When is a publisher not a publisher?
According to the High Court, when it’s Google.
In a landmark defamation case, the court has confirmed that publishing hyperlinks to defamatory material written by others does not count as publication – or republication.
However, the court also warned against applying that as the general rule. Accordingly, it is important to ensure the contents are reviewed carefully prior to publishing hyperlinks to defamatory material.
How did the court reach this decision?
How did the court reach this decision?
It stems from the case Google LLC v Defteros [2022] HCA 27.
Defteros was a Melbourne-based solicitor who, in 2004, was charged with conspiracy and incitement to murder members of Melbourne’s underbelly including the infamous Carl Williams, which was widely reported on. However, the charges were dropped in 2005.
In 2016, Defteros approached Google to have search results which contained a hyperlink to an article about the charges removed, but Google declined to do so.
Google denied it was a publisher, arguing search engine functions were automated.
From supreme court to high court: A legal journey
Initially, the Victorian Supreme Court found Google was a secondary publisher and awarded Defteros $40,000 in damages. The finding also upheld in the Court of Appeal.
Google took the case all the way to the High Court, which found in a majority decision the generation of search results had no connection to the publication of the article, as hyperlinks were automatically created and not “approved” by Google itself; ultimately overturning the prior decision
Implications for reputation and online content
The balance between freedom of information and a person’s right to their reputation online is still being worked out, and as far as the law goes, there’s probably still a long way to go.
It’s important for businesses to review all their policies relating to the use of social media, publication, and republication, as well as monitoring and maintenance of websites and social media pages.
What can businesses do?
Make sure you have rules in place relating to comments online and taking part in online forums.
Australia’s defamation and publication laws are complex, and if you need expert legal advice, make an appointment to see us here at GLG Legal.
Phone our office on: (07) 3161 9555 or email: info@glglegal.com.au