Should Google be responsible for harmful websites to which it links?
On 3 May 2022, the High Court of Australia heard a defamation case that could have significant implications for the future of the internet: Google LLC v Defteros.
Google LLC is appealing previous Victorian judgments which decided that it was 'publisher' of underlying websites accessible through Google search results.
Those decisions were significant because they mean that you can sue an entity like Google for defamation over a website created by someone else, to which Google merely hyperlinked. If your reputation has been harmed by something on the internet, rather than going after the actual author, you can go after Google.
The High Court is considering whether those previous decisions were correct as regards whether Google should be treated a 'publisher', as well as whether Google should enjoy certain defences to defamation in these circumstances.
Reading the transcript of the High Court hearing has been illuminating. I extract some interesting bits below.
My prediction: the majority will treat Google as publisher; Steward J and Edelman J will dissent in separate sets of reasons. The Court will deny Google's defences. Google et al will lose their minds... a lot will be said about the 'chilling effect' of the decision on freedom of speech and access to information on the internet. There will be immediate calls for law reform.
Further reading
Myself and colleagues noted the previous decisions in a couple of articles. Reach out if you want to know more.
Extracts from the transcript of the High Court hearing: see Google LLC v Defteros [2022] HCATrans 77 (3 May 2022)
WHETHER A PUBLISHER OF DEFAMATION MUST HAVE ‘CONTROL’ OVER THE UNDERLYING MATTER
MR WALKER:: [Google does not control what is on the internet; it does not edit underlying websites]
KIEFEL CJ: Mr Walker, why is control relevant to publication? I know it is mentioned in Crookes v Newton but, in terms of the traditional descriptions of publication here, especially Webb v Bloch, it does not seem to have been elevated to any level of importance.
MR WALKER: ... we are not proposing … that for persons such as our client some immunity should be made available by sparing them liability in defamation on the ground that they are not aware of – were not the original source of the defamatory matter. That would be completely contrary to Voller and we make no such endeavour…
REMOTENESS AS AN ASPECT OF ‘PUBLICATION’ OF DEFAMATION
MR WALKER: …the common law in other areas – and we would urge its adoption here – has a concept of remoteness. … It may be describing a quality which the common law ascribes to a perceived connection – that it exists but is so remote or too remote as not to contribute to liability, not to bring about liability ‑ ‑ ‑
KIEFEL CJ: Is the closeness of connection that you are talking about captured by the phrase “participation in the act of publication”?
MR WALKER: The simple answer is yes, but the complexity of the case – not just my argument, but the case, the reasoning to a conclusion – does involve teasing out for this very typical and very important form of human and social interaction what it means to participate in the communication of the defamation…
… [Later]
MR GILBERTSON: … notice we say is relevant to publication, not only innocent dissemination. Here, the appellant was put on notice of the defamatory material by being provided with the full URL and we submit that notwithstanding the inaccuracies in the notice that that is sufficient.
GAGELER J: Sufficient for what?
MR GILBERTSON: Sufficient for when the search engine operator is given notice and he has the capacity to prevent the search engine from producing the search engine result and it fails to do so within in a reasonable time, then in our submission, the giving of the notice and the failing to prevent the search engine to not produce the search result go to participation.
KIEFEL CJ: That sounds more like liability for negligence than liability for publication.
MR GILBERTSON: In our submission, not, your Honour, because it – once there is notice of the defamatory matter and there is a capacity to stop it producing, in our submission, it is not negligence, but it shows a ‑ ‑ ‑
KIEFEL CJ: That is assuming there is a duty, of course, but it is more. I mean you are drawing on concepts from the law of torts, are you not?
MR GILBERTSON: Yes, I am, your Honour, yes. I would not be submitting if there was a lack of notice that there is any relevance in relation to that. But once there is awareness and a failure to take action, in our submission, that is instrumentality.
KIEFEL CJ: Well, I am having difficulty in relation to - someone who is not a publisher the notice makes them a publisher. I mean this is a tort, but it is strict liability. That is why publication is so critical.
PUBLICATION AS A BILATERAL ACT
MR WALKER: … … it makes sense to talk about Google being used by and helping the person who wants to know the unemployment rate. It does not make sense to say that Google is assisting the ABS or any scholarly or academic commentary upon the common sense of a declared unemployment rate. …
KEANE J: Mr Walker, you are emphasising very strongly the difference between assisting the recipient of the communication and assisting the person who speaks.
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MR WALKER: Yes.
KEANE J: But in Voller the Court accepted earlier authority that is quite clear that publication is a two‑sided coin - the person who speaks and the person who receives the communication - because there is a separate communication to each recipient.
MR WALKER: Yes.
KEANE J: Just in terms of principle, why would not assisting the recipient of the communication be as relevant to publication as assisting the speaker? For example, a person who assists a blind person by reading the newspaper to that person publishes the newspaper to that person, no doubt in most cases as an innocent disseminator. But, on the other hand, if that person is reading a letter to the editor that is very defamatory, that that person wrote, the person would not be an innocent disseminator. I am just not clear why your submission seems to assume that assistance to the recipient rather than assistance to the speaker is decisive in your favour.
THE DEVELOPMENT OF THE COMMON LAW IN LIGHT OF THE VALUE OF GOOGLE
MR WALKER: … The notion that all the material available on the World Wide Web is material for which we become liable unless we discharge an onus is, in our submission, a peculiar approach of the common law to something as manifestly valuable in the eyes of the law as access to the world’s wisdom.
COMMUNICATING SOMETHING VS COMMUNICATING THAT SOMETHING EXISTS
GAGELER J: [Referring to Abela J in the Canadian case, Crookes v Newton]‑ ‑ ‑ going back to an earlier technology, she is drawing attention to the position of the radio host who calls attention to an article in a magazine. The point which she extracts from that – which, I think, follows through to her ultimate analysis – is that there is a difference between drawing a reader’s attention to the existence of an article and publishing the article.
… [later]
MR WALKER: … Communicating something is very different from merely communicating that something exists or where it exists.
Anybody who can remember using paper bibliographies and paper libraries will well appreciate that, and the massive labour between the two.
… [later]
MR WALKER: … There is nothing hitherto in the common law to suggest that the supplier of a mere reference who still only supplies a mere reference becomes, as it were, responsible for content after they have been told about that content when all they are ever doing is supplying a mere reference. Otherwise, why would not telephone companies or radio transmitters and the like be liable after notification when all they are doing is providing, purely passively, essential facilitation which does not amount to the participation that the law requires in order to be a publisher.
… [later]
MR GILBERTSON: … [T]here are a number of indicia in this case which go to instrumentality or participation, and they are the systems employed by the appellant - enticement, incorporation and notice. This search result, in our submission, was more than a library catalogue, and it was not a mere reference.
Our secondary submission, your Honours, is that the systems and notice are sufficient of themselves to establish publication…
THE POLICY OF THE LAW
MR WALKER: … [Referring to Crookes v Newton, where the following was said at paragraph 33 in relation to the Canadian Charter of Rights and Freedoms: ‘Interpreting the publication rule to exclude mere references not only accords with a more sophisticated appreciation of Charter values, but also with the dramatic transformation in the technology of communications’.] I need to deal with the fact that in paragraphs [32] and [33] there are references to the Charter. It would be a legitimate point in considering the usefulness of the authority in this country to note that there is no corresponding element in our jurisprudence…
There is nothing in those matters of policy which is foreign to the policy of the law, what once upon a time was called public policy, properly informative of common law decisions, should be perceived as being in this country. There are no differences, we earnestly submit, between Canadian society and Australian society in any of the respects that those policy considerations refer to.
KIEFEL CJ: But you would need a reason to have regard to policy, where you have settled rules in relation to publication.
MR WALKER: Unquestionably, your Honour. But in our submission, it is not only when what might be called an overt or tectonic shift in the common law rule is being essayed that one turns to the policy of the law in order to understand the content in its application to particular facts of rules stated so generally as looking for participation that, in our submission, it is proper to bear in mind consequentially – that is, as a consequentialist matter – what would follow in the real world in which this kind of conduct is being carried out were that understanding, say, of the word “participation” to extend so far.
QUALIFIED PRIVILEGE AND ‘INTEREST’
MR WALKER: … we understand the historical obstacles of practice in the way of the mutuality of interest and the legitimacy of interest that we face. However, as you have seen in our written submissions, we call in aid the essential quality of what is happening in a Google search. Somebody has an interest in something. So, this is not the tabloid which you might buy because of the front page and then page 4 has something alarming not presaged on the front page.
We are here talking about self‑selected readers, or audiences, who select and obtain access to the punitively defamatory material published by another anteriorly to Google search giving a result. In our submission, by definition – or in the very nature of that interaction or intercourse – the interest of that person is demonstrated – simplified – not just as a matter of inference – that constitutes the showing of a relative interest. …
NOTICE FOR THE PURPOSES OF INNOCENT DISSEMINATION
MR WALKER: … the notice for the purpose of the common law defence of innocent dissemination has to be a notice which has a sufficiently square and proper relation to what is in fact the case before there is created the burden which the doctrine imposes on a defendant.
Michael Douglas is a consultant at defamation litigation firm, Bennett + Co. He researches and teaches media law at UWA Law School and is co-author of Media Law: Cases, Materials and Commentary (Oxford University Press, 3rd ed, 2022).
Founder & Director Impact Seed. Systems-change finance & entrepreneurship (since long before it was fashionable)
2yKylie Hansen
Principal Associate at Bennett - Litigation and Commercial Law
2yGoogle participates in publication of the websites in much the same way as a librarian might have once brought you a selection of bookmarked texts responsive to a request for assistance. Those who participate in any degree in the publication of defamatory matter are, subject to defences, liable. Moral arguments against this outcome usually involve appeals to freedom of speech and freedom of information which must be balanced with the individual’s freedom of reputation. Search engines and social media platforms are businesses. While they provide a service to the public, they are not public goods. Google can avail itself of the innocent dissemination defence and avoid liability if it removes defamatory links within a reasonable time after becoming aware of the content. It has ways and means of doing this and employs moderators to do so. The excuse they often proffer when asked to remove defamatory material is, “we cannot determine if it’s defamatory, take it up with the page owner/user”. By continuing to direct users to website containing defamatory material, Google makes a positive decision to take on the risk that they continue to facilitate - and therefore ‘publish’ - the defamatory material.