The High Court has upheld an appeal by Google finding it is not liable for defamatory content accessed by clicking on hyperlinks generated by its search results.
Google had appealed against a Victorian Supreme Court decision that found it was liable as a publisher of a 2004 newspaper article about Melbourne criminal lawyer George Defteros.
The article, published by The Age, was about Defteros’ arrest on conspiracy and incitement to murder charges and suggested he had “crossed the line from professional lawyer to confidant and friend of criminal elements.”
Supreme Court justice Melinda Richards ruled that Google was liable as a publisher of the story when users searched for Defteros’ name and clicked on the link directing them to The Age article.
Google essentially argued that providing a hyperlink to an article did not amount to publication and therefore it could not be liable for defamation.
A majority of the court (5 of the 7 judges) agreed with the search engine giant finding that because Google had not participated in the writing or dissemination of the article, there had been no publication. The search engine’s results “merely facilitated access” to the article which did not constitute publication as understood by the law.
“In reality, a hyperlink is merely a tool which enables a person to navigate to another webpage,” Chief Justice Susan Kiefel and Justice Jacqueline Gleeson said. “The provision of the Search Result, including the hyperlink, has no connection to the creation of the…article; its creation was in no way approved or encouraged by the appellant [Google]; and the appellant did not participate in it being placed on The Age’s website.”
This latest ruling comes after the High Court found in September last year that media outlets are potentially liable as publishers of defamatory comments posted on social media platforms by third-party users.
The difference between the two cases would appear to be that in the 2021 case the media companies encouraged and invited comment, while Google “did not provide a forum or place where it could be communicated, nor did it encourage the writing of comment in response”, the court said.
