A majority of High Court judges ruled on Wednesday that Google was not the publisher of a defamatory article by age about a Victorian barrister because it was a search engine that only provided hyperlinks to that content.
“In reality, a hyperlink is just a tool that allows a person to navigate to another web page,” said a joint statement from Chief Justice Susan Kiefel and Justice Jacqueline Gleeson.
Google took the case to the High Court after the Victoria Court of Appeal in 2021 refused its attempts to overturn a libel ruling in favor of George Defteros, a lawyer for prominent underworld figures.
The Victoria court found that Google was the publisher of a defamatory article by age in 2004 because its search results helped communicate the content to readers.
The US-based search engine argued that providing a hyperlink to a story did not constitute publication and therefore was not defamation.
Google has warned it could be forced to censor its search results if the top court upholds the Court of Appeal’s decision, which would have a “devastating” impact on the way the internet works.
Five out of seven High Court judges ruled in favor of Google, saying it didn’t help age communicate the story to third-party users and said the search engine results “just made it easier to find” the story.
“There was no other basis for finding publication because the appellant [Google] did not participate in the writing or dissemination of the defamatory statement,” the summary of the judgment reads.
The court rejected Defteros’ claim that the search results “attracted” the person searching the website, finding that a person would already be searching for information before the result was received.
In a separate statement, Judge Stephen Gageler noted that while he agreed with Justices Kiefel and Gleeson, the case differed from a sponsored link where Google received advertising revenue.
Judges James Edelman and Simon Steward said the appeal case did not ask the court to decide whether its conclusion would be different if the hyperlinks were paid to be promoted on Google.
They agreed that Google had “no involvement” in publishing the article.
Judges Patrick Keane and Michelle Gordon said they would have dismissed Google’s appeal.
Defteros had clients including mobsters Alphonse Gangitano and Mario Condello, and underworld identity Mick Gatto.
He was charged, alongside Condello, with conspiracy and incitement to murder killer Carl Williams, his father George and another man.
These charges were later dropped and Defteros successfully sued Google in 2016, alleging its publication of an article by age of his arrest for conspiracy and incitement to murder had defamed him.
Google was notified of the defamatory article in February 2016, 11 years after it was published, but did not remove it until December of the same year.
In 2020, Supreme Court Justice Melinda Richards ruled that the article implied Defteros crossed a line from professional attorney to confidant and friend of criminal elements and ordered that he be awarded $40,000 in damages.
Defteros was ordered to pay Google’s appeal costs.