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

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] HCATrans 77
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Google LLC against a decision of the Federal Court of Australia concerning allegations of defamation. The dispute arose from the publication of allegedly defamatory material on Google's search engine, which Mr. Defteros claimed had caused him harm. Mr. Defteros had initiated proceedings against Google in the Federal Court, alleging that Google was liable for the defamatory content.

The central legal issue before the High Court was whether Google, as the operator of a search engine, could be held liable for the publication of defamatory material that appeared in the search results. Specifically, the Court had to determine the scope of Google's responsibility and whether it could rely on defences available to mere conduits or publishers of information. The Court also considered the application of the *Uniform Defamation Laws* to online search engine results.

The High Court ultimately held that Google was not liable for the defamatory material. The Court reasoned that a search engine, by its nature, aggregates and presents information from third-party websites without creating or endorsing the content itself. It distinguished the role of a search engine from that of a publisher who actively chooses to disseminate defamatory material. The Court applied principles of defamation law that recognise the distinction between the provider of a platform and the creator or disseminator of content, finding that Google's automated process of indexing and displaying search results did not amount to publication in the legal sense required for defamation. The appeal was allowed.

Orders