Google Llc v Defteros

• Jurisdiction: Australia Federal only
• Court: High Court
• Judgment Date: 17 August 2022
• Neutral Citation: [2022] HCA 27
• Year: 2022
• Docket Number: M86/2021

Google Llc

Appellant

and

George Defteros

Respondent

[2022] HCA 27

Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ

M86/2021

HIGH COURT OF AUSTRALIA

Defamation — Publication — Where appellant operated internet search engine — Where search engine produced search results to users in response to user-designed search queries through use of computer programs and algorithms — Where each search result relevantly comprised title of webpage, snippet of content, and hyperlink to another webpage on World Wide Web — Where inputting respondent's name into search engine returned search result (“Search Result”), which included hyperlink to article published on newspaper's website containing matter defamatory of respondent — Where defamatory matter not reproduced in Search Result — Whether appellant “publisher” of defamatory matter — Whether providing Search Result amounted to act of participation in communication of defamatory matter to third party.

Words and phrases — “act of participation in the communication of defamatory matter to a third party”, “content-neutral”, “defamation”, “Google search engine”, “googling”, “hyperlink”, “incorporation”, “incorporation by reference”, “instrumental in, or contributes to any extent to, the publication of defamatory matter”, “internet search engine”, “lends assistance to the publication”, “mere reference”, “navigate information on the World Wide Web”, “publication”, “publisher”, “search engine”, “search query”, “search result”, “search terms”.

Representation

B W Walker SC with G L Schoff QC and C L Alden for the appellant (instructed by Johnson Winter & Slattery)

D P Gilbertson QC with J A Castelan and E H Guthrie for the respondent (instructed by Defteros Lawyers)

ORDER

• 1. Appeal allowed.

• 2. Set aside order 2 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 17 June 2021 and, in lieu thereof, order that:

  • (a) the appeal be allowed;

  • (b) order 1 of the orders of the primary judge made on 6 May 2020 be set aside and, in lieu thereof, it be ordered that there is judgment for the defendant; and

  • (c) order 1 of the orders of the primary judge made on 3 June 2020 be set aside.

• 3. The appellant pay the respondent's costs of the appeal.

1 Kiefel CJ and Gleeson J. The respondent, George Defteros, is a solicitor who has practised criminal law for many years. In the course of that practice he has acted for persons who became well-known during Melbourne's “gangland wars”, including Dominic (“Mick”) Gatto and Mario Condello. In 2004, the respondent and Mr Condello were charged with conspiracy to murder and incitement to murder Carl Williams and others and were committed to stand trial. In 2005, the Director of Public Prosecutions withdrew the charges against the respondent. In the intervening period the prosecution of the respondent and Mr Condello was widely reported, including in The Age newspaper, and articles were placed on that newspaper's website.

2 The appellant, Google LLC, makes available to those seeking to navigate information on the World Wide Web its search engine. In early 2016, the respondent became aware that an internet search of his name using the Google search engine produced search results which included a snippet of an article published by The Age in 2004, on the day after the respondent was charged. This was termed the “Search Result” in the proceedings below. The title of the article, displayed in the Search Result, contained a hyperlink to the full article on The Age's website. The article was entitled “Underworld loses valued friend at court”. In the proceedings below it was referred to as the “Underworld article”. Together, the Search Result and the Underworld article were said to comprise the “Web Matter” which the respondent claimed defamed him.

3 In proceedings brought in the Supreme Court of Victoria, the respondent claimed damages for defamation from the appellant as publisher of the Web Matter. The appellant denied publication. It relevantly pleaded, in the alternative, both the common law and statutory defences of innocent dissemination and qualified privilege 1.

4 The trial judge, Richards J, found that the appellant had published the Web Matter, based on her Honour's view of the significance of the insertion of a hyperlink to The Age website in the Search Result 2. Her Honour found that the Web Matter conveyed the defamatory imputation that the respondent had crossed the line from being a professional lawyer for, to become a confidant and friend of, criminal elements 3. Only the defence of statutory qualified privilege was made out and only with respect to a substantial proportion, but not all, of the persons to

whom her Honour found the Web Matter had been published 4. Her Honour awarded the respondent general damages of $40,000 and later made further orders for interest and costs, the latter reflecting the “mixed success” of the parties in the proceedings 5

5 The action concerning the Web Matter was heard by the trial judge together with an action brought by the respondent with respect to other material which it was alleged was later published by the appellant and which was also said to be defamatory of him. That second action was dismissed.

6 Relevantly to this appeal, the appellant sought leave from the Court of Appeal to appeal the judgment in respect of the Web Matter; and the respondent sought leave to cross-appeal in relation to the costs order for the same 6. The parties also filed applications and cross-applications for leave to appeal in respect of the second action 7. The Court of Appeal (Beach, Kaye and Niall JJA) granted both applications for leave to appeal but dismissed the appeals. It also dismissed both cross-applications for leave to appeal in relation to costs 8.

The appeal to this Court

7 The appellant appeals to this Court from that part of the judgment given by the Court of Appeal on 17 June 2021 concerning the Web Matter, pursuant to a grant of special leave to appeal which was conditional upon the appellant paying the respondent's costs of the appeal and not seeking to disturb the costs orders in the courts below.

8 The appellant's original Notice of Appeal contains three grounds. The first and principal ground is that the Court of Appeal was wrong to conclude that the appellant published the Web Matter. The second and third are that the Court of Appeal was wrong to reject the appellant's defences of common law and statutory qualified privilege. At the outset of the hearing of this appeal, the appellant was given leave to amend its Notice of Appeal to add a further ground – that the Court of Appeal was wrong to have rejected its defence of innocent dissemination at common law and pursuant to s 32 of the Defamation Act 2005 (Vic).

9 It will not be necessary to consider the grounds relating to the defences. Applying the settled principles of the common law of defamation concerning the communication of defamatory matter and participation in it, it cannot be concluded that the appellant, by providing the hyperlink, published the Web Matter.

The operation of the appellant's search engine

10 In essence, an enquiry made using the appellant's search engine may elicit a number of results in response which, for each entry, have in common these features: the title of the webpage referred to in the entry; the Uniform Resource Locator (“URL”) associated with the webpage; and a snippet of the content from the webpage (or an image). A hyperlink is provided in the title. When the user clicks on it, the webpage appears on the user's web browser.

11 The trial judge described the operation of, and results obtained from, the appellant's search engine in the context of the World Wide Web by reference to the evidence given at the trial. The accuracy of her Honour's description was not disputed by the parties and the description was adopted by the Court of Appeal. It is convenient to take the same course. Her Honour explained that 9:

“The World Wide Web is a vast system of linked documents accessed by the internet. It comprises trillions of pages generated by millions of people and organisations worldwide, and is constantly changing and expanding.

Each webpage has a unique Uniform Resource Locator or URL, which acts as an address for that webpage. The code commonly used for creating webpages is called HyperText Markup Language or HTML. The HTML code of a webpage is read by a software program called a browser, which displays text and images to a user on the user's device.

A webpage typically contains hyperlinks to other webpages. A hyperlink is some HTML code that contains a URL for another webpage. When a user clicks on a hyperlink on one webpage, the browser on the user's computer displays text and images from the other webpage. It is the myriad of hyperlinks between webpages that makes the Web what it is today.

The Web is something like a constantly growing, rapidly changing, vast digital library, and navigating it can be a challenge. It is easy enough to find a particular website if one knows the URL for the website. A user can type that URL into the browser's address bar, and can then follow hyperlinks within the site or use the site's search function. Similarly, a user

who knows the exact URL for a specific webpage can type that in to the browser's address bar, and be taken directly to the webpage. However, users who do not know the URL for the webpage containing the information they seek need other tools to find their way around.

One popular tool for locating information on the Web is a search engine, which is an automated information retrieval system designed to allow a user to navigate the extensive information on the Web by the use of user-designed queries. The Google search engine is one of a number of search engines that are available; two other well-known...