Google LLC v Defteros - [2021] HCATrans 216

[2021] HCATrans 216

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M46 of 2021

B e t w e e n -
GOOGLE LLC
Applicant
and
GEORGE DEFTEROS
Respondent
Application for special leave to appeal

KIEFEL CJ
KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON FRIDAY, 10 DECEMBER 2021, AT 10.30 AM

KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR B.W. WALKER, SC appears with MS G.L. SCHOFF, QC and MS C.L. ALDEN for the applicant. (instructed by Johnson Winter & Slattery)

MR D.P. GILBERTSON, QC appears with MR J.A. CASTELAN and MR E.H. GUTHRIE for the respondent. (instructed by Defteros Lawyers)

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: May it please your Honours. The questions that we submit arise worthy of a grant of special leave are those set out, as your Honours know, at page 249 of the application book. Adopting that sequence, it is the first of those questions concerning the provision of what I will call a neutral, that is, itself not conveying any defamatory matter, hyperlink, is the threshold issue.

Since the papers in the special leave application were completed, of course, this Court’s decision and reasons in Voller are to hand and, in relation to it, may we go directly to a question of what we submit is importance to the development and, to the extent it be appropriate, the conformity of the common law internationally.

As, your Honours appreciate it, we relied unsuccessfully below on the approach that had been taken in Canada in Crookes v Newton. The way in which we failed in that argument below, in our submission, is at odds with what on another but not completely unrelated issue, attracted from this Court approbation of Crookes v Newton.

In paragraph 90 of Voller, your Honours will recall that Justices Gageler and Gordon explicitly referred to the impliedly desirable substantial conformity of the common law of Australia with what was there described as the strongly reasoned common law decision, among others, of Crookes v Newton.

Now, of course that was a different aspect of the diverse problems that arise by reason of what might be called the digital universe as a mode of communication and the assembly of and access to knowledge. But, in our submission, it is sufficiently related, thematically and part of a scheme of a satisfying regime, that that reference alone in Voller, from two members of the majority to Crookes v Newton, justifies this Court considering whether or not the Court of Appeal was correct in the approach it took to the persuasive force of the reasoning in Canada.

EDELMAN J: Mr Walker, is the aspect of Crookes v Newton upon which you rely – or the essence of it – that a hyperlink is always to be regarded as mere facilitation?

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Google LLC v Defteros

Details

AGLC: Google LLC v Defteros [2021] HCATrans 216
Case: [2021] HCATrans 216
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Google LLC against a decision of the Full Federal Court of Australia concerning allegations of defamation. The dispute arose from the publication of search results by Google, which the respondent, Mr. Defteros, alleged defamed him. Mr. Defteros claimed that Google was liable as the publisher of the defamatory material.

The central legal issue before the High Court was whether Google could rely on the defence of innocent dissemination, a defence available to those who are not the author, printer, or publisher of defamatory matter, but who are merely distributors. Specifically, the Court had to determine if Google, in its capacity as a search engine operator, qualified as a "distributor" for the purposes of this defence, and if so, whether it had taken reasonable care and did not know, and could not by reasonable inquiry have ascertained, that the matter was defamatory.

The High Court held that Google's automated search engine, which indexes and presents information from the internet, did not constitute "publication" in the traditional sense that would attract liability for defamation. The Court reasoned that Google's role was akin to that of a conduit or index, rather than a publisher actively disseminating defamatory content. The defence of innocent dissemination was therefore not applicable because Google was not considered a publisher in the first instance. The Court found that the search results were not published by Google, but rather by the third-party websites on which they appeared.

The High Court allowed Google's appeal, setting aside the judgment of the Full Federal Court.

Orders