Australia’s High Court says Google is not a publisher in landmark defamation decision

Global search giant Google is not responsible as a publisher for serving up links to defamatory material, Australia’s High Court has ruled.

The landmark decision overturns exisiting rulings by the Victorian Supreme Court and its Court of Appeal involving a $40,000 damages award against Google to Melbourne lawyer George Defteros for a hyperlink to an article published by The Age in 2004.

Defteros launched a defamation case against Google in 2016, and won in 2020 after the search engine refused to take down the link to The Age article, which cited criminal charges against Defteros for conspiracy and incitement to murder underworld figures laid in 2005, but dropped 12 months later.

The lawyer sought damages under defamation law from Google as publisher of the Search Result and what was referred to as “the Underworld article”.

After losing both the case and appeal, Google took the matter to the High Court, arguing that it was simply a facilitator, much like a phone company, rather than publisher.

The High Court, by majority before the full bench of all seven Justices, found that Google was not a publisher of the defamatory material.

A majority held that the appellant did not lend assistance to The Age in communicating the defamatory matter contained in the Underworld article to the third party users of Google.

The provision of a hyperlink in the Search Result “merely facilitated access to the Underworld article and was not an act of participation in the bilateral process of communicating the contents of that article”.

Google had not participated in the writing or disseminating of the defamatory matter, a majority of the High Court decided.

Chief Justice Susan Kiefel and Justice Jacqueline Gleeson wrote a joint judgment that said: “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.”

In upholding Google’s appeal, the Justices said that while search results could contain defamatory material, that was not the case in this instance.

“The inclusion of words or phrases accompanying the hyperlink does not, with great respect, evidence or demonstrate an adoption of, or an assumption of responsibility for, the contents of a given webpage – unless some language of adoption or words that show the taking of responsibility are displayed in the search result,” they said.

“No such language or words may be found in the search result for the Underworld article.”

Providing a search result, including a hyperlink, has no connection to the creation of the article, the Court ruled.

“Its creation was in no way approved or encouraged by the [Google]; and the appellant did not participate in it being placed on The Age’s website,” Kiefel and Gleeson wrote.