Google liable for ‘publishing’ search results and newspaper webpages
On 30 April 2020, the Supreme Court of Victoria in Defteros v Google LLC  VSC 219, ordered Google to pay $40,000 in defamation damages to a Melbourne lawyer, finding that the search engine was a publisher of search results and had defamed the lawyer.
George Defteros is a criminal law solicitor. During the 1990s and early 2000s, he was a partner of the firm Pryles & Defteros, whose clients included Mario Condello and other figures from Melbourne’s ‘gangland wars’.
In 2004, Mr Defteros and Mr Condello were charged with conspiracy and incitement to murder Carl Williams and other Melbourne gangland figures. Mr Defteros surrendered his practising certificate shortly afterwards.
In early 2005, both Mr Defteros and Mr Condello were committed to stand trial. At all times, Mr Defteros denied the charges against him.
The prosecution of Mr Defteros and Mr Condello was widely reported in 2004 and 2005, including in The Age newspaper and on its website. These included articles entitled ‘Underworld loses valued friend at court’, published the day after the charges were laid (Underworld Article), and ‘Gangland’s price of peace’ published a few months later (Gangland Article).
In August 2005, the Director of Public Prosecutions withdrew the charges against Mr Defteros. Mr Condello was murdered in February 2006, the day before his trial was to commence.
In 2007, Mr Defteros re-applied for his practising certificate, thereafter re-establishing a successful criminal law practice.
In 2016, Mr Defteros became aware that an internet search of his name via Google produced results that included an extract of the Underworld Article (Search Result). The Search Result contained a hyperlink to the full Underworld Article.
Mr Defteros sued Google seeking damages for defamation from it as a publisher of the Search Result and the Underworld Article (2016 proceedings). Google denied that it was a publisher and that either the Search Result or the Underworld Article was defamatory, as well as raising a the defences of qualified privilege, innocent dissemination and triviality under the Defamation Act.
During 2017, Mr Defteros conducted further Google searches on his own name and became aware of the following, due to them appearing as search result:
- a composite image, comprising four photographs: one of Mr Defteros and three of Melbourne gangland figures;
- the Gangland Article;
- another image, comprising two photographs of Mr Defteros and some derisive text; and
- a Wikipedia page ‘Melbourne gangland killings’.
Mr Defteros again sued Google in defamation, on the basis that google was the publisher of these matters (2017 proceedings). Google conceded that it published the images, but denied that it was a publisher of the Gangland Article or the Wikipedia page and that any of the above matters was defamatory, again also relying on statutory defence under the Defamation Act.
Google submitted that it could not be liable as a (secondary) publisher, because its search engine is fully automated and does not intend the communication of any particular words or images, including any third party webpage to which a user might navigate.
Justice Richards found against Google in respect of the 2016 proceedings but dismissed the 2017 proceedings.
In both proceedings, her Honour found that Google had published the subject articles, but only that the Search Result, the Underworld Article and the Wikipedia page were defamatory, with the Google being entitled to a defence of triviality in respect of the Wikipedia page.
Justice Richards took a detailed review as to how Google’s search engine, and its algorithm, operates. Her Honour determined that a Google search is a fully automated process that operates without human intervention, not capable of evaluating the meanings conveyed by the words and images on a webpage, including whether they are true, false, or defamatory.
Her Honour then went on to outline some of the general principles of publication insofar as they related to internet search engines, including that a:
defendant publishes defamatory matter if the defendant is instrumental to the publication, by intentionally lending assistance to its existence for the purpose of being published, ‘without reference to the precise degree’ of assistance. Any person who is ‘in any degree accessory’ to the publication is a principal in the act of publication. This includes any person republishing matter originally published by another person.
Whilst Justice Richards found that the Google search engine is a fully automated process described above, her Honour also found that it ‘is not a passive tool’. The basis for this finding was that the search engine, and algorithm, is designed by humans to operate in the way that it does, and in such a way that can identify objectionable content, which can then be removed, by human intervention, from the search results that displayed to a user. Here, Google had been put on notice of the Search Result from about 11 February 2016. Her Honour held that Google was the publisher of the Search Result from 11 February 2016 onwards.
As to whether Google was also the publisher of third-party webpages reached by a user who clicks on a hyperlink within a search result, her Honour referred to an earlier Full Court of the Supreme Court of South Australia decision in which the plaintiff had alleged that Google had published certain webpages that were defamatory of her. In that case, his Honour Chief Justice Kourakis stated:
… Google’s facilitation of the reading of the [webpage] is both substantial and proximate. [In the search result] Google has republished the [webpage] by abstracting sufficient material to inform the searcher of its contents, by repeating and drawing attention to the defamatory imputation, and by providing instantaneous access to it though the hyperlink. The very purpose of an internet search engine is to encourage browsing and it is designed to achieve that purpose.
Justice Richards concluded that Google providing the hyperlink within the search results ‘amounted to publication of the webpage’, because its provision of a hyperlinked search result is instrumental to the communication of the content of the webpage to the user. Google lends assistance to the publication of the content of a webpage on the user’s device, by enabling the user to enter a search query and, ‘a few clicks later’, to view content that is relevant to the user’s search.
Her Honour found that the Underworld Article conveyed a defamatory imputation understood by an ordinary reasonable reader that Mr Defteros had crossed the line from professional lawyer for, to confidant and friend of, criminal elements.
Her Honour found that no defamatory imputations arose from the publication of the images, as the ordinary reasonable reader would have understood that Mr Defteros was only professionally associated with the other figures (in that he had represented them), rather than he was their criminal associate.
As to the Gangland Article, it was, in essence, a report of an application for bail made by Mr Condello in August 2004, outlining details of the police case against Mr Condello and Mr Defteros presented during the bail hearing. Justice Richards identified that the article was replete with words and phrases that indicate that it is a report of what was said in court and did not include other background information or commentary that supported the police case or cast suspicion on Mr Defteros. Her Honour held that the ordinary reasonable reader ‘mindful of the presumption of innocence’ would not have understood the Gangland article to mean that Mr Defteros had in fact done the things alleged.
Her Honour found that the Wikipedia page conveyed a defamatory imputation understood by an ordinary reasonable reader that Mr Defteros was a criminal associate of the Melbourne underworld group ‘The Carlton Crew’. However, her Honour also found that Google was entitled to rely on the statutory defence of triviality, as a number of the limited people who had seen the webpage (and therefore to whom it was published) had only done so because they were working on the 2017 proceedings and, in any event, Mr Defteros’ inclusion on the webpage was ancillary. Mr Defteros also conceded that, as is the case with all Wikipedia webpages, any user could have edited the article as indeed had happened including by or on behalf of Mr Defteros.
Justice Richards said that the degree of defamation arising from the publication of the Search Result and the Underworld Article was at the ‘less serious end of the spectrum’. The reasons for this were that:
- Mr Defteros had been aware of the Underworld Article from 2007 but had done nothing in substance about it until the issue of the 2016 proceedings;
- Mr Defteros had in fact been friends with one of the criminals identified in the Underworld Article;
- Her Honour could not be persuaded that ‘Mr Defteros had a settled reputation as a lawyer who did not associate or become friends with his criminal clients’;
- There was no evidence that the publication of the Underworld Article in 2016 had any discernible adverse impact on Mr Defteros’ reputation; and
- Google had only published the Underworld Article to about 50 people.
Her Honour awarded Mr Defteros $50,000 in general damages, but reduced this by $10,000 on the basis that he had already received compensation from the author of the Underworld Article for publication of a chapter in his book.
As salacious as the details of this case appear, and we understand that both sides are considering whether to appeal, its real impact lies in the increasing propensity of Courts to find that search engines, content hosts and online platforms are liable as a publishers of defamatory content.
As before, this acts as a reminder for users and operators of online platforms to use an elevated level of caution, and realise that they are part of the public domain.