On 17 August 2022, the High Court delivered its judgment in Google LLC v Defteros [2022] HCA 27, with a majority of the Court (5:2) ruling that Google was not a “publisher” of a defamatory news article that was hyperlinked in organic search results.
In allowing the appeal, the majority found that, in circumstances where Google did not participate in the writing or dissemination of the defamatory article, the provision of the hyperlink merely facilitated access to the article. Google neither “lent assistance” to the original publisher, nor did it participate in any “bilateral process” of, communicating the article to third-party users.
The decision provides further clarity on the law of online publication following Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 (Voller), handed down in September 2021. There, a majority of the Court held that the acts of media companies in facilitating, encouraging and thereby assisting the posting of comments by Facebook users rendered those companies as “publishers” of the comments. You can view our Insight on the decision here.
Accordingly, the High Court has settled a principle that merely hyperlinking an organic search result alone will not result in a publication of a third party’s defamatory publication. However, in doing so, the High Court has invited contextual scrutiny to be given to the circumstances in which material is disseminated (and hyperlinked) online.
The organic search result and hyperlink
In 2004, The Age newspaper published an article on its website entitled “Underworld loses valued friend at court”. The article concerned the respondent, a solicitor practising in criminal law, being charged with conspiracy to murder and incitement to murder certain Melbourne gangland figures. The criminal charges were subsequently withdrawn by the Director of Public Prosecutions in 2005.
In 2016, the respondent became aware that entering his name into Google’s search engine returned a snippet of the article and its hyperlinked title in its search results, which upon clicking would direct a user to the full article on The Age’s website. The respondent subsequently commenced defamation proceedings in the Supreme Court of Victoria, alleging that Google was the publisher of the article and search result (together, the Web Matter).
At first instance, the trial judge concluded that Google had published the Web Matter as the provision of the search result assisted in the article’s publication. This finding was not disturbed by the Victorian Court of Appeal, who allowed but ultimately dismissed Google’s appeal.
Google sought, and was granted, special leave to appeal in relation to those parts of the Court of Appeal’s judgment regarding the Web Matter, with the matter heard before the Full Court on 3 May 2022.
Was Google a “publisher” of the defamatory article?
Publication is an essential element of the tort of defamation.
In Voller, the majority confirmed that publication is a technical term, understood to be a “bilateral act by which the publisher makes the defamatory material available and a third party has it available for their comprehension”, with any act of participation in its communication – regardless of knowledge or intent – sufficient to make one a publisher.
Here, it fell to be decided whether the hyperlink in organic search results and snippets generated by Google’s search API was a publication.
The Majority
In a joint judgment, Kiefel CJ and Gleeson J (Gageler J agreeing) framed the question to be answered as:
…whether providing search results which, in response to an enquiry, direct the attention of a person to the webpage of another and assist them in accessing it amounts to an act of participation in the communication of defamatory matter.[1]
Their Honours answered this question in the negative, noting that the provision of a search result and hyperlink had no connection to the article’s creation. The appellant in no way approved or encouraged its creation, nor did it participate in its publication on The Age’s website.[2]
Whilst search results were ranked by use of an algorithm, their Honours did not consider that a person was directed to a particular result and rejected the respondent’s assertion that the search result “enticed” a person to access the article link.[3] Ultimately, the hyperlink was “merely a tool which enable[d] a person to navigate to another webpage”; facilitating access to a website was not “participation” in a bilateral process of communicating its contents.[4]
In a separate judgment, Gageler J drew a distinction between the “organic search results” of the present case and the “sponsored links” considered in Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 (Google v ACCC). There, the links were a “form of advertisement” paid for by advertisers, with Google directing users to websites of the advertiser’s choosing – as such, in that context Google was no different to intermediaries who publish the advertisements of others.[5]
In a further joint judgment, Edelman and Steward JJ noted that a “vital step” in the process of publication was a user deciding whether to click on a hyperlink provided as a search result. In their Honours’ opinion, the appellant in no way participated in this step.[6] Their Honours further considered that the words accompanying the search result – merely indicating what the article would contain, and not detailing the defamatory matters – fell “well short” of being an enticement to users, or an assumption of responsibility for the contents of the webpage.[7]
The Dissenters
Both Keane and Gordon JJ published dissenting opinions and agreed that the appeal should fail.
Gordon J’s analysis focused on the nature of Google’s search engine and its commercial interests. Her Honour stated that the search engine was, by design, intended to affect results produced in response to a query and involved an “exercise of evaluative judgment” (adopting an argument made by Google before the United States District Court, W.D. Oklahoma).[8]
Her Honour noted that commercial benefits obtained by Google in “creating and operating” its search engine vis-à-vis news outlets were inconsistent with an assertion of passivity, instead amounting to participation in the publication process. Her Honour concluded there was an objective common intention of Google and news outlets, with the appellant and The Age having engaged in “concerted actions towards a common end” to communicate the article to readers.[9]
Keane J separately explained his conclusions in relation to publication, finding that the provision of search results enabling users to have direct access via hyperlink constituted participation where it “occurred as Google intended by the operation of its search engine in accordance with its design and in the ordinary course of [its] business”.[10] His Honour refused to accept that Google’s search engine could be “accurately described as a passive instrument”, with Google intentionally bringing the article to the attention of users.[11]
His Honour also rejected concerns expressed in Crookes v Newton [2011] 3 SCR 269 regarding taking an unduly broad view with respect to publication that might impact on freedom of expression and impair the “whole functioning of the Internet”.[12] Rather, an expansive publication rule was necessary to ensure that “all persons injured by a defamatory publication should have a remedy against each person responsible for inflicting that injury whatever the ‘precise degree’ of his or her instrumentality may be”.[13]
For internet intermediaries and hyperlinks, context is everything
The High Court’s analysis is likely to invite close analysis of the context in which hyperlinks appear.
Hyperlinks, as Kiefel CJ and Gleeson J found, “communicate something that exists, but do not by themselves communicate its content”.[14] The Court also described such hyperlinks as “content-neutral”, adopting case law from the Supreme Court of Canada.[15] This, it was argued, should be distinguished from cases where an intermediary endorses or adopts material – or actually incorporates the defamatory content. As Gaeglar J observed, “the provision of a hyperlink might combine with other factors to amount to participation in that process of publication of a matter on that other webpage”.[16]
While the general proposition about publication and hyperlinks is likely to bring comfort to many internet intermediaries, the decision highlights that the context and content of hyperlinks will remain increasingly important. Close analysis will need to be paid to defamatory material accessible by hyperlink to ensure that its context does not adopt or endorse the content, or encourage users’ access.
We expect future decisions to pay close attention to the express and implied way in which hyperlinked material is presented online – for example, by reference to the structure of web pages and apps’ user experience, audio-visual elements such as a font size and colour, and, of course, the express description of material that accompanies a hyperlink.
Two additional facts in particular are critical:
- The amount and detail of content contained in organic search results has likely increased since 2016. It is likely search results in 2022 could be more fulsome and re-publish defamatory material.
- In this instance, the Court expressly compared this automated “organic” search result and the “sponsored links” of Google v ACCC. Context is everything.
Relatedly, the adjacent principles of copyright authorisation may undergo analysis following this decision. The High Court adoption of the Canadian analysis of the nature of hyperlinks as “a reference to another source [that] does not itself constitute publication of it”[17] leaves room for close analysis in copyright infringement matters where hyperlinks merely facilitate access to third-party hosted infringing content.
References
[1] At [24].
[2] At [34].
[3] At [51].
[4] At [52]-[53].
[5] At [69]-[71].
[6] At [221].
[7] At [230]-[238].
[8] See Search King Inc v Google Technology Inc (WD Okla, No CIV-02-1457-M, 27 May 2003).
[9] At [139].
[10] At [77].
[11] At [100].
[12] At 102].
[13] At [103].
[14] At [43].
[15] At [43], citing Crookes v Newton [2011] 3 SCR 269 at 286 [30].
[16] At [66].
[17] at [42], citing Crookes v Newton [2011] 3 SCR 269 at 284 [22]-[25].
