The landmark decision overturns existing rulings by the Victorian Supreme Court and the Court of Appeals awarding $40,000 in damages against Google to Melbourne attorney George Defteros for hyperlinking to an article published by Google. The age in 2004.
Defteros launched a defamation suit against Google in 2016 and won in 2020 after the search engine refused to remove the link to The Age article, which cited criminal charges against Defteros for conspiracy and incitement to murder underworld figures who had been put down in 2005, but left 12 months later.
The attorney claimed damages under the defamation law from Google as the publisher of the Search Result and what was referred to as “the Underworld Article.”
After losing both the case and the appeal, Google went to the Supreme Court, arguing that it was simply a facilitator, much like a telephone company, rather than a publisher.
The High Court, by majority for the full bench of all seven Justices, discovered that Google was not a publisher of the defamatory material.
A majority was of the opinion that the appellant did not cooperate with: The age in communicating the defamatory matter in the Underworld article to Google’s external users.
The inclusion of a hyperlink in the search result “only facilitated access to the Underworld article and was not an act of participating in the bilateral process of communicating the content of that article”.
Google had not participated in the writing or distribution of the defamatory matter, a majority of the High Court ruled.
Chief Justice Susan Kiefel and Justice Jacqueline Gleeson wrote a joint judgment stating: “While it can be said that using a hyperlink can mean The age a reader wins does not make the appellant any different from a reference supplier.”
In confirming Google’s appeal, the judges said that while search results could contain defamatory material, in this case they did not.
“The inclusion of words or phrases accompanying the hyperlink does not, with great respect, constitute evidence or demonstrate that the content of a particular web page is being copied or that responsibility is taken for the content of a particular web page – unless a language in which the hyperlink has been taken or words from which taking responsibility appear in the search result,” they said.
“Such language or words cannot be found in the search result for the Underworld article.”
The Court ruled that the provision of a search result, including a hyperlink, has no connection with the creation of the article.
“Its creation was in no way endorsed or encouraged by the [Google]; and the appellant did not participate in its posting on The Age website,” Kiefel and Gleeson wrote.