Article by: Billy Duan

Are Search Engines liable for their content?

On 17 August 2022, the High Court of Australia delivered its judgment in Google LLC v Defteros [2022] HCA 27. The key question for the High Court’s consideration was whether search engines bear any liability for producing defamatory publications contained in their search results.

Background:

Mr George Defteros is a solicitor specialising in criminal law. Mr Defteros and others were charged with conspiracy to murder and incitement to murder in 2004, but the charges against him were dropped in 2005. However, soon after the news of the allegations against Mr Defteros came out in 2004, the newspaper The Age published an article covering this story (the “Article”). At that time, Mr Defteros did not commence proceedings against The Age for the potentially defamatory contents contained in the Article.

However, it was not until 2016, Mr Defteros realised when he searched his name on the search engine Google, the Article was among the search results that appeared (in the form of a snippet of the Article and a hyperlink to the Article). It was requested to remove the Article to Google, but they refused to do so.

Mr Defteros commenced legal proceedings for defamation at first instance in the Supreme Court of Victoria who found in his favour. However, Google appealed but Mr Defetoros was again successful in the Court of Appeal of Victoria. Consequently, $40,000.00 was awarded in damages to Mr Defteros.

Accordingly, both Courts’ rulings had opened the floodgates and potentially rendered all online search engines in Australia to be liable for defamatory search results. Consequently, Google soon applied for leave to appeal and this was granted by the High Court. That appeal was then heard by all 7 Justices of the High Court.

The High Court’s Reasoning

The High Court referred to its judgment in the matter of Fairfax Medica Publications Pty Ltd v Voller (2021) 95 ALJR in which it described publication to mean “a bilateral act by which the publisher makes the defamatory material available and a third party has it available for their comprehension”. The central question in the present case was whether by producing the search results in response to a user’s enquiry, had Google participated in the communication of the Article.

In addition, the High Court found the snippet accompanying the hyperlink did not entice a user to click the hyperlink and therefore read the Article. Nevertheless, the High Court left it open for future consideration that:
1. Some search results are sponsored or promoted by Google, which may add in the element of encouragement and enticement;
2. The snippet or the hyperlink themselves may contain defamatory materials; and
3. That search engines can still be liable for defamation but each case turns on its particular facts.

RMO’s Comments and Key Takeaways

Emerging technology is fluid and is changing at a rapid rate. The internet and search engines are not immune for possibly being held liable for publishing defamatory content. However, as we have said above, each case turns on its particular facts. Although Google was finally successful in the High Court as it found that it was indeed a stretch for Google to be liable for every piece of content on its search engine, the High Court has indicated its interest or willingness to not close the door on this emerging area of law. In particular, the High Court’s decision was indeed not a unanimous one. So watch this space.

For more information, speak with one of the commercial litigation lawyers here at Ryan Murdoch O’Regan.

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This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.