Key points:

• The publication of a link to a third party webpage may not give rise to liability in defamation for the content of that webpage
• Making available defamatory posts on social media pages could constitute publication for the purposes of defamation law.

The decision in Google v Defteros

Providing hyperlinks as a search result to potentially defamatory material does not necessarily expose search engines or other website owners to the risk of a defamation action, the High Court has found, in another recent decision clarifying defamation law in an age of online media.

But companies should still exercise caution in linking to materials on other websites, as the context in which hyperlinks are provided can still create grounds for a defamation suit. If a search result or hyperlink contains material which would direct, entice, or encourage someone to click on the link, such as a “sponsored link”, the company providing such a link may be deemed to be a publisher of that underlying material.

In Google LLC v Defteros [2022] HCA 27 (Defteros), the High Court found by majority that Google was not liable as a publisher for including within its search results a hyperlink to a defamatory article. 

The decision in Defteros follows another recent decision of the High Court concerning the scope of liability for online defamation.  In Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (Voller), the Court ruled by a 5:2 majority that online news publications could be liable for defamatory posts on social media pages they controlled. 

Both decisions concern what it means to be a “publisher”, which is a technical concept under defamation law.  A defendant cannot be liable for defamatory material unless it is found to have published that material. 

Whereas the majority in Voller concluded that, when news organisations allowed readers to post comments on articles on social media pages, those news organisations became the publisher of those comments for defamation purposes, in Defteros a majority found that including hyperlinks to defamatory articles within a list of search results did not make Google a publisher.

“It cannot be said that the appellant was involved in the communication of the defamatory material by reference to the circumstances in Webb v Bloch and Voller,” Kiefel CJ and Gleeson J wrote at [49], in reasons agreed with by Gageler J, with Edelman and Steward JJ also agreeing with the orders.  Webb v Bloch (1928) 41 CLR 331 is considered the classic case on publication under Australian defamation law.

Defteros concerned the Victorian solicitor, George Defteros who practised in criminal law.  Mr Defteros represented persons who were well-known in Melbourne’s “gangland wars” including Mick Gatto and Mario Condello.  Mr Defteros and Mr Condello were charged with offences in 2004, but these charges were withdrawn the following year.  In the meantime, however, The Age had published an article titled “Underworld loses valued friend at court.”

In the Victorian Supreme Court, Richards J found that this article conveyed the defamatory imputation that Mr Defteros had crossed a line and become a friend and confidant of criminal elements, as opposed to being a professional lawyer (Defteros v Google LLC [2020] VSC 219 (30 April 2020)). 

Richards J also found the imputation was also conveyed, or published, by Google, when Google included a hyperlink to The Age article within the article headline that appeared as a result of a search for George Defteros’s name.   

After the Court of Appeal upheld Richard J’s decision (Defteros v Google LLC [2021] VSCA 167 (17 June 2021)), Google appealed to the High Court.  The appeal was based partly on the ground that the Court of Appeal was wrong to conclude that Google had published the defamatory material.

In three judgments, Kiefel JC and Gleeson J, Gageler J, and Edelman and Steward JJ, allowed Google’s appeal. 

Kiefel CJ and Gleeson J wrote:

“[Google] did not approve the writing of defamatory matter for the purpose of publication. It did not contribute to any extent to the publication of the Underworld article on The Age's webpage. It did not provide a forum or place where it could be communicated, nor did it encourage the writing of comment in response to the article which was likely to contain defamatory matter. Contrary to the finding of the trial judge, the appellant was not instrumental in communicating the Underworld article. It assisted persons searching the Web to find certain information and to access it.”

But in his Honour’s concurring judgment, Gageler J nevertheless foreshadowed that there might be circumstances in which providing a hyperlink could constitute publication for defamation.

“To accept that the provision of a hyperlink is not enough to amount to participation in the process of publication which is completed when a third party clicks on the hyperlink so as to view the webpage, however, is not to deny that the provision of a hyperlink might combine with other factors to amount to participation in that process of publication of matter on that other webpage” Gageler J wrote at [66].

“The late 19th century decision of the English Court of Appeal in Hird v Wood – treating as a publisher a man who sat on a stool smoking a pipe and continuously pointing to a placard so as to attract the attention of passers-by to the writing on the placard – illustrates that the taking of action which draws the attention of a third party to the availability of matter in a manner which has the effect of enticing or encouraging the third party to take some step which results in that matter becoming available for his or her comprehension can be sufficient to amount to participation in publication of that matter. The question whether particular action amounts to enticement or encouragement of that nature is appropriately described as one of "fact and degree” [66].

In Voller, it had been relevant that the media companies created the social media pages on which the defamatory comments had been posted, and profited from the public interest in those pages. 

In Defteros, the majority distinguished Google’s involvement in the communication of the defamatory material.  “Google does not, merely by providing the search result in a form which includes the hyperlink, direct, entice or encourage the searcher to click on the hyperlink,” Gageler J wrote at [74].

Justices Keane and Gordon dissented from the majority.  In separate decisions, both found that Google was a publisher of the defamatory Age article.