The High Court’s decision in Google v Defteros on Wednesday definitively answers one question: search engines cannot be liable for defamation merely for publishing search results.
The search result in question was an article published on The Age’s website in 2004. It reported on criminal charges against George Defteros, a solicitor in Melbourne, of alleged conspiracy and incitement to murder the gangland figure Carl Williams. The charges were withdrawn in 2005, but the article remained live and was still accessible via a Google search in 2016. Defteros sued Google for defamation over the content of the article.
A 5-2 majority in the High Court declared that when Google’s algorithm produces an “organic” result to a search inquiry, it is not a publisher of the material to which the search result will take the reader. Therefore, it cannot be liable for the Age article and that’s the end of the case.
Google is not completely in the clear generally: if the search result includes defamatory language itself, it could still be liable for that (as opposed to what is at the other end of the hyperlink). And the question remains open with respect to paid search results. In line with Voller, Google could be found to be actively participating in that publication.
The legal test is whether the defendant was instrumental in, or contributed in any extent, to the publication of the defamatory matter. If so, they are a publisher and can be sued.
The majority judges likened Google to a person on the street who gets asked for directions to a bookstore where a defamatory publication can be bought. Justices Susan Kiefel and Jacqueline Gleeson explained: “A hyperlink is content-neutral. A search result is fundamentally a reference to something, somewhere else.”
On that argument, Google is really standing around holding up a sign saying “The dirty pics you seek are that way”.
Justice Michelle Gordon, dissenting, said, “Google’s attempt to portray itself as passive has an air of unreality. Having taken action to obtain a commercial benefit by creating and operating a search engine that facilitates news articles, it cannot deny that it is involved in the publication of those articles.” That would still leave a possible defence of innocent dissemination.
That reasoning picks up on the Voller case, where the High Court said that news organisations can be liable as publishers for third-party comments posted on their Facebook pages. The logic there was that they invited the comments, and therefore were actively engaged in their publication.
If you find difficulty working out the difference here, you won’t be alone. Not that the court was wrong in either of these landmark cases, but either of them could have easily gone the other way.
The absolute certainty expressed by both the majority and minority judges in Defteros illustrates that the big question of who, on the internet, is a publisher for defamation law purposes is in reality an exercise in splitting hairs. We need clarity that only legislative reform can provide, not judges applying bricks-and-mortar analogies to the online domain.
That may be coming. The state attorneys-general have just produced a draft set of recommendations for the next round of defamation law reforms. Included is a proposal to set in concrete what the majority judges declared: an absolute exemption from defamation liability for search engines, but limited to “standard search engine functions” — that is, where the search result is produced automatically by the engine’s algorithm, without human intervention and not influenced by paid advertising, in response to a search query.
Importantly, this is a step away from a philosophy that has been causing mayhem for years: the idea of “technology neutrality”, which dictates that the common law principles of defamation law, developed in and for a 19th-century, print-copy world, can be applied by simple analogy to the digital realm. They can’t.
Wiping out 200 years of precedent isn’t always a bad thing.
