When is an online publisher a publisher?

In the recent case of Google LLC v Defteros [2022] HCA 27 (Google LLC v Defteros), the High Court held that Google LLC was not a publisher of defamatory content by providing search results containing hyperlinks to a defamatory article.

This is at odds with the finding of the High Court in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 25 (Fairfax vs. Voller), rendered in September last year, in which the High Court ruled that anyone who hosts or facilitates online or social media content can be held liable for defamatory statements made by others. So what is the difference?

Google versus Defteros

On August 17, 2022, the High Court (5-2) allowed an appeal from a judgment of the Supreme Court of Victoria Court of Appeal in Google LLC v Defteros. The appeal concerned whether the appellant, Google LLC, published defamatory material by operating an Internet search engine which, in response to a user-crafted query, returned search results that included an excerpt of content and a hyperlink to a web page containing a defamatory article. .

In 2016, the respondent, Mr. Defteros, realized that if he “searched” his name on Google, a hyperlinked article published in 2004 by The Age newspaper appeared as a search result. Mr Defteros alleged the article defamed him, as it suggested he had crossed professional boundaries as a criminal defense lawyer by becoming a “confidant” to criminals. The trial judge found The Age article to be defamatory of Mr. Defteros. This finding was not challenged on appeal and Google LLC did not remove the search result at Mr. Defteros’ request. As a result, Mr. Defteros sued Google LLC, alleging that it published the defamatory statement.

Google LLC maintained that the article was not written by an employee or agent of Google, but by a journalist from an independent newspaper, unaffiliated with the company.

High Court Findings

The majority of the High Court found that Google LLC was not a publisher in the defamatory case because it did not assist The Age in communicating defamatory material to third-party users. The generation of organic search results, which included a hyperlink to a defamatory article, did not imply publication of that link by Google LLC. The publication of the defamatory statement involved an act of an independent user clicking on the link and going to the page. The High Court viewed the search results as mere facilitation of access to the article and not as an act of participating in the two-way process of communicating the content of this article to a third party.

Excerpt content

The High Court left open the question of whether Google LLC would be considered the publisher of a defamatory matter if Google LLC’s search results contained extracts of the defamatory matter. As stated by Kiefel CJ and Gleeson J, “it was not suggested by the courts below that the appellant, as an Internet search engine operator, actually communicated the defamatory material. It is of course possible that the search results themselves contain defamatory statements. …But this is not the case.”

Judges Edelman and Steward found the excerpt from The Age article to be “encouraging the reader…to click on the hyperlink for more information.” They also stated that “a clear distinction must be maintained between the act of publishing the selection of search results and snippets, which the appellant does, and the act of transmitting material on web pages of third”.

Sponsored Posts

The High Court also left open the possibility of a different result if Google LLC’s search results produced a sponsored post linking the user to The Age article. Gageler J said that unlike Google Inc v Duffy,[1] no feature of the content of the search result in this case was found to have functioned as an “inducement or inducement to click on the hyperlink”.

Fairfax vs. Voller

Our previous discussion on Fairfax vs. Voller can be found here. In short, Mr. Voller alleged that media organizations that maintained Facebook pages and allowed people to comment on posts on those Facebook pages were responsible for defamatory messages about Mr. Voller’s incarceration in a youth detention center written by these third-party Facebook users.

The High Court has found that anyone who hosts or facilitates content online or on social media can be held liable for defamatory statements made by others. It was found that by operating Facebook pages, media groups participated in the communication of any defamatory material posted by third parties and were therefore liable for such comments.

The difference

The difference between the Google LLC case and the Voller case is that the court held that Google did not provide a forum or place where a defamatory statement could be posted and did not encourage the writing of a comment. in response, while media owners who backed Facebook Pages were said to have “invited and encouraged comments on posts from Facebook users”.

Take away food

Google LLC v Defteros suggests that search engines may be held liable for posting snippets containing defamatory material and sponsored search results, but will not be liable if their search results link to defamatory material.