Google v Defteros: High Court refines defamation law over hyperlinks

Key points:

  • The publication of a link to an Internet page of a third party cannot incur liability for defamation of the content of this Internet page.
  • The making available of defamatory messages on social media pages could constitute publication for the purposes of defamation law.

The Google versus Defteros decision

Providing hyperlinks as a search result to potentially defamatory material does not necessarily expose search engines or other website owners to the risk of a defamation claim, the High Court has found, in another recent decision clarifying defamation law in the age of online media.

But companies should always exercise caution when linking to materials on other websites, as the context in which the hyperlinks are provided can still create grounds for defamation suits. If a search result or hyperlink contains material that would direct, induce or encourage someone to click on the link, such as a “sponsored link”, the company providing such link may be considered a publisher of that underlying material.

In Google LLC v Defteros [2022] HCA 27 (Defteros), the High Court held by majority that Google was not liable as a publisher for including in its search results a hyperlink to a defamatory article.

The ruling in the Defteros case follows another recent High Court ruling regarding the extent of liability for online defamation. In Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (Voller), the Court ruled by a 5-2 majority that online news publications could be held liable for defamatory posts on the social media pages they controlled.

Both decisions concern what it means to be a “publisher”, which is a technical concept under defamation law. A defendant cannot be held liable for defamatory material unless it is established that he published the material.

While the majority in Voller concluded that when news outlets allowed readers to post comments on articles on social media pages, those news outlets became the publisher of those comments for defamation purposes, in Defteros a majority concluded that the inclusion of hyperlinks to defamatory articles in a list of search results did not make Google a publisher.

The appellant cannot be said to have been involved in the communication of the defamatory material with reference to the circumstances in Webb v. Bloch and Vollerwrote Kiefel CJ and Gleeson J at [49], in reasons agreed by Gageler J., Edelman and Steward JJ. also agreeing with the orders. Webb v Bloch (1928) 41 CLR 331 is considered the classic publication case under Australian libel law.

Defteros concerned the Victorian barrister, George Defteros, who practiced criminal law. Mr Defteros represented well-known people in Melbourne’s ‘gang wars’, including Mick Gatto and Mario Condello. Mr. Defteros and Mr. Condello were charged with the offenses in 2004, but those charges were dropped the following year. In the meantime, however, the Age published an article titled “Underworld loses a precious friend at court.”

In the Supreme Court of Victoria, Richards J found that this article carried the defamatory charge that Mr Defteros had crossed a line and become a friend and confidant of criminal elements, rather than a professional lawyer ( Defteros v Google LLC [2020] VSC 219 (April 30, 2020)).

Richards J also discovered that the imputation had also been forwarded or published by Google, when Google included a hyperlink to the article The Age in the title of the article which appeared following a search for the name by George Defteros.

After the Court of Appeal upheld the decision of Richard J (Defteros v Google LLC [2021] VSCA 167 (June 17, 2021), Google appealed to the High Court. The appeal was based in part on the ground that the Court of Appeal erred in finding that Google published the defamatory material.

In three judgments, Kiefel JC and Gleeson J, Gageler J and Edelman and Steward JJ allowed Google’s appeal.

Kiefel CJ and Gleeson J wrote:

“[Google] has not approved the writing of defamatory statements for publication. He did not in any way contribute to the publication of the Underworld article on The Age’s webpage. It did not provide a forum or place where it could be posted, nor did it encourage the writing of comments in response to the article that might contain defamatory material. Contrary to the finding of the trial judge, the appellant did not contribute to the communication of the Underworld article. It has helped people searching the web to find and access certain information.

But in His Honor’s concurring judgment, Judge Gageler nonetheless hinted that there might be circumstances in which providing a hyperlink could constitute publication for defamation.

“Accepting that the provision of a hyperlink is not sufficient to amount to participation in the publication process which ends when a third party clicks on the hyperlink in order to consult the web page is not to deny that the providing a hyperlink may combine with other factors to amount to participation in that process of posting content to that other web page,” Gageler J wrote at [66].

“The late 19th century English Court of Appeal decision in Hird v Wood – treating as an editor a man seated on a stool smoking a pipe and continually pointing to a sign in order to draw the attention of passers-by to the writing on the placard – illustrates that the taking of an action which calls the attention of a third party to the availability of a material in a manner which has the effect of inducing or encouraging the third party to take a action which has the effect of making such material available for his or her understanding may be sufficient to amount to participation in the publication of such material. Whether a particular action amounts to inducement or encouragement of this nature is rightly described as a matter of “fact and degree” [66].

In Vollerit was relevant that the media companies created the social media pages on which the defamatory comments were posted and took advantage of the public interest in those pages.

In Defteros, the majority singled out Google’s involvement in the communication as defamatory material. “Google does not, simply by providing the search result in a form that includes the hyperlink, direct, induce or encourage the searcher to click on the hyperlink“wrote Gageler J to [74].

Justices Keane and Gordon disagreed with the majority. In separate decisions, the two found that Google was a publisher of Age’s defamatory article.

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