Google LLC v Defteros
[2022] HCATrans 77
[2022] HCATrans 077
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M86 of 2021
B e t w e e n -
GOOGLE LLC
Appellant
and
GEORGE DEFTEROS
Respondent
KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 3 MAY 2022, AT 10.00 AM
Copyright in the High Court of Australia
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MS G.L. SCHOFF, QC and MS C.L. ALDEN, for the appellant. (instructed by Johnson Winter & Slattery)
MR D.P. GILBERTSON, QC: May it please the Court, I appear on behalf of the respondent with MR J.A. CASTELAN and MR E. H. GUTHRIE. (instructed by Defteros Lawyers)
KIEFEL CJ: Yes, Mr Walker.
MR WALKER: May it please your Honours. At the outset we need leave to amend to add what we have called proposed ground 2. We understand it is not opposed.
KIEFEL CJ: If it is not opposed, you have leave to amend.
MR WALKER: If it please the Court. Your Honours have seen from the outline the order in which we propose to address matters and that new ground or that amended ground is the last to which I will turn.
Your Honours, the principal issue arises from activity, relatively recent, in the history of written communication and communication by recorded words and images, with which we are all now familiar by the nomenclature that is commonplace and everyday, thus the notion of a search engine, which we draw to attention as being an immediate and clear demonstration of the tool which is provided by services such as our client provides. Second, the notion of hyperlink, which draws to attention the defining characteristic of what is fairly, if somewhat grandiosely called the World Wide Web, where the word “web” indicates the definition of an essential interconnection.
The next matter, of course, relates to that about which this case turns - the provision, not merely by search engines such as Google, but as a matter of near‑universal usage in terms of locating or identifying – or both – resources to be found on a world wide web, of what is called a hyperlink. As your Honours have seen, we have, in very short compass indeed, in our paragraph 11 of our written submissions, explained – or, at least, described how we use the relevant terms for the purposes of our argument.
So, some hypertext mark‑up language code provides a hyperlink containing a so‑called uniform resource locator – a URL – which, by its uniqueness and designation provides what is called –in the parlance – an address for a web page other than the web page, say, of the search engine.
Thus, it can be seen that the whole purpose and function – and its place in the business model of enterprises such as our client – is to provide for the purposes and interests of so‑called users, who may also be called searchers, a means if they so desire upon receiving a search result from the input of terms that they select from the result that we have returned to them, an array of addresses, other places of other people to supply material beyond that which the hyperlink may convey on its own.
The nomenclature also includes the rather homely but important concept of a snippet, which does convey, colloquially, its essence. It is, in a sense, a sample, though the notion that it is in any overall or statistical sense a true sample of what might be found in a very large resource elsewhere would be pushing it too far, but it is a snippet in the sense that it is fragmented, and as the evidence showed in this case, the fragment is as to its lexical, that is, its semantic content – sometimes its visual content, so‑called thumbnails – the snippet is driven as to that content entirely, and I stress entirely, by the content of another, or others. The machine, the algorithm, works by a relevant proximity test after the algorithm has selected what I might call the scope of relevance answers, or relevant answers to the particular search request.
This is a case which can be simplified in that regard to be the provision of a hyperlink to another site, the site of The Age, among other hyperlinks to other sites, also provided in response to the search request. In this case, it answers the description which, in other arguments about related issues, has attracted the rather conclusory description of a mere reference or a simple reference or a mere hyperlink or a simple hyperlink by which, in particular, we intend in this argument to convey that there is nothing in the lexical or semantic context of the snippet – let alone in the hyperlink, the HTML, the URL itself – which is claimed to be defamatory. This case is not about what I might call defamatory snippets.
It follows, we submit, surely as common ground that in advance of returning a search result, it is clear – because the search is for pre‑existing material – created by others, made available by others – on the internet – it is clear that, in the sense of originating or editing – that is altering or modifying that other material of others, there is nothing that could sensibly called control by Google.
Now, after the event, crudely and, we submit, greatly to the social misfortune were it to occur, there could be control by withdrawing the capacity to assist people in searching by requests which in themselves, of course, will not ordinarily seek out defamatory content.
KIEFEL CJ: Mr Walker, why is control relevant to publication? I know it is mentioned in Crookes v Newton but, in terms of the traditional descriptions of publication here, especially Webb v Bloch, it does not seem to have been elevated to any level of importance.
MR WALKER: The first thing – there are two parts to my answer. The first thing is to recognise, as I hope is clear from our written submissions and I hope will be very clear from what I say, that of course we are not proposing the heresy recently to put down that for persons such as our client some immunity should be made available by sparing them liability in defamation on the ground that they are not aware of – were not the original source of the defamatory matter.
That would be completely contrary to Voller and we make no such endeavour. Control should not be understood in the argument that we are assaying as being in any way, either directly – perish the thought – or tangentially, an attack on the strict liability which includes that the intentionality need not include any component, either as to knowledge or appreciation of defamatory content, so we put that to one side. So, the first part of the answer to the Chief Justice’s question is – well, control certainly cannot have that role in relation to an argument about publication.
But how it does, in our submission, sensibly inform a common law decision – and this is still relevantly common law – is that the participation or involvement or assistance in the bilateral communication, which is the essence of publication for the purposes of the law of defamation, involves, in our submission, a role in what might be called an enterprise - at the moment an expression I am using loosely or generally, not technically – and, in our submission, a mark of where in truth Google has its role in relation to, in this case, the communication of the matter in The Age article by Mr Silvester concerning Mr Defteros can be adjudicated by factors including the observation that Google has no control over that. It was pre‑existing material. Any editing of it will be not for Google, but for The Age.
In our submission, that rather tends to place Google as outside what might be called the settled steps by different people in which the act of communication is finally accomplished or, to put it another way, the fact that Google’s crawling of data on pre‑existing materials, the creation and content of which is beyond its control, rather tends to indicate that Google’s assistance is not to The Age as the source and communicator of the defamation, but is to each and every one of the searchers who used Google’s search engine in relation to Mr Defteros.
In that sense, of course, it makes perfect sense that Google with its offer - which we make no bones about it; we…..as commercially attractive and socially useful – is of comprehensiveness. So the algorithm makes selections by relevance, but not in any sense by editorial control of the content of the material accessed by reason of a response to a user’s search request.
In that sense, the assistance is very markedly, we would submit for the purposes of the legal test that the Court has so recently re‑emphasised in Voller, that that assistance or participation is on the side of the user or searcher that Google lends, rather than the side of all the various owners of websites to which access can be gained by the user - by the user’s choice by hitting a hyperlink selected from the array supplied by a search result.
GLEESON J: Mr Walker, is Google completely agnostic as to what hyperlinks a user will click on?
MR WALKER: I may have missed that last bit just as – no, my hearing, I am sorry, your Honour.
GLEESON J: Is Google agnostic as to what hyperlinks a user will click on?
MR WALKER: Yes, but of course one of the aspects of the service is an attempt to respond with what is called ranking which - I know I am over‑simplifying it – is in order to answer to what might be called relevance, but relevance includes an algorithmically attempted understanding of the searcher’s interest sometimes from past history, of course. So there is a ranking, but within the results – I am sorry, the ranking does not involve “number one is all you need, forget all the rest, which is for decoration on your page to make it look as if we’re busy”. So, yes, it is agnostic in a sense, but the ranking is well understood in the community, we would submit is easily understood in a court as being of positive social amenity, particularly given that not everybody makes what might be called the most subtle search requests and it is for those reasons, in our submission, that truly Google is agnostic.
EDELMAN J: But the number of ranked URLs that are published to the searcher may depend upon nothing more than, for example, the size of the font on the screen or the extent to which the screen accommodates multiple results.
MR WALKER: Yes, that might be called one of those aspects of practicality which bespeaks agnosticism concerning a choice on behalf of the searcher as to what they should do next, if anything. Google’s work is complete when it presents an array of choices for the user. It is not complete only when that then leads to any hyperlink actually being used. It is complete at the point where the choice is offered.
STEWARD J: Mr Walker, do we need to set aside and ignore just for the moment the Google algorithm that produces the ads?
MR WALKER: Yes, I think we do.
STEWARD J: We are not concerned with that at all?
MR WALKER: No. So, your Honour has in mind in particular so‑called promoted ‑ ‑ ‑
STEWARD J: Yes, which is Google’s business.
MR WALKER: Yes, there are two comments I should make. The first is yes, quite emphatically, for the purpose of the legal argument I am making about publisher, it cannot be simply turned to account. That would be another case for the promoted ones - that is the first thing.
GORDON J: I missed what you just said then, Mr Walker.
MR WALKER: For the promoted – I will call them responses ‑ which all users see, some may relish and others mildly resent, they are in a different category because they are, as it were, solicited by a commercial dealing between the advertiser or the person wishing the advertisement to be placed, and Google. So that raises different questions which are not before this Court and we do not have facts about that, that is not this case.
GORDON J: We do know, though, from the findings of Justice Richards the nature of Google’s business ‑ ‑ ‑
MR WALKER: Yes, absolutely.
GORDON J: ‑ ‑ ‑ and in fact you rely upon it because it is set out in quite some detail in your own submissions.
MR WALKER: Your Honour anticipates me. The second part of my answer to Justice Steward was precisely what Justice Gordon has pointed out. I do not want it to be thought by not answering that part of Justice Steward’s question that we disavow any commerciality or business element to what I will call our general search engine offer. Of course, that is commercial. Of course, that is our business. Of course, we have to live in argument with the various approaches which might crudely be boiled down to: this is your business, accept its costs. We challenge that directly for reasons that your Honours have seen in our written submissions. But we do not challenge it as to the premise that this is our business.
It is true that comprehensiveness ‑ and if I might call it subtlety – I do not mean to be an advertiser myself, but at least the refinement by algorithmic search no doubt improved over time and with experience, particularly with the feature of learning about searchers, individual searchers - we do, if you like, boast of that, that is, we say in self‑praise that those are good features, they are clever features, they are why so many people use Google and no doubt there are features akin to that which any search engine which had any success in what is a form of market base would also be pointing to.
So, we do not say of the promoted matters that it is because they are business that they are different from this case. This case is about business too – no question about it. We are not altruists.
GORDON J: Could I ask just one question about that while we are on this topic? In Justice Richards’ judgment – really from paragraphs 20 onwards, and then ultimately leading to a conclusion at 40 – do you take issue with any of those findings?
MR WALKER: I do not think so, your Honour. Unless there is consternation to my left, I think the answer is no.
GORDON J: Thank you.
MR WALKER: The answer is no. Consternation to the left may mean I will have to retract that but, no, there is nothing there we challenge. With respect, as your Honours well know from matters your Honours have already judged, there are levels of generality at which the activities of search engines like Google can be described. For our purposes, we submit that it is at a fairly high level of generality that a case such as the present – which we submit has an attractive typicality to it – can be assessed. By that, I mean, a non‑defamatory return – search result – non‑defamatory in a snippet – and this one is only about words.
KIEFEL CJ: Justice Richards, at paragraphs 54 and 55, appears to identify the participation. We know that Google does not itself unless ‑ ‑ ‑
MR WALKER: Yes.
KIEFEL CJ: ‑ ‑ ‑in the title or the snippet, convey or publish. So, as you identified earlier, the question here is Google’s participation in the act of publication.
MR WALKER: That is right, yes.
KIEFEL CJ: Her Honour seems to identify as relevant or considers – finds that its provision of a hyperlink search result is instrumental to the communication and the search engine lends assistance to the publication.
MR WALKER: Yes, yes.
KIEFEL CJ: Why do you say that is not sufficient?
MR WALKER: At 54 and 55 are the culmination of the first instance reasoning that we seek to overturn – in this case by the appeal against the Court of Appeal’s upholding of it. The assistance – my first part of the answer is to go back to what I have just put. That is because it is assisting the searcher. It is not assisting The Age – just to use the concrete facts of this case. It is instrumental only in the same way as any mere reference – and your Honours know where I get that from – Canada – to which I will be coming – is instrumental in the communication to a person who takes up a reference and uses it – pursues it.
EDELMAN J: It is less than a mere reference. It is one of a number of references.
MR WALKER: Yes, your Honour is, with respect, correct. It is among a collection of mere references or, if I can coin a phrase, a “mere collection of mere references”.
Now it is not a random collection and, as I say, the culture of the written word and recorded speech has for long, under the concept of a bibliography which can be unintelligent but at its best is highly intelligent, that is the result of most cultivated and refined thought – are also collections of references and there can be little doubt that the collation and availability of bibliographies was, certainly before the internet, one of the only ways in which one, without drowning or getting lost, could find one’s way round the learning of mankind.
It became of course a major tool and almost formal in its protocols in scholarship. The notion that a person who compiles a bibliography - either an undergraduate carelessly or a scholar with great acumen, regardless of the degree of discrimination exercised by the person – has, so to speak, rendered himself or herself liable by the mere publication of the bibliography with all its references for anything defamatory said in any of those texts, some of which may be most voluminous, is, in our submission, mindboggling in its consequences for a basically important human and social phenomenon of the availability of past wisdom – past learning.
STEWARD J: Mr Walker, analogies in this area are very dangerous of course ‑ ‑ ‑
MR WALKER: Yes.
STEWARD J: But to try and tease out the distinction that you wish to make, is it analogous to a situation - for example, let us say I hear about the publication of a scandalous article in a newspaper and I go on to Google Maps and type in “newsagent” so that I can get a list of newsagents whereby I can then buy the newspaper, in those circumstances, Google Maps, on your view, would be no publisher even though it is ‑ ‑ ‑
MR WALKER: Instrumental ‑ ‑ ‑
STEWARD J: ‑ ‑ ‑ instrumental, facilitates ‑ ‑ ‑
MR WALKER: Has assisted and facilitated ‑ ‑ ‑
STEWARD J: ‑ ‑ ‑ and, but for, there would be no dissemination?
MR WALKER: Yes, is the short answer. If I can burst into Latin, sine qua non will not do because we end up with “for want of a nail a horseshoe is lost” in tracing through matters – which, even when it is true is essentially trivial and is not the stuff of common law reasoning concerning requisite connection.
It is why the common law in other areas – and we would urge its adoption here – has a concept of remoteness. True that is an evaluative conclusion perhaps rather than a tool of demonstration in advance. It may be describing a quality which the common law ascribes to a perceived connection – that it exists but is so remote or too remote as not to contribute to liability, not to bring about liability ‑ ‑ ‑
KIEFEL CJ: Is the closeness of connection that you are talking about captured by the phrase “participation in the act of publication”?
MR WALKER: The simple answer is yes, but the complexity of the case – not just my argument, but the case, the reasoning to a conclusion – does involve teasing out for this very typical and very important form of human and social interaction what it means to participate in the communication of the defamation.
As the roots of the word “participate” may suggest, and as the joint enterprise reasoning of Webb v Bloch certainly illustrates, if not positively stipulates as a matter of a limiting principle, the inquiry has to be about that communication from, in this case The Age, to somebody who has gone to The Age page. It is our submission that, with all the caution that has to be expressed about analogies, there is a concreteness about the purpose of a search engine. The very expression “search engine” indicates that it is oriented to the users of it, the searchers, who are looking for whatever may answer, algorithmically filtered, their interest, a word I use for the purposes of other arguments to which I will come later.
Now, in that context, in our submission, the notion that Google is in any sense loose or tight in the joint enterprise with all the persons who, with daily changes, are supplying the material which, data‑crawled, becomes eligible to be returned in the search result is, in our submission, risible. On the other hand, Google’s customers, the searchers, the users, it makes perfect sense to say Google has supplied a tool which people who use that tool can be seen to have a sensible association. How did I get here? It was by Google.
In our submission, it makes sense to talk about Google being used by and helping the person who wants to know the unemployment rate. It does not make sense to say that Google is assisting the ABS or any scholarly or academic commentary upon the common sense of a declared unemployment rate. So, googling something is ‑ ‑ ‑
GORDON J: Could I just ask one ‑ ‑ ‑
MR WALKER: - - - entirely from the point of view of the user or searcher.
GORDON J: Could I just test that proposition? Is that right, given the business model you rely upon?
MR WALKER: Yes.
GORDON J: In this sense, that I had understood the way in which it was explained in your submissions that, in a sense, it is the ability to build the web and make the connections which generates the ability for you to attract advertisers by saying to not just users, but those who are providing a product, even The Age newspaper, listen, it is because we can build these connections and because we can put this material on the web that, in effect, means that the “other”, that is, those providing the data themselves, are critically important, if not essential, to the way in which Google operates. It is relevant to the question of participation and ‑ ‑ ‑
MR WALKER: We do not build the web. Google does not build the web. The web is defined by its interconnectedness, that is why it is called the web. It is the internet. You do not need a hyperlink to find, for example, The Age or a story in The Age. You do not need a search engine. You could do it by a friend giving you the text and symbols that constitutes the HTML code with the URL and some people still do that. Google does not create the connectedness by which that person can then have resort digitally to that material.
It is in that sense that The Age does not need Google, even though many a person may, of course, use Google for a rapid access to their daily newspaper – just The Age – no topic, just The Age. The first return will be today’s newspaper. The notion that that is participation in the publication of The Age so as to render Google responsible for everything in The Age, just as it is similarly responsible for everything in Le Monde or The Guardian or The New York Times, which may be the next Google hit by that same person is, in our submission, a strange and – if I may put it this way – rather ungracious approach by the common law to the manifest amenity of assistance to people who would like to be able to read those four newspapers in succession at breakfast.
EDELMAN J: Is there any material principal difference between the publication of search results by Google that would lead to the page of The Age and, for example, the bookmarking of The Age on a toolbar where a click on The Age would lead to the same page of The Age containing the article?
MR WALKER: No, given the exact resemblance of outcome, no. That is the means by which a particular user has their electronic habits set up cannot be significant for the common law purpose of the participation that would be the mark of a publisher, by which I mean a publisher at all. This is not a case that raises the question at this point of subordinate.
GLEESON J: Mr Walker, what, if anything, does Google say to content providers as part of its business?
MR WALKER: There are no findings about what I might call – we are not talking about permissions or anything – that rather colourful expression “data crawling”. I do not know whether it is the water snail cleaning the aquarium or whatever image ‑ ‑ ‑
GLEESON J: The content providers are leaving their content out on the beach like shells ‑ ‑ ‑
MR WALKER: They can be picked up more or less intelligently. There are no findings in this case and, were this a legitimate source of information, I cannot think of any of the relatively few reported cases around the world which supply anything like a straightforward answer to your Honour’s question. Now, I do not wish to leave an air of unreality. This is the way the world is now with respect to digitised information, communications, materials.
So, there could not be a person who either brings about or is aware that it is brought about that their material is available on the web. There could not surely be a person who does not understand that by so doing they are available for those who can find them. Those who can find them may be the person who has the grubby piece of paper with their friend’s notation of the address.
No one, I think, would ever suggest that that person – having scribbled out that piece of address – is thereby assisting the webpage owner in publishing to the person who, using the friend’s tip, goes to that site – or, at least, we submit that that surely must follow when one considers that the friend who says, “You are interested in the Ottoman Empire, here is a great site about the Ottomans” - and they just write it out for you. That, of course, indicates far more than one of our searches does – a pointing towards something – here is a site you would like. We do not have those accepted terms of the rank and relevant rankings.
EDELMAN J: Mr Walker, you mentioned that there are no findings concerning the operation of the algorithm in relation to the rankings. Is it a matter upon which judicial notice could be taken, for example, that rankings are, at least in part, determined by the popularity or clicks upon the relevant site?
MR WALKER: Yes. I think paragraph 29, at trial – pages 28 and 29.
KIEFEL CJ: I am sorry, 28 and 29 of?
MR WALKER: The core appeal book at paragraph 29 of the reasons.
GORDON J: These are the paragraphs I asked you about before, Mr Walker.
MR WALKER: Yes, that is right, yes. They are correct. I am not sure whether that encompasses everything that Justice Edelman has asked me concerning what might be available through judicial notice. I would respectfully suggest nothing in this area yet. I should not say that – nothing as to an algorithm’s operation.
GORDON J: Justice Richards describes it not as a passive tool.
MR WALKER: I am sorry, your Honour.
GORDON J: Justice Richards describes those paragraphs as giving rise to a finding where it “is not a passive tool”.
MR WALKER: Yes, that is correct, that is correct. “Passive” is another of those words which, in our submission, is the announcement of an outcome with a legal value attached to it. I am going to – as your Honours have seen in writing – we do challenge if there is any usefulness in the epithet “passive” or its opposite, “active” or “non‑passive” - we do challenge that conclusion, yes. In fact, it might be convenient for me to proceed directly to that point now to complete it.
It would be absurd to suppose that a search engine needs to be the result of some fortuitous accident as to its devising and availability in order for it to qualify as a passive instrument or means or assistance in the sense the authorities have tentatively and case by case suggested may indicate that somebody does not participate so as to be a publisher at all.
Analogies are dangerous, but of course, could there be anything more active in an ordinary sense of that word than the history of science and technology and business which produces a modern telephone company - prodigious activities of a continuing kind. Nothing passive about it at all, but relevantly, surely, regarded as passive when the result of all that action and activity permits a defamation to be voiced, conveyed by the telephone – the voice – at distance of a call.
In our submission, though not too much should be made of distinctions drawn between different phases of technological development, the well-known contrast between the telegraph operator who writes an intended message down, keys it in and it is then produced in verbal form at the other end by another operator, being sufficiently active to participate but the telephone company not being is just an illustration of the need in our submission to understand this notion of being passive or not being passive, according to the purposes to which it is being put, namely, to understand the role of the person in question in the communication of the defamatory matter.
There cannot be any doubt that whether defamation is committed by a conversation over the telephone that the telephone is, for that defamation, sine qua non. The telephone is, for that defamation, positively central to and at the forefront of any sensible description factually of what occurred. X telephoned Y, and in the course of the conversation, said Z. That would be the factual case to the hearing.
But, in our submission, neither is it easy to understand why, for the purposes of the law of defamation, a telephone company, whose very business is – and I stress, whose very business is providing the means for people to speak remotely to each other - is thereby to be regarded as a participant in the communication thereafter - by anybody who uses the telephone - of defamation.
The use of the word “passive” is, in our submission, in the telephone company case, surely a description that at least invokes notions of – the telephone company has nothing to do with the content of the conversation or, indeed, even if the conversation is going to occur at all. That does not stray dangerously close to saying the telephone company is not a distributor because it did not know there was defamation or it did not intend defamation to occur, which would be the heresy against the strict liability - a heresy we do not intend to enlist.
Rather, it is at an anterior stage, before you even get to the content – anterior stage that the inquiry ought to be focused. What is the role of a search engine, an engine for search? Who is searching? Well, it is not – The Age is not searching. It is the people who want to find out whether there is something that will answer their interest in Mr Defteros. Those are the searchers.
KEANE J: Mr Walker, you are emphasising very strongly the difference between assisting the recipient of the communication and assisting the person who speaks.
MR WALKER: Yes.
KEANE J: But in Voller the Court accepted earlier authority that is quite clear that publication is a two‑sided coin - the person who speaks and the person who receives the communication - because there is a separate communication to each recipient.
MR WALKER: Yes.
KEANE J: Just in terms of principle, why would not assisting the recipient of the communication be as relevant to publication as assisting the speaker? For example, a person who assists a blind person by reading the newspaper to that person publishes the newspaper to that person, no doubt in most cases as an innocent disseminator. But, on the other hand, if that person is reading a letter to the editor that is very defamatory, that that person wrote, the person would not be an innocent disseminator. I am just not clear why your submission seems to assume that assistance to the recipient rather than assistance to the speaker is decisive in your favour.
MR WALKER: It is part of our argument that perceiving the character of the role as being assisting the searcher or user assists. Nothing is decisive. It is no doubt, to use the jargon, multifactorial, so overall evaluation of conduct as to whether it meets the requisite character of participation in the communication.
So, I am certainly not claiming that any one thing would be decisive. I am putting forward an argument that is, I think, relatively unprecedented in the sense that the case has not arisen previously to require attention to what happens when the putative participant in the communication is a person, resort to whose services or resources, is had by one of the ultimate recipients rather than, of course, enlisted in a business network from, say, printing press through road transport, newsagent to the helpful companion who reads the letter to the editor.
That linking of the communication in the formerly paradigm case of a published daily newspaper is, in our submission, quite distinctly different from what occurs with a search engine, which for a start comes after the event of the original communication. It is only available to be data crawled because there has been prior publication.
The fact that is republication does not provide any immunity or any reason to deny the possibility of publication. I accept that. That is not our point. Our point is it is all pre‑existing and it is part of a massive material which is an undifferentiated mass until a search is requested. Then the algorithm produces by an attempted discrimination the result about which we have spoken.
Right up to that point, the services of Google have been used by the searcher and not in any way by The Age. So, this is not a case where, as it were, Google is by anything factually demonstrated or to be inferred from any other facts found to be seen as what might be called a publishing agent on the part of everybody whose material is on the web from time to time.
Now, Justice Keane has asked me why does characterising assistance to the user answer the question of assistance in the communication, and what we offer by way of principled argument in a common law area that needs to attend to fresh technological and social facts as they emerge is simply the following, that it cannot be said that there is any difference between Google in its search results and any other source by which a person obtains the webpage address for what ultimately conveys the matter complained of. That is all it does.
It does it better, no doubt, in many respects for most people than the notion of your friend giving you a grubby piece of paper with pencilled marks on it. But it is socially, we submit, and for the purpose of the common law in terms of participation in communication of defamation exactly the same, at least with respect to removal from any control or shared enterprise with the website whose address is supplied.
Now, in the case of the friend and the pencilled address, no doubt the facts, as they ought in this area of common law – no doubt the facts may produce quite opposite outcomes from time to time such as the friend supplying an address of their own website which they well know contains the material in question, or such as the friend supplying the address of a website precisely because the anterior conversation shows that the person in question, the searcher for knowledge, is in fact merely prurient as to scandalous material. Those are factual matters which are utterly familiar in the area of defamation and are no more complex than the colourful cases of pointing at placards and the like.
GORDON J: My difficulty with that sort of analysis is though that we know for the purposes of publication that knowledge that the underlying material is defamatory is not relevant.
MR WALKER: I appreciate that entirely, your Honour. However, that which might be a neutral gesture to a wall can become publication with more knowledge obviously. So, it is not that knowledge is essential, but that what I might call adoption or enticement or the like can be shown by such circumstantial material. That is commonplace reasoning in such cases.
But we have, with respect, a cleaner position, with non‑defamatory snippets in our search results, we have a cleaner position where it simply cannot be indicated in any sense with the kind of search in question in this case, that there is anything in the offing concerning defamation, whose communication we are – to use a difficult but canonical word – intentionally assisting.
Now, it is difficult because, but for the clarity that, say, Voller brings, there may have been determined if quixotic attempts to suggest the intentionality undermined the quintessential strict liability, well, it does not, and we do not argue for anything of that kind, but it still has to be intentional assistance in the sense of, as we respectfully offer, maybe the synonym “voluntary” will do.
In our submission, in concluding my attempt to answer what Justice Keane has raised with me, that which is voluntary on our part, that which is our offer to people at large, that which we would make no bones about it, we think is sufficiently attractive to have commercial worth to us, is the assistance it gives to searchers.
To put it another way, that assistance is every bit as useful whether The Age ceases to publish, or The Age closes its archives, whether the Encyclopaedia Britannica refuses to be digitised, et cetera, et cetera. It is totally indifferent to whose material is available. It instead searches from available material. That is not the hallmark, in our submission, of voluntary assistance to publication by all and any of that varying mass, innumerable mass, of the owners or others responsible for matter to be found on the net, let alone, of course, in light of the constantly changing character of (a) those people, and (b) their content.
GORDON J: Does that principle, just so I can understand it, extend to a snippet which itself is defamatory?
MR WALKER: No. This case is absolutely ‑ ‑ ‑
GORDON J: No, I know this case is not, I am just – I am trying to identify the limit of this principle that you are now propounding and ‑ ‑ ‑
MR WALKER: No, no – as I have sought to explain it and justify it, it is not sensibly applicable in all of its – in its entirety to defamatory snippets, no. I mean publication by display, which is one way, I hope not disrespectfully blunt, of explaining Voller, is pretty obvious. If you make available a message normally as a matter of fact you will be communicating it and there is no better way than making available a message by displaying it on your webpage.
We do not display any – with non‑defamatory snippets we do not display anything that conveys any relevant information, just the possibility that you may find what you are looking for at this, this, this and this place. That is one of the reasons why – again gingerly with respect to all analogies – but bearing in mind that the incremental development of the law requires some form of value‑laden extrapolation – that is why the analogy with a librarian or a library is, if anything, in our favour.
Unlike a library, we do not have available all of this material – we do not have any of this material – you will have to go somewhere else to get it. So, in the unlikely event that there was pre‑digital communication a place which could not have called itself a library – which would simply called itself a library catalogue – then, in our submission, it would have been a very difficult proposition to suggest that such a service which simply catalogues where books may be found with certain titles – it would be very difficult to suggest that that provision – albeit copiously and albeit punctiliously – of mere references represents any sufficient voluntary participation in publication by all or any of, say, the authors or publishers – commercial or publishers of those works – for the purpose of the law of defamation.
It might be different – and again this will be factual – it might be different if the catalogue is not so bare in its entries but contains, for example, snippets perhaps – or abstracts – which themselves convey something either enticing as to defamation for the scandalous career of this pope - see so‑and‑so books, et cetera.
But that is not this case which is why, as I submit, this case plus Google as a business model for such typical cases presents what might be called a clean example for the common law to decide whether or not, by providing a search engine, we have become a publisher of everything to which a person may have resort after making a search – and getting a search results for our services – with the burden, preposterous we would submit factually for Google – and for any search engine – of the onus constituted by being an innocent disseminator.
The notion that all the material available on the World Wide Web is material for which we become liable unless we discharge an onus is, in our submission, a peculiar approach of the common law to something as manifestly valuable in the eyes of the law as access to the world’s wisdom.
EDELMAN J: Mr Walker, can I test the breadth of that proposition? Google, I think some years ago, used to have a button on their search engine which was called something like “I’m feeling lucky”, where you do a search, you click the button and it would take you straight to the result. Would that be something that would amount to voluntaryism – or voluntary assistance within the approach that you take – and if so, why is that not opening up liability to potential defamation for the whole of the content of the World Wide Web?
MR WALKER: So, your Honour is asking me about a facility that, instead of ranking, is bold enough to select just one.
EDELMAN J: The top rank.
MR WALKER: Yes.
EDELMAN J: It takes the user automatically to that top rank.
MR WALKER: But to press the “I’m Feeling Lucky” button is really no different, surely, in the eyes of the common law, from seeing the ranked array and going to number one because you have found, over the years, that number one is mostly there for a reason that suits you. I mean, the jocular label can make no difference. It does not associate Google as a search engine any more closely with that number one rank than the number one rank would in what might be called the more straight‑faced response.
No, therefore, there is no, as it were, kicking of the door open by the “I’m Feeling Lucky” button rendering you liable, and therefore why not everything else? The short answer is, of course it does not, it is simply a particular style, and unless and until style intrudes into the area of wink‑wink, nudge‑nudge there is something scandalous here, and that is not this case, and those cases need to be looked at quite differently, and unless it intrudes into that area then it is of no moment for the purpose of voluntary assistance to the communication.
Now, with the word “assistance”, belabouring a point, perhaps, but importantly, of course we are not saying that the communication as an abstract noun describing a process, bilateral, as this Court says, is not assisted by resort to a search engine, but that is exactly the same as saying it is assisted, we submit, by all the other matters of infrastructure which are necessary for that to accomplished. That is most banal, bordering on the fatuous, that includes the electricity grid, or whatever source of electricity powers the instruments in question, and it is for those reasons, in our submission, that sine qua non will never suffice, although it will always be necessary.
One then seeks to look, as Webb v Bloch might indicate, for something that is identifiably, as it were, an enterprise in which all are engaged, and the paradigm case of the delivery of the newspaper, with its various steps, is just one good example of that. We are not part of that, and it is for those reasons, in our submission, that the approach taken in the Supreme Court of Canada, to which I would now like to turn in order to complete propositions 1 to 4 in our outline, took the approach it took in a way that, in our submission, is most instructive for this case.
Now, your Honours hardly need me to tell you that this is a case that was considered for the different purposes and in relation to the different issues before this Court in Voller. Your Honours certainly do not need me to cite to you where your Honours all made references to it. I will, at least in‑chief, content myself with saying there are no suggestions in any of the various ways in which your Honours refer to Crookes v Newton that in the majority reasoning – and in particular what I will call the plurality reasoning – there is to be seen fundamental error concerning the common law concept of being a publisher. That is the first point.
The second is that, as your Honours are well aware, there are references by your Honours in Voller which can only be described as agreement with the common law approach in this country dubbed Webb v Bloch as being exemplified in the outcome and the reasons for that outcome by the majority in Crookes v Newton.
With that prefaced by way of a special reason for Crookes v Newton to be of interest to your Honours in this case, apart from the fact that it comes from a Canadian common law ultimate appellate tribunal, can I remind your Honours, with apologies because of your familiarity with it, of the matters that ultimately appealed to the justices for whom Justice Abella wrote.
Picking it up – and this is [2011] 3 SCR 269 – at 280, it is 408 in the book of authorities for your Honours, in paragraph [14] – in the odd context of that case that there had been no attempt to prove that anybody had ever used the hyperlink, so collateral to the central issue for us, nonetheless Justice Abella writes that she had not only rejected the presumption:
that the content to which the hyperlink connects has been brought to the knowledge of a third party and has therefore been published -
there is then the conclusion that introduces that which is important for today’s argument:
a hyperlink, by itself, should never be seen as “publication” of the content to which it refers.
Now, as your Honours know, that concept is elaborated and teased out and it produces expressions ‑ useful, in our submission – to understand what we are putting concerning participation, and our conduct not being participation, expressions such as simple reference or mere reference.
On page 282 of the report in paragraph [18] a well‑known passage by Justice Abella uses the expression “vast”, which is not resisted in this Court in Voller, as to the traditional publication rule, a rule which has been, in our submission, vindicated in Crookes v Newton as it was in Voller.
KIEFEL CJ: In fact, I think it is only that paragraph to which the plurality referred in Voller.
MR WALKER: That is correct.
KIEFEL CJ: It did not otherwise adopt any of the reasoning in Crookes v Newton.
MR WALKER: No, that is correct. That is why I carefully framed what I said, that there are references. They are various by your Honours in Voller. None could possibly be construed as approval. But, as the Chief Justice points out, it is not the case that the plurality in Voller – if you will forgive the colloquialism – sign up to it in Crookes v Newton. That is not true and neither do we argue that. We are arguing that the holding in Crookes v Newton, to which we do draw attention, is one which is thoroughly supported.
KIEFEL CJ: What do you say is the essential holding because there are a number of strands to Justice Abella’s judgment, are there not? There is the strand of passivity, lack of control - is it essentially her Honour’s notion of it being a mere reference which facilitates ‑ ‑ ‑
MR WALKER: Essentially, your Honour, that is ‑ ‑ ‑
KIEFEL CJ: Of course, the other strand is the policy reasoning, which comes from – I think starts at paragraph [34] and onwards.
MR WALKER: Yes. Yes, is the short answer.
KIEFEL CJ: But is it the referencing that you rely upon principally?
MR WALKER: Yes. Your Honours have seen that in our writing. We are not picking and choosing from the strands. We rely on all of them. But we do respectfully submit that it is the quality of being a mere or simple reference for the use of a person as – as that if they choose, that is the heart of the holding that – to use again the jargon from this area of the law – some…..passive, and that is, as it were, explicated to include being a mere reference.
Now, providing it be a reference, it will always be the result of activity, sometimes assiduous activity. That was true before digital information. But as “passive” is used in a different sense, neither does “passive” mean it is not useful, hence the telephone company. Rather, “passive” seems to comport a status or character, vis-à-vis the bilateral communication which is the essence of the defamation suit or with respect to it, not because of lack of knowledge or anything, but because of the way it is indifferent to content and available to everyone – telephone company, Google search – that it is not merely very likely to be an innocent disseminator, if a publisher at all, but in fact not to get on the spectrum of publication by reason of that passivity.
Now, the one thing that we would add – I hope not by way of complication – to the analysis is that the concept of remoteness, which is a sensible common law concept used in a number of different areas, may assist in teasing out the core meaning of otherwise puzzling epithets such as “passive” to describe the role of someone so active as a telephone company, or Google, and, for that matter, the role of – the description of “mere reference” to something which is our prized stock‑in‑trade.
These are not trivialities, what we supply, any more than the work of a good bibliographer are trivialities, but they are still “mere references”, “mere” by reference to the endeavour of the original publisher to publish his or her material.
GAGELER J: Mr Walker, I wonder if passivity is the right analysis of what Justice Abella was getting at. If you look at paragraph [23] ‑ ‑ ‑
MR WALKER: Yes.
GAGELER J: ‑ ‑ ‑ going back to an earlier technology, she is drawing attention to the position of the radio host who calls attention to an article in a magazine. The point which she extracts from that – which, I think, follows through to her ultimate analysis – is that there is a difference between drawing a reader’s attention to the existence of an article and publishing the article.
MR WALKER: Yes, but your Honour appreciates that, in the narrative – that is, the actual concrete narrative of the proved communication – the drawing to attention cannot be discarded as being of no significance. The drawing of attention may be the fons et origo of the communication – that is why it occurred. So, my answer is a “yes, but”. Your Honour, with respect, is correct that teasing out what “passive” means – and Justice Abella uses that expression in summarising jurisprudence in paragraph [21] and, of course, it is – I will not say a “term of art” because it is too imprecise to be a term of art but it is certainly commonly used in this area of legal discourse.
What we are proposing is that in order to understand what is being got at with conclusory evaluative epithets like “passive” is the same concept as lies behind the rejection of some persons in a literal but, perhaps, ludicrous causal chain as having committed conduct that is too remote from the events in question to be within the purview of the liability that the law imposes.
That is why sine qua non will be no doubt as to actual communication – I do not mean potential communications – as to actual communication sine qua non will, no doubt, be necessary. If somebody did not deliver a newspaper, then they are not going to be liable. But it cannot possibly be essential – bearing in mind all those things which are sine qua non to the delivery of a newspaper and all the persons – highly active in their own spheres – who, at best, might be described as passive contributors – to use that language – to the communication.
The person who supplies the fuel to the truck that delivers the newspaper is, no doubt, totally active in terms of distributing hydrocarbons but completely passive in the relevant sense for the communication of the defamatory material, not passive because he/she or it does not know of the defamation on the back of the truck but simply because their contribution – their assistance – to use a loaded phrase – their assistance to the communication is not a voluntary act to assist in communication, regardless whether you know the content or not, but is simply, in that case, to refuel a truck which may or may not be used to convey all manner of things. Similarly, here, a Google search throws up material indifferent to the content except insofar as a relevance algorithm produces that result in response to the terms of the searcher, so governed by the searcher.
KIEFEL CJ: I see the time. The Court will take its morning break. The Court will adjourn for 15 minutes.
AT 11.18 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.33 AM:
KIEFEL CJ: Yes, Mr Walker.
MR WALKER: Your Honours, may I pick it back up in Justice Abella’s reasons at 412 of the book of authorities, 284 of the report, paragraph [25]. The agreement with the approach in the American and Canadian authorities referred to is described as avoiding a formalistic application of the traditional public rule.
Now, we are not submitting that the opprobrium of being formalistic is to be attached to contrary arguments. Rather, we respectfully suggest that it is an attempt to describe why it is that in applying tests that of their nature need to be expressed at a high level of generality such as participation, it needs to be understood that merely being able to see that conduct would, as a matter of ordinary English, sensibly be described as participation is not the end of the story because the word “participation”, as well obviously includes the notion of voluntary involvement in what I might call a joint enterprise, again using that last expression loosely rather than technically, although in Webb v Bloch it was technical for the attribution of malice which was of course the real point of Webb v Bloch, as opposed to publication.
The presumption of liability referred to in paragraph [25] is to be read, we suggest, as being the position that this Court, including most recently in Voller, would express as having the status of being a publisher but being a so‑called secondary or subordinate publisher with the possibility of discharging the burden allotted by law to innocent disseminators, of proving ignorance and lack of negligence, et cetera. It is described by the plurality as being “an untenable situation”, and that is by contrast with what Justice Deschamps contemplates.
We submit that that is a trenchant, robust way of describing what is entailed in the holding against which we appeal, namely that a mere or simple reference without any defamatory or snide or truly enticing quality to the search result, including a snippet, will render all providers of search engines liable, quite regardless of the fact that the whole purpose of the search is to be indifferent as between the content of the material which the very purpose of the search engine is to trawl.
In paragraph [26], as your Honours are familiar, the concept of control, not uniquely to these reasons, is introduced and without citing yourselves to your Honours the word is to be found in various ways in the reasons in Voller. It is a helpful pointer, rather than anything decisive. It is not likely that any single thing would be on its own and always decisive. There are contrasts used, rhetorically expressed but all the better so in paragraph [26], which in our submission are appropriate common law reasoning that should appeal to this Court:
Communicating something is very different from merely communicating that something exists or where it exists.
Anybody who can remember using paper bibliographies and paper libraries will well appreciate that, and the massive labour between the two. Control is again suggested, it is proposed, by the communication of something as to dissemination – by way of dissemination of the content, while the latter, that is, the mere reference, does not. As it happens, in this case, the facts are irrefragably in our favour in that regard.
Then attention is turned to that which we submit is not true of our case, but would render this authority a fortiori for our case, even where the goal of the person referring to a defamatory publication is to expand that publication’s audience. Now, that goes further than we need in our case, that is not our case, and it goes further because your Honours appreciate that is much more readily seen as voluntary assistance in the communication. The reasons then turn – hence my answer to the Chief Justice’s question earlier – to the significance of the reference.
his or her participation is merely ancillary to that of the initial publisher: with or without the reference –
So perhaps that is a clue to one of the elements to be understood from the word “mere” in the expression “mere reference”. It is not essential, my example of the grubby piece of paper with the pencilled URL. With or without the reference, the information has already been made available to the public, that being, of course, the very nature of the material breached by our data crawling.
The distinctions in the last sentence of [26] might be subject to this criticism, namely, that is obviously not exhaustive of all the ways in which a person may be a publisher, though not responsible, by the gruesome analogy with murder, for the fatal blow. Nonetheless, those are matters which are paradigms of the characteristic way in which people can be liable as publishers. It does not purport to be exhaustive.
KIEFEL CJ: The second‑last sentence of paragraph [26], as with earlier references, points out that we are talking about republication here, are we not?
MR WALKER: Republication is certainly central to the holdings that are referred to in paragraphs [23] and [24], yes, and repetition ‑ ‑ ‑
KIEFEL CJ: But I mean more generally. In the case of a hyperlink, if there is to be a publication, because there is already a publication ‑ ‑ ‑
MR WALKER: It will be a republication.
KIEFEL CJ: ‑ ‑ ‑ it is a republication.
MR WALKER: There is no question about that. That does not cut one way or the other.
KIEFEL CJ: No. No, it does not.
MR WALKER: It does not of itself help us, though if it is a republication it is for reasons, which I have called in aid already, in terms of the complete lack of control or the indifference to the communicative efforts of those who create The Age, for example.
KIEFEL CJ: It perhaps point out the level of participation that is necessary though, that one publication having been completed, we are not talking about attaching on to that publication, we are actually talking about a whole new series of acts which constitute the communication that is necessary.
MR WALKER: There is no question about that, much as is routinely proved with the publication of a book on the purchase and reading of it by individuals.
GAGELER J: Mr Walker, paragraphs [26] and [27] are really a teasing out by her Honour of the principle to be drawn from the cases which she has already referred to in paragraphs [22], [23] and [24] – there are two American cases, New York cases, one Canadian case. None of them are concerned with an embedded hyperlink. Are those cases in their outcomes as summarised by her Honour consistent with Voller? Putting it another way, is there anything about the reasoning in those cases that would take them outside our understanding of the basic principles as articulated in Voller?
MR WALKER: The facts of both Klein and MacFadden – but not I think Carter – cannot have been more obviously a mere reference. But the facts of Klein and MacFadden evoke in an Australian legal reader’s mind some admiration for the forensic outcome from the point of view of the winner – they are evaluative assessments about the extent to which pointers for more details…..et cetera – and calling attention to an article in Collier’s – those are completely factual conclusions supplying general tests.
There is nothing in the general tests enunciated in Klein or MacFadden which is alien to the Australian approach. As a mixed question of fact and law and considering the jury component of it, it might be that they represent real success for one side as a matter of persuasion, yes. But no, they do not contain any alien element – they do not pronounce anything that is wrong in principle according to the jurisprudence in this Court.
GAGELER J: I noticed in your submissions you have in footnote 23 a reference to a 3rd Circuit Court of Appeal’s decision which appears to apply pretty much the same analysis as Justice Abella applies and by reference to the same line of thinking that one can see in those earlier New York cases.
MR WALKER: Yes, which is why we have drawn it to attention. Just continuing my answer to your Honour’s inquiry, in Voller, of course, there is required, we would submit, as an element common to all the reasons, consideration in a particular case according to its facts in applying the rule – the general statement of circumstances such as with Facebook pages and the similar case of so‑called forums - whether it is possible for somebody who, after all, has displayed the defamatory comment – they are not giving a reference to it, they are actually displaying it – whether, even so, that is not publication because of what I might call the, I do not know, bizarrely non‑responsive nature of a comment such that the posting of the original news story for comment is not to be seen as and then whatever formula one adopts provoking, procuring or causing the publication of the comment.
Even in a case of display – again, such as to make our case a fortiori, surely – there is supposed to be – though it might, factually, be difficult to find such a case – there are supposed to be cases where even a hosted comment – that is a comment displayed by the defendant – emanating, of course, from some maligned stranger – might not be published by the owner of that page.
That rather indicates that though that is not to be understood as a republication case – or might always be republication, it might be the maligned stranger may have not only posted a comment but sent a letter to the editor, et cetera - that has to do with the connection between, in that case – the Voller Case – the host who invites comment and comment when it falls outside – if this can be readily imagined – that which might be expected from experience.
But leaving aside the factual difficulty of people who run comment pages being heard to say we never get unresponsive comments – we never get wrong‑headed or intemperate comments – leaving that aside, the fact is, in principle, that remains a factual adjudication in a particular case.
We are asking the Court to take the step with respect to us as a publisher at all which is much more modest in its scope. We do not display anything. We provide the means to a person who asks for those means whereby he or she may go to what somebody else has displayed and we never display it.
For those reasons, in our submission, there is significance in the way, in paragraph [26], Justice Abella makes the point that with or without the reference – so that is the inessential nature, in general, of a hyperlink to the availability of material ‑ ‑ ‑
GORDON J: Can I just ask about the opening part of paragraph [26]?
MR WALKER: Yes.
GORDON J: Her Honour draws a distinction, it seems, between two concepts, one which is:
exerting control over the content –
which is at one level inconsistent with this idea of Voller and the participation that you have accepted is the strict rule of publication. The distinction her Honour then draws is a distinction between communicating something ‑ in effect, about its existence as distinct from:
communicating that something exists or where it exists.
Is that a distinction between the form of the thing that is displayed by Google?
MR WALKER: No, that would be true of the bibliography. So, the story of the Ottoman Empire is to be found in the book, you are not told anything about the story of the Ottoman Empire by the bibliographic reference to that book.
GORDON J: If you go to the web matter, which is the matter that is in issue here, one sees from the way it is, as I understand, said to be the material with which we are concerned, there is a snippet and then there is the link to the URL. Are we in the former category or in the second category on this analysis?
MR WALKER: We are very much in the second category with the case of non‑defamatory snippets, which is this case.
GORDON J: But then we are back to content, and this is the point here. Her Honour is not talking about – her Honour is, in effect, bringing into the publication level knowledge of the defamatory material here.
MR WALKER: Your Honour, I can understand, with respect, why you raise that. Nothing in these reasons suggests a reversal or a destruction of the fundamental basis of what her Honour calls “the traditional publication rule” that I will call the strict liability requirement, but, rather, in terms of assessing, for the purposes of what in Australia might be called participation, that there are attributes of somebody’s role ‑ one of which is control or lack of control over content ‑ that may be informative of participation. Now, we do not submit that that is a decisive matter, as I have several times said.
This does not show error or departure - material difference from the Australian approach in Canada. Rather, it explains why in assessing the nature of the conduct of the hyperlink reference – the person who provides the hyperlink reference – that is to be seen not merely as subordinate with a defence of dissemination and all the joy that brings, but rather that it is – my words – too remote from the actual communication which is necessary to complete the tort of the defamatory material which is not found in the search result. That is why it is significant that this is a case about a non‑defamatory snippet and a URL that does not itself contain anything defamatory.
In paragraph [27] her Honour continues that theme. I have referred several times to the changeable nature of that which is made available by hyperlinks, all of which indicates that in what might be called the chain of causation, our client plays a role in relation to the searcher’s activity rather than in relation to the original publisher’s activity, in this case The Age.
Thus, for example, in paragraph [28], it is not being suggested there that the traditional rule has been hacked apart so as to require creation or development, but rather to say it does not include those matters. They are not, as is well known, and as the court plainly appreciates, not least by the reference to clapping down the press in the R v Clerk (1728) in paragraph [18], the court obviously appreciates that you do not have to be involved in creation or development in what might be called the lexical or semantic sense of the defamatory text.
In paragraph [29], this notion of moving from one source to another is in the same direction as we are trying to capture by associating Google with the searcher rather than with all the original publishers that the World Wide Web hosts - conveys, I should say - and also matches what we have urged concerning remoteness.
Paragraph [30] culminates the reasoning by which hyperlinks are references. They are self-evidently references, we submit. It is significant, again - nothing here is on its own decisive hallways - that the mode of conduct that this case brings to this Court’s attention does show that, in order for the bilateral communication of the defamation to take place, there has to be “some act on the part of the third party before he or she gains access to the content” – the person I have been calling “the user” or “the searcher”.
Now, on its own and read completely literally, that may be of no more significance than the fact that a person has to read the newspaper before the defamation is conveyed. That is the act of a third party. But surely, these reasons are not to be read as having devoted attention to something so obvious. Rather, it is the act of taking up a reference which is not something which is in what might be called the stream of conduct, such as from printing press to newsagent in paper days, with respect to the digitally stored story in The Age.
There does not have to be access to it by reason of the fact that, by whatever means, including by reason of our digital search engine and our provision of hyperlinks, there does not have to be any particular access to that story. If there were not the interposition of the choice by a person between those matters thrown up in a search then it would be a different case. Even so, in our submission, it would still be a question of what the display, thrown up in answer to the search request, actually conveys to the person in question.
I need to deal with the fact that in paragraphs [32] and [33] there are references to the Charter. It would be a legitimate point in considering the usefulness of the authority in this country to note that there is no corresponding element in our jurisprudence. I need to say, however, and I hope without any disrespect, that you can hardly see in paragraphs [32] and [33] any particular provisions of the Charter, except such as would invoke a pre‑existing common law concern for freedom of expression and access to information, the kind of concern which requires statutes, like Copyright Acts and Patent Acts, in order to protect against the access which publication would otherwise give, and which would be for the benefit of mankind to enjoy.
So, rather, the reference to the Charter ought to be seen as there an enacted and formal mechanism, as it happens, in this case, it appears for the conveying of extremely general values of a kind that, in any event, inform the common law that not only the Canadians, but we also adopt.
I cannot resist as to the figure of speech with which paragraph [36] rhetorically concludes, to suggest that the problem with such figures of speech is that, depending upon their dimensions and their geometry, there is no difficulty in putting a square peg into a hexagonal hole, or vice versa. It is a hackneyed way, with respect, of talking about fit, and we would urge that a better fit does include a concern then with the matters of policy that I will not take your Honours through in detail - the Chief Justice has already referred to the way in which that is expounded in the plurality reasons.
There is nothing in those matters of policy which is foreign to the policy of the law, what once upon a time was called public policy, properly informative of common law decisions, should be perceived as being in this country. There are no differences, we earnestly submit, between Canadian society and Australian society in any of the respects that those policy considerations refer to.
KIEFEL CJ: But you would need a reason to have regard to policy, where you have settled rules in relation to publication.
MR WALKER: Unquestionably, your Honour. But in our submission, it is not only when what might be called an overt or tectonic shift in the common law rule is being essayed that one turns to the policy of the law in order to understand the content in its application to particular facts of rules stated so generally as looking for participation that, in our submission, it is proper to bear in mind consequentially – that is, as a consequentialist matter – what would follow in the real world in which this kind of conduct is being carried out were that understanding, say, of the word “participation” to extend so far.
GORDON J: One of the difficulties with that analysis undertaken by Justice Abella, at least in relation to what might be called these policy considerations, is that it seems to proceed from an acceptance about the facilitation of access to information that is provided by the Google product and yet seeks to then detract from it in ways in order to address freedom of speech and those sorts of matters. Is that a fair description?
MR WALKER: The problem with the word “facilitation” is that it is – and more so “participation” is that it can literally – and not always, to nonsensical extremes – extend to include players in communication that nobody considers to be publishers. The problem with facilitation is that it requires turning a blind eye to the central contribution of what nowadays is called infrastructure, so the ordinary non‑contextual meaning and breadth of the notion of facilitation – rendering possible or rendering more easy – simply will not do as a test of who is a publisher or not.
It casts too broad a net to answer the evident social purpose, both at common law and the statute of liability and defamation, partly for reasons which are within the policy of the law, hence references to control and the like, all without trespassing into the forbidden ground of appearing to require knowing endorsement of a defamatory message.
The second point is this. No, these are not reasons that contain – that is, in the Canadian Supreme Court - impossible internal contradiction. It is not being said that there is facilitation in this case which constitutes one a publisher, but that is answered by a newly‑found principle for search engines – for providers of mere references by way of hyperlink.
It is simply pointing out that the facilitation, as a matter of ordinary English, of somebody finding material which happens to be defamatory, by an anterior provision of a mere or simple reference is not facilitation that answers the common law description that in this country perhaps has as its climactic single word, “participation”. It is for those reasons that earlier decisions using strong language like “in any degree”, et cetera, read according to the facts of those old cases – Sir Isaac Isaacs, of course, collects them relevantly as to the dicta – and also what was decided in those cases, with respect, comes nowhere near touching the sides of the controversy presented to this Court today.
In our submission, those are dicta which would not admit of there being any limit to the number of facilitators who are thereby publishers. Yet, not only at the time of those authorities, but ever since there has been case‑by‑case innumerable instances of people who factually facilitate nonetheless being emphatically found, without any controversy, not to be publishers at all. I do not just mean subordinate publishers, I mean not publishers at all.
That is the difficulty, with respect, with a common law rule that uses such general terms at such a high level of distraction as facilitation. That may be a hallmark of a common law rule but it is why from time to time they need to be revisited in order to be applied to facts such as we throw up in this case and in light of matters including the relevant policy of the law which will include…..social needs ensuring that facilitation is not too broad or participation does not include people who, as we submit in this case, are really only to be seen as assistors to searchers.
Your Honours, given the time, I want to be brief about the remaining grounds. May I do so as follows? In proposition 5 ‑ ‑ ‑
EDELMAN J: Sorry, Mr Walker, just before you move on to qualified privilege, even if all of your submissions to date are correct, does not the notice need to be taken into account? In other words, even if one assumes there had been no publication, for all the reasons that you have given, until the moment that notice is given why would Google not be in the position of the golf club in Byrne v Deane or a party that might be said to have been on risk or to have adopted the defamatory content by choosing not to take it down after the notice had been given?
MR WALKER: First, as to what I will call the merits, if your Honours will forgive me, as we pointed out in our footnote 6, as it happens, we have a policy which goes further than would be necessary – sorry, which proceeds regardless of our contention we are not a publisher at all. What our policy is will not inform what the law should be according to your Honours’ adjudication. But we draw to attention, you do not have before you a litigant that, as it were, travels over people’s interests. That is the first thing.
The second thing is, please forgive me for using another analogy – the area seems plagued with them. The unfortunate, whose fence might be seen by cynics as a standing invitation for defamatory graffiti during, say, an election period, is not a publisher as soon as the vandal sprays the words. But, according to, with respect, common sense principles illustrated by a few cases, there can be such conduct which includes what might be called acquiescence which obviously involves concepts of at least knowledge of the message being present whereby the person is converted from being a householder with damaged property to being a publisher of the defamation.
That is a case of notice, and it is only a coincidence that we use the same word there as is involved in that which is imposed on a defendant by way of a burden as an innocent disseminator. It may need not be formal notice, it need just be a concatenation of circumstances, that convert the person from the vandalised householder to the conveyor of defamatory message.
We apprehend that though the case did not proceed in this fashion below – that is the plaintiff did not so frame it – we apprehend that, were we to succeed in ground 1, in following cases persons may say but you, Google, with your vaunted comprehensive search are to be seen after I have notified you that one of the hyperlinks will take it through to something that defames me – are to be seen as analogous to the householder who is actually quite content for the defamation to stay on his or her fence.
Now, this is going to be a factual decision in cases just as the fence cases are but, in our submission, where, following the notice, the position remains as it was before the notice – namely Google displays nothing – Google does not have the equivalent of a wall on which words are being painted – there will be, in our submission, failure by future plaintiffs who take up the graffitied wall analogy against us even if we win ground 1 in this case.
So, that is looking ahead to how things will turn out. I apprehend that your Honour’s concern is the extent to which the mere reference will continue to be a complete answer after the person who supplies the mere reference asks Google – is informed, well, look, you are a mere reference – takes persons concerned to follow them through to this noxious material. In our submission, the position of a non‑publisher – unless they be like the householder and the graffitied wall – will remain a non‑publisher, regardless of the will, then becomes aware, say through defamation proceedings, of what is the position concerning the means historically by which the defamation was originally communicated.
STEWARD J: Mr Walker, just to summarise, does that mean that in the Byrne v Deane line of case, if a notice had been of a hyperlink, rather than of the defamatory statement about whoever dobbed them in to the police, they are not a publisher?
MR WALKER: I may have not understood your Honour’s question, I do apologise.
STEWARD J: No, no, I probably expressed it very poorly.
MR WALKER: Your Honour was asking about a notice?
STEWARD J: In dealing with Justice Edelman’s concerns about do you become a publisher once the notice is given to you – a bit like the golf club case, Byrne – is your point that you are different because, imagine in the golf club case if it had been today, instead of them putting on the noticeboard the actual defamatory material, if instead all they put on the noticeboard was the hyperlink or a series of hyperlinks – one of which then went to the defamatory material – is that the distinction?
MR WALKER: That is part of it. Another way of – a variation of my answer to Justice Edelman, to try and respond to your Honour, is that Google is not supplying a noticeboard which has been hijacked by unruly members, it does not display anything which is defamatory, it is not in a position of receiving notice that it is publishing anything defamatory. It is receiving notice, in the hypothesised case, that its hyperlink is one of the ways in which a person can gain access to a defamatory article published by another – I stress one of the ways – and, in our submission, such notice does not alter the fact that it remains a mere reference.
GORDON J: Can I just ask – I will interrupt you for one last time, about the notice provision. Here there has been a lot of focus on the letters that are exchanged between Google and the Google officer ‑ ‑ ‑
MR WALKER: I am going to come to that with ground 2, your Honour ‑ ‑ ‑
GORDON J: Can I ask a question before, about that?
MR WALKER: Of course, your Honour.
GORDON J: That is, is the notice really the notice of going onto the Google website, which Justice Richards identifies, and, in effect, bringing to the attention of Google by the removal form that Google itself offers – is that itself the notice, identifying what the problem is and providing the URL?
MR WALKER: Yes. If a ‑ ‑ ‑
GORDON J: I put that badly. There is a two‑stage process, as I understand it, from reading the reasons below. Google provides a mechanism on its website when you can go on and say, listen, I have a problem with what you have – what the search results are producing.
MR WALKER: Yes.
GORDON J: I ask you to remove it, remove the item, and you can explain what the purpose of it is, what the reason is, and one, I assume, from the way in which Justice Richards describes it, it is defamation. Is that the notice? Is that the thing that constitutes the notice?
MR WALKER: It will be conduct that, depending upon the facts of the particular case, will include, in the to‑and‑fro, something that can be called the notice, yes. May I make it clearer – because all of that is conduct which was held, and it is not challenged in this Court – that was all held to exhibit reasonableness on our part. So, we do not have a problem of a faulty system, as ‑ ‑ ‑
GORDON J: I am not suggesting you have a faulty system, I am just trying to work out, in a sense, the notice system itself.
MR WALKER: Yes. That, of course, is what I might call a private arrangement. It will fall to adjudication in a court as to whether our private arrangement is of any use to us in terms of defamation and liability.
GORDON J: Well, no, this is an arrangement whereby someone, for example, like Mr Defteros, could go on – and did, in this case ‑ ‑ ‑
MR WALKER: I know, but it is private in the sense that Google is not a public authority.
GORDON J: I see, I understand.
MR WALKER: So, Google is running its business, and it happens to have, as one of the amenities or facilities, the arrangements that your Honour has referred to. I do not mean they are - I mean they are private in the sense that it is private enterprise.
EDELMAN J: One difficulty may be that, in a sense, to use your language of voluntary participation, voluntary assistance, at the point at which notice is given, putting aside any defects or errors in the notice there, but at the point at which notice is given, a voluntary decision is then made, and usually made by a human agent.
MR WALKER: Your Honour means not to do anything?
EDELMAN J: Yes.
MR WALKER: Yes. That, in our submission, still only represents voluntary assistance to any searchers. It is not to The Age or to any of the other – it is not just The Age in question, of course. It is all and anybody who thereafter makes that search request and gets that search result. But I accept that it is entirely appropriate to use the word “voluntary” to describe the character of conduct, in this case by Ms Ahn on our behalf, where a decision is made. It does not matter which way, one way or the other, but when it is a decision to do nothing, I accept that that is relevantly voluntary or, if you like, intentional.
GORDON J: So just to come back to where you started at the original proposition, what is the answer then to that conduct being seen to be as a voluntary conduct in relation to the thing which has been brought to your attention, that you have control, you can break the link, you have been told about it, it is voluntary – we are not talking about even knowledge in terms of confusing the two concepts.
MR WALKER: At this point we are talking about whether we are a publisher at all. That is the first thing. As we understand the case against us, it is not based on the proposition as one of the variant ways of putting it that we were not a publisher at all until Ms Ahn’s response. That is, like the householder who instead of being disgusted is quite delighted by the message on the fence.
GORDON J: I understand, Mr Walker. I am being a bit slow and I apologise. I am just trying to test the original proposition you principally put to us and to test it against this second set of facts which are relevant to the defence, and you may never get to them, I accept that, but it is a way of testing to see ‑ ‑ ‑
MR WALKER: I accept that entirely, your Honour, of course.
GORDON J: Yes, that is why I am asking.
MR WALKER: So, I understand not only what your Honour has just asked me, but also what Justice Edelman has asked me. Yes, it is appropriate to borrow those circumstances that we call in aid for our fallback if we are wrong on ground 1, to which I am about to come briefly. Our point simply is that, apart from the fact that this case was not mounted in that fashion and is not reasoned below in that way and there is no contention to this effect, it is in principle, in our submission, surprising that a person who was not a publisher at all because they supplied a mere reference, without changing that conduct from simply still standing to provide mere references, would become, because of one person’s grievance about an aspect of what might be displayed by another person if a hyperlink is activated or is used, becomes a publisher of that material simply because they have been told by somebody that material includes a defamation.
If all you have ever done and all you ever stand to do is provide a mere reference, the quality of that act does not alter by reason of the fact that you know that somebody will have a grievance against The Age in the case that anybody at all gets access by whatever means to that Age article which defames them, so they say.
There is nothing hitherto in the common law to suggest that the supplier of a mere reference who still only supplies a mere reference becomes, as it were, responsible for content after they have been told about that content when all they are ever doing is supplying a mere reference. Otherwise, why would not telephone companies or radio transmitters and the like be liable after notification when all they are doing is providing, purely passively, essential facilitation which does not amount to the participation that the law requires in order to be a publisher.
It is to be remembered that it is not as if this case throws up the social need to have Google as a defendant. They have The Age as a defendant. I am about to come, of course – as you know in ground 2 – to some piquant factors in relation to that circumstance.
Your Honours, very briefly, with respect to qualified privilege, we rely on our written submissions, of course. May I just flag, by way of emphasis, we understand the historical obstacles of practice in the way of the mutuality of interest and the legitimacy of interest that we face. However, as you have seen in our written submissions, we call in aid the essential quality of what is happening in a Google search. Somebody has an interest in something. So, this is not the tabloid which you might buy because of the front page and then page 4 has something alarming not presaged on the front page.
We are here talking about self‑selected readers, or audiences, who select and obtain access to the punitively defamatory material published by another anteriorly to Google search giving a result. In our submission, by definition – or in the very nature of that interaction or intercourse – the interest of that person is demonstrated – simplified – not just as a matter of inference – that constitutes the showing of a relative interest.
Now, we accept that the common law has for long distinguished between some qualities of interest and others and a shadowy – not particularly well‑patrolled border between what courts regard with disapproval as prurience and the like – and courts would regard as being a substantial, general, proper public interest - has a decisive effect on the availability of the defences, both at common law and, in a strongly modified sense, under the statute.
But, in our submission, this is a case that throws up a subject matter that can scarcely be regarded as of insufficient public interest. It is described, as your Honours know, as being of considerable public interest. We would urge that that amounts to a legitimate public interest, namely, in the so‑called Melbourne underworld of a certain era. Hence, the finding – which is common ground here – that a substantial proportion of the users had a legitimate interest.
Now, if you lose such a defence because not everyone – then, in our submission, one would come to question the cogency and utility of a common law so framed, but in this case, we go further and say the very nature of a facility – which is an all-comers facility, the search facility – suggests that when, as in this case, a substantial proportion are using it in such a way as would give us a defence if we lose ground 1, then one asks why at common law would that defence not be available simply because there are some people – and I do not think I can factually, but it is tempting from the materials in this case to suggest that they are atypical – whose interest cannot be so characterised, either because of a positive finding to the contrary or, as would appear to be the case here, an incapacity to make findings…..an element of inappropriate speculation, we would submit.
But the only way in which there could be a response would be to stop everybody from having access. No one has suggested there is either any practicality or, indeed, even logical possibility of a search engine being constructed so as to discriminate between those who will get results depending whether they have legitimate interest in the topic of search or not, within the meaning of the defamation law in force at that time and place.
So that is our propositions 5, 6 and 7 as to the common law matter that I wanted to emphasise. As to the statute, we want to emphasise, as your Honours appreciate, the greater liberality in favour of defendants by reference to the apparent interest possibility, if that is available to us, because we are held to have acted reasonably, as I have noted.
Again, we say, ringing the changes on what I put about the common law legitimate interest – again, we say that the very fact and nature of a search engine which invites all comers to express their interests by way of what they are searching for and the way in which, according to its corporate system, there is cognisance of the so-called respectability of sources, et cetera, when attention is drawn to matters by people with grievances all of that combines, in our submission, well and truly convincingly to make out reasonable grounds for the perception of apparent interest on the part of our client in the circumstances of a case like this, which are, we stress, likely to be highly typical in relation to search engines.
Now, finally, we…..in our written submissions with respect to ground 2, and as propositions 10 and 11 seek to emphasise in address, it is to be recalled, as we have set out in paragraphs 15 and 16 of our written submissions, that the notice in this case was, how shall I say, scarcely an example to be emulated ever again. The notice in this case started with something which is unaccountably incorrect, to use mild language. It is just not true that there had been suing, and it is just not true that that suing had resulted in an article being found to be defamatory, and it is just not true that there was any settlement of the kind indicated.
When there was appropriately diligently and acting reasonably something that some may construe as pushback, testing simple inquiry rather than inveterate scepticism on the part of Google, Ms Ahn, again acting reasonably as found, sought not unnaturally a record of this happy judicial outcome in Mr Defteros’ favour. Then, again, surely never to be
emulated, there is a response, unaccountably wrong, that I do not need to dwell on, but we have set out in our paragraph 16.
Now, we lost on this point on a curate’s egg approach, a very bad egg but it had one good part, there was defamation of Mr Defteros and it certainly conveyed that as to both of the bouts of so‑called notification. However, as we have written, it scarcely did so by setting out the concern – I do not mean in a formal concerns notice sense but just the concern as a matter of English – on behalf of his employer by Mr Dorey of what it was about the article that could then were, say, innocent dissemination to provide the occasion for the consideration of our position and the assumption of a burden by us as to the nature of whether there was a defamation or whether there was a proper answer to the so‑called defamation, et cetera. None of that occurred and, rather, as we have put it, egregiously misleading material clearly designed to persuade as to withdrawal by reference to outcomes which were quite fictitious in the past.
It is for those reasons, in our submission, that the case does provide a vehicle for the Court to require, surely eminently reasonably, that the notice for the purpose of the common law defence of innocent dissemination has to be a notice which has a sufficiently square and proper relation to what is in fact the case before there is created the burden which the doctrine imposes on a defendant.
May it please your Honours.
KIEFEL CJ: Yes, thank you, Mr Walker. Yes, Mr Gilbertson.
MR GILBERTSON: Your Honours, the appellant was a publisher of the Underworld article in accordance with the principles in Voller and Webb v Bloch. It was instrumental in, or a participant in, the communication of defamatory matter. It voluntarily assisted in the communication of the defamatory material, in our submission.
The publication rule, as was observed in Voller, has always been understood to have a very wide operation. In our submission, they include subordinate distributors, and they are not confined to joint tortfeasors. They were referred to, as your Honours well know, in relation to the Google search engine in Trkulja v Google, the relevant passage of which is referred to in Voller, paragraph 24.
We submit that there are a number of indicia in this case which go to instrumentality or participation, and they are the systems employed by the appellant - enticement, incorporation and notice. This search result, in our submission, was more than a library catalogue, and it was not a mere reference.
Our secondary submission, your Honours, is that the systems and notice are sufficient of themselves to establish publication, for the reasons given by the trial judge at paragraphs 54 and 55. If I could turn first to the appellant’s systems, the Court has already been taken to those parts of the trial judge’s reasons where they are set out. I want to deal with it by reference to the Court of Appeal summary of it, or rather, repetition of it, which is at appeal book page 151. This is in paragraph 45 of the reasons of the Court of Appeal.
Commencing in the third paragraph, your Honours, on page 151 of the appeal book, there is a general reference to search engines, then the Web crawler program is described, and it is described this way, commencing from the second sentence in that paragraph:
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.
Then, her Honour went on in the next paragraph to refer to the “indexing program”. Finally, your Honours will see in the paragraph underneath that, the importance of the algorithm. It is said:
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:
Then, they are set out. Your Honours will see that paragraph (a) includes:
the number of times one or more of the user’s search terms appear on the webpage, as indexed by the indexer program –
and (b):
how often other web pages link to that web page –
These systems, we submit, are relevant to the question about whether or not Google is instrumental or a participant in the publication. This is not a case of a mere hyperlink on a website of the kind in Crookes v Newton – and I will come to Crookes v Newton shortly.
The search result, your Honours will see at page 143 of the appeal book. The title – which is also the hyperlink – is the first line. The second line is the shortened form of the URL, and the third part is the snippet. The Underworld article commences in the Court of Appeal reasons at 40. The title to the Underworld article corresponds to the first six words in the search result. In our submission, the search result enticed the searcher to click on the hyperlink – as the court below found at paragraph 85.
It was put against us in the written submissions that there was no explanation as to what the enticement was. In our submission, it is obvious from the language used in the search result that such language excited interest in the searchers to click on the hyperlink, in particular ‑ ‑ ‑
STEWARD J: Mr Gilbertson, if the search result did not have the quality of enticement, would your case be different?
MR GILBERTSON: No, because our subsidiary proposition, or submission, your Honour, is that the systems and notice would be enough.
GLEESON J: So, the system differentiates your case from the case of the friend with the grubby piece of paper?
MR GILBERTSON: Yes.
EDELMAN J: Or the mere hyperlink.
MR GILBERTSON: Or the mere hyperlink on a webpage with nothing in the content surrounding the hyperlink which goes to instrumentality or participation such as adoption, endorsement, enticement or any of the other descriptions.
EDELMAN J: Is that the reason that the concession was made at trial that publication only occurred I think a week after the notice?
MR GILBERTSON: Yes, your Honour.
STEWARD J: So, Mr Gilbertson, enticement then is an additional reason for the demonstration of instrumentality, facilitation, et cetera?
MR GILBERTSON: In this case yes.
STEWARD J: In this case, yes.
GAGELER J: Could you unpack for me what you mean by enticement?
MR GILBERTSON: Your Honour, in our submission, the enticement consists of language used in a search result which excited an interest in the searcher to click on the hyperlink.
GLEESON J: But the searcher has already conducted a search. The searcher – the starting point is that they have some interest in - whatever topic that they are searching for.
MR GILBERTSON: They perhaps might want to find out something about George Defteros, but it is the particular language in the search result – “SpecialsGanglandKillings”, “Crime & Corruption” and the colourful nature of the snippet that, in our submission, excited interest in a person who has done that search to click on the hyperlink.
GAGELER J: So, there could be some search results lower down the list that would not carry that element of enticement?
MR GILBERTSON: Yes, such as that in Crookes v Newton, although it was a webpage, but the surrounding words did not, in our submission, constitute enticement of that kind.
GAGELER J: So, the context of the snippet is very important in your analysis.
MR GILBERTSON: In particular, yes, as well as the other two – perhaps not the shortened form of the URL – as well as the title.
KEANE J: The problem with the notion of enticement might be the suggestion that requires that it involves some further excitement of the searcher. If the search query produces a result that conforms substantially with it, is it not simply that the searcher is being told this is what you were after?
MR GILBERTSON: It might be, your Honour, but it could be that if it is that the searcher does not click on the hyperlink for whatever reason – might be satisfied with the content of the search result – might not be satisfied with it, but not want to click on the hyperlink. It still leaves, in our submission, a place for enticement.
If I could move to incorporation, which was relied upon in the court below, the words of the search result were closely connected with the Underworld article, and, in our submission, that is part of Chief Justice Kourakis’ principle of incorporation referred to in Duffy at page 356. It is paragraphs 172 and 173 in the book of authorities at page 588.
KIEFEL CJ: In the context of publication, does it make much sense to speak of incorporation if you cannot see it?
GLEESON J: Does it mean that there is a publication even if the person never clicks on the link?
MR GILBERTSON: Not if the person does not click on the link, and to answer your Honour the Chief Justice’s question, it makes sense in that it draws attention to the defamatory material by incorporating material that is closely connected with it.
KIEFEL CJ: That might be a convenient point to break for lunch.
MR GILBERTSON: As your Honour pleases.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2:15PM:
KIEFEL CJ: Yes, Mr Gilbertson.
MR GILBERTSON: Your Honours, I wish to say a few more things in relation to publication. Firstly, notice we say is relevant to publication, not only innocent dissemination. Here, the appellant was put on notice of the defamatory material by being provided with the full URL and we submit that notwithstanding the inaccuracies in the notice that that is sufficient.
GAGELER J: Sufficient for what?
MR GILBERTSON: Sufficient for when the search engine operator is given notice and he has the capacity to prevent the search engine from producing the search engine result and it fails to do so within in a reasonable time, then in our submission, the giving of the notice and the failing to prevent the search engine to not produce the search result go to participation.
KIEFEL CJ: That sounds more like liability for negligence than liability for publication.
MR GILBERTSON: In our submission, not, your Honour, because it – once there is notice of the defamatory matter and there is a capacity to stop it producing, in our submission, it is not negligence, but it shows a ‑ ‑ ‑
KIEFEL CJ: That is assuming there is a duty, of course, but it is more. I mean you are drawing on concepts from the law of torts, are you not?
MR GILBERTSON: Yes, I am, your Honour, yes. I would not be submitting if there was a lack of notice that there is any relevance in relation to that. But once there is awareness and a failure to take action, in our submission, that is instrumentality.
KIEFEL CJ: Well, I am having difficulty in relation to - someone who is not a publisher the notice makes them a publisher. I mean this is a tort, but it is strict liability. That is why publication is so critical.
GLEESON J: Maybe there needs to be a distinction between publication per se and responsibility for publication? Speaking for myself, I find it hard to believe that the person who clamps down the printing press is a publisher, although they are responsible for the publication.
MR GILBERTSON: In our submission, with respect, your Honour, it does not matter, we say, for this purpose, the distinction between the two. There is nothing further, really, I can say in relation to the notice point about publication.
KIEFEL CJ: Yes.
STEWARD J: Mr Gilbertson, before you move on away from publication, could I just ask you a question, please? There were two publications found by the courts below that Google was responsible for. The first publication was the list of the search results. The second was The Age article. In relation to the second publication, which I take it you accept the first publication did not involve the publication of defamatory material ‑ ‑ ‑
MR GILBERTSON: Yes.
STEWARD J: Yes. So, in relation to the second one, it required a “searcher” – to use Mr Walker’s term – to hit the URL and click on it, in order to produce the article.
MR GILBERTSON: That is so.
STEWARD J: Do you accept that, for that purpose, Google did not participate in any way in having the searcher click on the URL?
MR GILBERTSON: We accept that. However, there are, in our submission, circumstances where the person to whom the matter is published has to take a step – or a number of steps – in order to comprehend the material. For example – and this is not a trivial example of opening a book – the passers‑by in Hird v Wood – who were looking at the defendant sitting on a stool near, it is said, the placard, had to turn to look at the placard.
In the case of online material, we know from Dow Jones v Gutnick, there is no publication until it is downloaded and comprehended by the reader. Here, there is an additional step of clicking on the hyperlink, but, in our submission, does not detract from Google being a publisher of the hyperlink material in this case.
STEWARD J: But it is a critical step, though, is it not, that someone who is a searcher sees the list of results, of URLs and clicks on one, and that act Google has nothing to do with?
MR GILBERTSON: That is so. However, we submit that it does not matter that it is the third party who has to take that step. The conduct of the appellant, we say, was voluntary and active, and as the trial judge pointed out in paragraph 40, the search engine is designed by humans who work for Google to operate in the way that it does and in such a way that identified objectionable content can be removed by human intervention from the search result that Google displays to a user, and the Google search engine singles out search results for attention by the ranking algorithm that ranks according to relevance.
EDELMAN J: Mr Gilbertson, the ranking algorithm does not form any part of your factors that would support publication, does it? It would not matter, for example, whether The Age article appeared second, fourth or seventh on the page, as long as it appeared on the page.
MR GILBERTSON: That is so, your Honour, yes. Crookes v Newton is distinguishable, we say, because that was a mere hyperlink on a website. However, I want to say a couple more things about Crookes v Newton. We submit that parts of it are consistent with Voller and Webb v Bloch, but other parts are not. The parts that are consistent are paragraphs [16] to [20].
GORDON J: Is that consistent because it is reflective of the strict publication rule?
MR GILBERTSON: Yes. The two parts that I wish to highlight as, in our submission, not being consistent with Webb v Bloch and Voller are the paragraph that have already been referred to, paragraph [26], in relation to:
Referencing on its own does not involve exerting control over the content -
and, in addition, we submit that at paragraph [40], her Honour conflates meaning with publication. If I could take the Court to paragraph [40], which is at page 419 of the book of authorities, where Justice Abella said:
Where a defendant uses a reference in a manner that in itself conveys defamatory meaning about the plaintiff, the plaintiff’s ability to vindicate his or her reputation depends on having access to a remedy against that defendant. In this way, individuals may attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actually expressed something defamatory -
and there is a reference to Dr Collins’ third edition:
This might be found to occur, for example, where a person places a reference in a text that repeats defamatory content from a secondary source.
We submit that that is conflating meaning, being one of the elements of the tort, with publication, being another of the elements.
GAGELER J: Mr Gilbertson, can I ask you, like I asked Mr Walker, about the case law that Justice Abella builds upon in paragraphs [22], [23] and [24], two American cases and one Canadian? Are they reflective of our law, and if not, is there any case law you can point me to that demonstrates that?
MR GILBERTSON: The answer to your Honour’s second question is no, I cannot. However, in our submission, the two American cases of Klein v Biben and MacFadden v Anthony are participation in the sense of enticement or calling attention to. Klein v Biben has the reference to:
“For more details about [the Plaintiff] –
and I say, however, what I have just put with some hesitation about that, if that is all it is, “more details”, but in our submission, that is enticement or an invitation to click on – if this were a hyperlink, to click on the hyperlink, and the way it is put in generalised language, at least at paragraph [23], about MacFadden v Anthony being:
“called attention to –
in our submission, is in the same category. However, the Canadian decision, by the mentioning of an internet address of an online discussion forum, in our submission, that is not publication.
GAGELER J: So, the discrimen is enticement?
MR GILBERTSON: In this circumstance, yes.
GAGELER J: Thank you.
GORDON J: Can I just understand that submission. Before the luncheon adjournment you identified, as I understood it, a distinction to be drawn between this case, that is, Crookes, and this case based upon the involvement – I am going to use a neutral term of the “relevant defendant” – is that separate from what you just did in answer to Justice Gageler?
So, as I understood it, you were relying on four things, one of which was the findings made by Justice Richards at paragraph 20 and following about what you describe as the Google system, its business, what it did, the steps it took in order to generate – I am using very neutral language at the moment – about which there is complaint?
MR GILBERTSON: Yes.
GORDON J: Does that form part of the same argument in answer to the questions given to Justice Gageler, that is, that is another aspect of distinction, or is it separate?
MR GILBERTSON: That is another part of it, if I understand your Honour’s question correctly.
GORDON J: I will put it bluntly. I apologise, I am not making myself clear. Is it the defendant’s answer to this case in this sense - Crookes is not dealing with a systems case. It is not dealing with a Google systems case and none of the cases that you have just been answering in relation to Justice Gageler are systems cases. That is the first point of discrimination as I understood you. I just want to make sure I am clear that is what you putting to us.
MR GILBERTSON: Yes, that is the first point, yes.
GORDON J: Then the second is that when one goes to the subsequent cases, including the Canadian cases, they are dealing with aspects of the way in which the information is presented?
MR GILBERTSON: That is so.
GORDON J: I see.
MR GILBERTSON: Yes, that is so, your Honour.
KEANE J: Is it not a difference that the Dow Jones v Gutnick notion that publication occurs when material is downloaded and understood by the reader, taken up in Voller, in terms of publication being a dual concept that there is speaking and there is the audience, that understanding of publication does not seem to find its way into the discussion in Crookes v Newton. So, when we are talking about participation in publication, if one is assisting the audience rather than assisting the speaker, one can be assisting publication. That does not seem to be a feature of the discussion in Crookes v Newton.
MR GILBERTSON: No, your Honour is correct, it is not. In relation to the bilateral nature of the publication, it was pointed out by Justice Deschamps at paragraph [62], if I could take the Court to that paragraph – it is at page 426 of the joint book of authorities. Justice Deschamps says in [62]:
A reference, devoid of context, has never amounted in law to publication of the information to which it directs the third party. To so hold would be to disregard the bilateral nature of publication. Publication is not complete until someone other than the person referred to receives and understands the defamatory information.
So, to answer your Honour’s question, this is the only reference that I am aware of in relation to the point about the majority formulation does not take into account or disregards the bilateral nature of publication, but there is nothing I am aware of in relation to the defendant assisting the recipient of the information.
Finally, in relation to publication, the strict common law rule has not required modification with the advent of the telegraph, telephone, radio, television or the internet, and, in our submission, there should not be a separate rule for the providers of hyperlinks or a special rule. The circumstances in which hyperlinks could exist online is almost infinite.
I only wish to make one point in relation to innocent dissemination and it is this. In relation to the modified version of the dictum of Lord Denning that is advanced by the appellant in its written submissions, that is, setting out the imputations of concern and providing explanation as to why the imputations of concern cannot be justified or excused, in our submission that is unsound because it requires sufficient legal knowledge on the part of the complainant, not only as to the formulation of imputations but also as to any possible defence that might be available to the defendant. I wish to deal briefly with common law qualified privilege and statutory qualified privilege.
STEWARD J: Mr Gilbertson, I am so sorry, just before you go on that topic, and to raise a matter that Justice Gordon raised with Mr Walker, at paragraph 65 of Justice Richards’ judgment her Honour refers to Mr Dorey completing a removal request from the Google website. He then provided the full URL. Then there was a request from Google to him which prompted what appears on the next page, in the language there. Can I ask you, was it sufficient for Mr Dorey to just fill out the removal request and claim that something was defamatory?
MR GILBERTSON: To fill out the request and to provide the URL was sufficient.
STEWARD J: Thank you. So, on that basis, it does not matter to you that what was then subsequently supplied might have had inaccuracies?
MR GILBERTSON: Yes.
STEWARD J: All right.
MR GILBERTSON: In relation to common law qualified privilege, in our submission, the court below applied orthodox principles that:
the trial judge was correct to conclude . . . that the appellant failed to establish that:
a.it provided its services to its users as a matter of legal, social or moral duty . . .
b.the appellant had a community of or reciprocity of interest with the search users . . .
c.the automated interaction gave rise to a community of interest . . .
As we say in our written submissions – and I am not going to repeat all of it – but it is necessary to examine all of the circumstances of the case and it must be a communication to the particular person that is protected. Here, the evidence in the court below was that when a user enters a search query it is typically impossible for Google to predict exactly what that person is looking for and that in general Google strives to provide results that are related to all possible intents that the user may have. Secondly, her Honour found as a fact that the Underworld article was published to a small number of persons who accessed it out of idle interest or curiosity.
In relation to statutory qualified privilege, in our submission, the court below was correct to conclude the trial judge did not err in failing to conclude that all of the persons to whom the Underworld article was published had an interest or apparent interest in the subject of the article for the purposes of section 30(1)(a). The appellant’s reply at paragraph 11 says this:
No evidence was given at trial to directly support, or infer, any publication of the Underworld article beyond Melbourne and no finding to that effect was made by the trial judge.
The first part of that sentence is wrong, for reasons which I will explain. As for the contention that there was no finding to that effect by the trial judge, that is because there were admissions by the defendant.
If I could take your Honours to the respondent’s supplementary of further materials. This was exhibit P15 at the trial which consisted of two letters from the appellant’s solicitors – one dated 24 August 2017 and a second dated 28 September 2017 – and a table entitled “Defteros v Google LLC, in the Supreme Court of Victoria . . . document showing the number of search queries”. Your Honours will see at page 4 of the further materials, there is the 24 August 2017 letter. If your Honours go to the next page, which is page 5 in the further materials, your Honours will see a heading, “Categories 2, 4, 6”, et cetera, and it is said:
Without acceding to your arguments in your letter of 3 August 2017, the Defendant is prepared to admit, for the –
periods that are given:
broken down by month:
(a)the number of times individuals, who the Defendant’s systems have identified as being located in Australia, entered the query “george defteros” –
and, secondly, clicking on either of those URLs, which appear to be from the same website, but are the Underworld article. If your Honours then go to the next letter of 28 September, the effect of this letter was that on the receipt of a confidentiality undertaking, which was given, if your Honours could go to the schedule, paragraph 9, the effect of this offer and the confidentiality undertaking was that a document, as your Honours will see, at page 9:
A document setting out data, for the period December 2015 to February 2017 (inclusive), broken down by month, showing:
(c)The number of times individuals, who the Defendant’s systems have identified as being located in Australia –
That is the part I wish to emphasise:
entered the query “George Defteros” into Web Search (as defined in the Defence –
and there is then, in the next paragraph, a reference to:
The number of times that, after the query “George Defteros” had been entered and search results returned, the individual then clicked on either –
of the URLs. Her Honour referred to the admissions made by Google at paragraph 102, which is at page 46 of the appeal book, where the numbers have been totalled up. Your Honours will see:
Mr Defteros also relied on admissions by Google that, between February 2016 and December 2016, there were a total of 1,258 searches for the query ‘George Defteros’. Google also admitted that, over the same period, there were 184 clicks from the search results for ‘George Defteros’ through to the Underworld article.
So, whatever public interest there was in Victoria in relation to the activities of the Melbourne underworld in the first part of this century, in the first decade of this century, the publication went beyond Victoria, or at least was identified as being in Australia.
GORDON J: Does that follow through to 106 as well? Is that the same finding, just expressed in different language?
MR GILBERTSON: Yes. This is – …..up to 150, is that what your Honour means?
GORDON J: Yes.
MR GILBERTSON: Yes. This is part of that reasoning. If it pleases the Court.
KIEFEL CJ: Yes, thank you Mr Gilbertson. Yes, Mr Walker.
MR WALKER: May it please your Honours. Can I just deal with this last point first? Our surmise is that it is directed to vindicating a confinement of possible legitimate interest to people who are at the time of the search in Victoria, leave aside why misconduct in Melbourne is not possibly of interest to anybody outside Victoria. The point we would simply make is that it remains true what we have said - “in Australia” is not a phrase that excludes Victoria, but more to the point, it does not include every State or Territory of Australia. That is the first thing. Second, all the evidence in question concerning individuals was Victorians, the people in Victoria.
It is for those reasons, in our submission, that there, as we say, is just no evidence or findings that these 158-ultimate click‑throughs included click-throughs that occurred outside Victoria. The admission, so‑called, that is the provision of information in response to a request, responded to a question about “in Australia”. Everything that happens in Victoria happens in Australia.
Your Honours, the issue, so to speak, has been joined concerning some of the concepts and associated abstract nouns in the case law, including in particular, Chief Justice Kourakis’ preference for incorporation in Duffy. We, as your Honours know from our written submissions, would simply say this in reply to the way in which our learned friend called it in aid – called it in aid, as we understand it, directly in the sense of saying a hyperlink is to be seen as an act displayed to somebody who receives it in a search result which, there and then, incorporates whatever is to be found in the event that a person hits the hyperlink. I stress, “there and then” because we are talking about the conduct of Google as being conduct which, by a form of participation or involvement – or, if one must, facilitation - extends beyond the delivery of the search result, apparently, into what would happen if and when there is a hitting up on the hyperlink.
In our submission, there is little, if anything, to justify as a matter of common law this notion of incorporation which rather assumes the conclusion rather than demonstrate a way of reasoning towards it. Manifestly, it adds nothing by way of an understanding of communication having occurred, which is what is necessary for defamation, to say of a mere reference – be it in a printed bibliography or in a returned ranked Google search – there is nothing which makes practical sense by asserting that every reference incorporates everything contained in the material referred to.
It is an entirely unnecessary adding of conceptual confusion to the perfectly adequate description of what is happening, or has happened – namely, a reference has been given – and that is all. It would be impossible to explain the cases that for example are discussed, both in Duffy and in Crookes v Newton, if incorporation so crudely asserted was an answer for the supplies of references.
As we understand a distinction essayed by our friend’s argument – I am moving to another point – Crookes v Newton is not to be seen as a case of enticement but somehow our non‑defamatory snippet and supply of reference is – and I do not need to take your Honours to it, but you will recall the passage in her Honour’s reasons at trial, paragraph 62, core appeal book 38, which made claim – my words, not her Honour’s – how innocuous in themselves were the words contained by reference – as part of, I should say, and response to the search request.
On the other hand, if you look at the facts with which your Honours are familiar in Crookes v Newton, plainly there is something of a – I will call it a controversy or an issue or a matter of social import being raised by the post which refers to Canada’s deplorable law of defamation and names Mr Crookes as a person who is a plaintiff in that system, a politician, and without being at all cynical or frivolous, one can see why those interested in examining the social utility of the current state of the law of defamation and those who may have views about politicians resorting to it might – I will not use the word “enticed” - but might be interested to see what the mere reference to Mr Crookes might reveal. It was just a mere reference, as held truly appropriately by the Supreme Court.
In our submission, however, it rather points out that there is no distinction against us to be seen from the way in which the material appeared upon the – in Crooks v Newton reference in a post and, in our case, response to a search request.
With respect to the position of being a publisher only after notice, it is to be recalled that there is some linguistic elision contained in the way in which the record appears below of the presentation of the issue of publication. By way of example, in the trial judge’s reasons at 134, core appeal book 53 to 54, I do not need to read it, but what your Honours will there see, familiar after, if I may so, the correction in Voller, is this elision of the concept of publication and publication for which, after an examination of innocent dissemination and its benefits to a defendant, you are not liable because it is plain from that exposition of the way which the case was put that it was not, as might at first appear from the beginning of that paragraph, put that we were not a publisher at all until after a reasonable time expired following notice, but rather that we were not a liable publisher because it was conceded that beforehand, as an innocent disseminator – meaning, of course, as a subordinate publisher – we had a defence. So, it is shorthand in an acceptable but not always entirely accurate sense.
EDELMAN J: Is that the same with appeal book 93, paragraph 290, subparagraph (a)?
MR WALKER: Yes. It follows that when her Honour – your Honour is talking about the assessment of damages for publication?
EDELMAN J: Yes.
MR WALKER: Yes, so that is publishing. So, when her Honour finds, in a number of places, published from a particular date, those are findings saying liable as a publisher because the position of innocent disseminator which had previously existed – you being a subordinate publisher - had come to an end. For example, in the book at 39, paragraph 64, under the heading “Dates of publication”, it is plain that what is being referred to is the position of being a subordinate publisher from the beginning but protected by innocent dissemination until a reasonable time after notice. That is the sense in which it is being used.
There was no case concerning not being a publisher at all until after a reasonable time following the notice. In relation to that, in any event – and for more abundant caution – and noting again that there is no notice of contention about any of this – there is no analysis below of these matters. But there was no change in our conduct before and after the notice with respect to what it is we have done, of any relevance to communication.
We certainly did not display anything, still, and one needs to be careful, with respect, not by the back door to introduce, in some odd way, an element of intentionality foreign to the strict liability clarified in Voller so as to make people liable in some kind of obscure erection of a duty to act to protect somebody from something harmful in a way which would not pass muster in the law of negligence, particularly as to the imposition of a duty of care, and certainly finds no footing in the current law of defamation.
It cannot be that people who are in a position, for example, by the exertion, say, of some hierarchy of control, in general terms, such as employment, that they can be held liable in defamation because they did not tell their employee that their job would be in danger if they continued, in their social life, to defame a person. It would be absurd to suppose that being in a position to prevent harm continuing means there is a duty to do so. That would be inimical to basic principles in the law of negligence and, in any event, it would be most confusing and inappropriate to introduce basal concepts of the law of negligence into the law of defamation. At the risk of repetition, that would be at odds with strict liability.
May I make this one response to your Honour Justice Gleeson’s comment to my friend that for your Honours’ part the tradesman clamping down the press, be he or she ever so humble, being held to be a publisher, an old case innumerable times repeated in treatises and authorities, that your Honour would prefer not to see such a person as a publisher so much as a person who in the eyes of the law is responsible for publication, may I respectfully suggest that the reconciliation of it without dismissing out of hand that old retainer is that a person is a publisher who, notwithstanding not administering the final blow, to use the murder analogy, has acted in such a way – and then one calls up the words “participation”, “assisting”, et cetera – one gingerly inserts the word “intentional” or “voluntary” and understands where that does not go, that is, as to meaning, et cetera – is to be responsible for the publication.
So that you do not start with publisher; you end with publisher. So, anybody who is responsible for publication is in the eyes of the law to be called a publisher. The fact is a proper pleading would use that word “published” but would also plead the material facts which make that out, or not.
EDELMAN J: But they are rules of attribution, are they not?
MR WALKER: Yes, they are rules of attribution.
GLEESON J: Is it not significant in that context that the tradesman is part of the enterprise?
MR WALKER: Yes, absolutely significant, like the man who wheels the newspapers into the truck. On the other hand, nice questions may or may not arise which do need case‑by‑case factual exploration with what I am going to call the independent contractor truckie who delivers a mixed cargo to a country town and delivers a pallet of Coke as well as a bundle of newspapers to the milk bar.
I am not saying that there is a prima facie answer to that question. That will be a different matter. It will not arise in practice, because why on earth would you sue them if you can sue Fairfax’s and, more to the point, would that not be an innocent disseminator or would you really undertake the forensic exercise of asking whether on a break on the trip the driver opened up the pack of newspapers and read and therefore appreciated the content of the offending article? These are unreal.
GLEESON J: I am hesitant, but the word “dissemination”, it seems to me, to some extent makes the point that although you have a bilateral concept of publication, at the end of the day one side matters more than another and those who are involved in the process of disseminating from the author perhaps have a greater degree of association than those who are going out seeking on behalf of the reader.
MR WALKER: Yes, very much so. I am going to call that in aid with a reply to matters that your Honour Justice Keane raised with my learned friend. It is not, with respect – Crookes v Newton is not, with respect, a report of reasons devoid of an appreciation of the bilateral nature of the conduct which is communication by which a defamation is committed. The uncontentious fundamentals referred to, for example, in her Honour’s paragraph 29 would be enough to illustrate that.
You will not find, I do not think, the epithet “bilateral” but the notion of communication – which is, by definition, bilateral – if not multi‑lateral – but, certainly, relevantly, bilateral – that explicitly appears in the foundations for what follows for the question which was in issue in that case. Paragraph 19 also contains similar implications.
But the matter we want particularly to address has been touched upon by what Justice Gleeson has most recently said to me. One should not too readily engage a person as a liable publisher, either liable primarily or liable contingently as a subordinate publisher who may or may not make out innocent dissemination, simply because it can be seen as a matter of ordinary English that that person’s conduct, perhaps the provision of services, as in this case, assisted in the accomplishment of the communication – assisted in the accomplishment of the publication, and I stress that form of the word, “publication”.
Rather, the inquiry, in order to place that person in the defendant’s file, as opposed to the plaintiff’s, is to ask whether here is voluntary engagement in assisting in publishing, that is, the gerundival description of what one side of the bilateral communication has engaged in, the person who publishes to another, who is never a publisher simply because they are a party to publication. There is publication to which, bilaterally, they are both parties. One is a publisher, the other, I hope this is a barbarous coinage that will not go anywhere, is a publishee, to use legal jargon.
Now, your Honours, if you are assisting the publishee, you really are not to be seen, for the purposes of something as drastic as an imposition upon search engines of liability, even if only so‑called prima facie liability, you are not assisting the publisher, and by that of course, I mean, in this
case, The Age, incontestably. They are not sued, incontestably, the publisher.
That is why, if you assist a member of the audience, you are not assisting in the publishing, any more than the audience is assisting in the publishing and therefore commits the paradoxical absurdity of defaming themselves – sorry of defaming the person about whom they read the damaging material and have their opinion of that person lowered.
Finally, your Honours, with respect to what my friend has put this afternoon concerning the reciprocity of duty and interest for qualified privilege, I need hardly remind your Honours that there was no formal requirement of public law at play in Bashford. In our submission, everything necessary for that part of the doctrine is supplied by the estimable and valuable service held out by Google as a search engine for the immensely valuable – beyond compare valuable resource of everything to be found on the net. It is for those reasons, in our submission, that that side of the reciprocal relationship is, and should be, emphatically held to be made out in this case.
May it please your Honours.
KIEFEL CJ: Thank you, Mr Walker.
The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow.
AT 3.05 PM THE MATTER WAS ADJOURNED
Key Legal Topics
Areas of Law
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Abuse of Process
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Discovery
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Jurisdiction
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Privilege
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Standing
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