Google Dodges a Bullet

Take this example:

You're a criminal defence lawyer in Melbourne and some of your past clients have been underworld figures like Mick Gatto. You get investigated for conspiracy in a murder, charged, but then the charges are dropped by the Director of Public Prosecutions. Years later, you Google search for yourself; the results include old media articles from around the time of the charges, claiming that you're an underworld figure and of ill repute. You claim you've been defamed and your reputation tarnished because Google keeps making these links available to people, and sue.

This is (roughly) the situation in Google LLC v Defteros, where Mr Defteros is suing Google for "publishing" defamatory material. However, Google has been thrown a lifeline after two losses in court.

In both the initial decision of the Victorian Supreme Court, and later on appeal, the courts ruled that Google making the information available on their website was "publication" - which meant that they may be held liable (in this case, to the amount of $40 000.00 in damages.)

However, the High Court has upheld an appeal from Google that its search engines are a reference index to make it possible to find material - not publication of the material by Google.

"As the trial judge found, navigating the Web can be a challenge. Search engines assist in that process. But the analogy drawn by her Honour between a search result and a librarian handing over to a library user a book marked at a particular page is problematic, not the least because a search result is only one of a number of responses to an enquiry, as was the case here. Properly understood, a search result conveys to the person searching that they may be interested in one or more of the results. The person is not directed to a particular result, ... results are ranked by the use of an algorithm having regard to relevance using "signals" or clues as to what the person searching is looking for according to the words used in their enquiry. The search result merely refers, in the sense of drawing attention, to a webpage. As Abella J pointed out in Crookes v Newton[68], there is a difference between drawing a person's attention to the existence of an article and communicating its content. And whilst it may be said that the use of a hyperlink may mean The Age gains a reader, that does not make the appellant something other than a reference provider." - Kiefel CJ and Gleeson J at [50]

However, it should be pointed out that the case did turn on its particular facts - and the Court was not unanimous in this 4-3 decision. Dissenting judge Justice Gaegler pointed out that:

"...Google's argument lies in its downplaying, or indeed denial, of the significance of the circumstances in which Google brings its users and The Age together. The publication of defamatory material, which occurred when a user of Google's search engine gained access to the Underworld article, occurred by reason of the assistance intentionally provided by Google in the course of its business. That publication would not have occurred but for Google's facilitation (save for the rare case where a person may directly access a webpage by its URL)."

As a result, Google may have dodged a bullet on this occasion - but it far from certain that it will be able to dodge them in future.

Full High Court Judgement available here: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2022/27.html