primary judge made the following finding of fact, which remained unchallenged on appeal[426]:
"There was nothing in the search results themselves that incorporated or drew attention to the defamatory imputations that Mr Defteros alleged were conveyed by the Underworld article". (emphasis added)
[426]Defteros v Google LLC [2020] VSC 219 at [62] per Richards J.
For these reasons, the facts fall well short of supporting a conclusion that the specific words accompanying the hyperlink to the Underworld article were likely to entice individuals to click on it. The second basis for publication is rejected.
The third basis: incorporation
The third basis for publication relied upon the concept of incorporation. In Duffy, where the snippet contained defamatory statements, Kourakis CJ was of the view that this constituted an "incorporation" of that material. His Honour said[427]:
"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."
[427]Google Inc v Duffy (2017) 129 SASR 304 at 356 [173].
It is plain from the foregoing passage that the concept of incorporation that Kourakis CJ had in mind is not limited to the reproduction of defamatory material in a snippet. It would extend to any snippet – that is, words accompanying a hyperlink – that conveys "sufficient information about the contents so as to constitute a publication of the underlying webpage". It was on this basis that the Court of Appeal decided that the Underworld article was "incorporated" by the search result because of the words that accompanied the hyperlink[428]. These words were said to have a "close connection to the parts of the Underworld article dealing with"[429] the respondent and "both directed and encouraged"[430] the reader to click on the hyperlink for further information. By these means, the Google search engine lent "assistance to the publication"[431]. A distinction in that respect was, in effect, drawn between the bare expression of a URL in a hyperlink – said to be the circumstance in Crookes – and the position here.
[428]Defteros v Google LLC [2021] VSCA 167 at [86] per Beach, Kaye and Niall JJA.
[429]Defteros v Google LLC [2021] VSCA 167 at [86] per Beach, Kaye and Niall JJA.
[430]Defteros v Google LLC [2021] VSCA 167 at [87] per Beach, Kaye and Niall JJA.
[431]Defteros v Google LLC [2021] VSCA 167 at [87] per Beach, Kaye and Niall JJA.
With respect, this reasoning confuses three concepts. To the extent that it suggests that the appellant was a publisher by assisting The Age, this is insufficient to establish publication because, for the reasons given above, the appellant's assistance was not given pursuant to a common intention shared with The Age to publish the article. Moreover, for the reasons set out above concerning the issue of enticement, there is no justification for the proposition that the words accompanying the hyperlink either "directed" or "encouraged" the reader to click on the hyperlink.
To the extent that the reasoning suggests that the appellant was a publisher by incorporation of the content of the Underworld article, the conclusion has no factual basis. The appellant's search engine generates a selection of words or phrases or both from a given webpage, which give the searcher some idea of the content of the webpage. The publication of those words or phrases cannot sensibly be equated with publication of the entire contents – that is, every single word, picture or symbol – of the webpage from which those words or phrases have been taken.
To the extent that the reasoning suggests that the appellant was a publisher by ratification or adoption of the Underworld article, there is also no basis for this conclusion. The inclusion of words or phrases accompanying the hyperlink does not, with great respect, evidence or demonstrate an adoption of, or an assumption of responsibility for, the contents of a given webpage – unless some language of adoption or words that show the taking of responsibility are displayed in the search result. No such language or words may be found in the search result for the Underworld article.
Nor was the provision of notice in the form of the inaccurate removal request – which was relied upon by the respondent as an indicium of publication – sufficient to make the appellant a publisher. To so hold would be to introduce concepts of reasonableness and negligence that are foreign to the law of defamation. As senior counsel for the appellant observed on this appeal, although there was some conflation between publication and the defence of innocent dissemination in the courts below[432], the false notice given by the respondent ultimately was relevant only in relation to the defence of innocent dissemination. The third basis for publication is rejected.
[432]Compare Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767 at 782 [74] per Gageler and Gordon JJ, 790‑793 [118]‑[128] per Edelman J; 392 ALR 540 at 556, 567‑571.
The defences
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.