Defamation and Search Engines: Analyzing Google LLC. v Defteros (2021) and Legal Implications
Introduction
Defamation refers to damaging one’s reputation by spreading negative and false information. While defamation cases concerning printed media are complex, they can quickly establish the author of a defamatory article, its publisher, and the publication date. However, the authorship and original publication source are more challenging to determine online – many websites reprint or provide links to other texts.
A similar issue appears in the case of Google LLC. v Defteros (2021), which ultimately seeks to answer whether a search engine can be considered a publisher. The ruling in the appeal at the High Court establishes that search engines are aggregators of hyperlinks rather than original publishers, and this decision is consistent with the structure of the modern internet.
Court Case
The court case Google LLC. v Defteros (2021) is an appeal by Google to change the outcomes of the previous trial. In the original case, George Defteros, an Australian lawyer, aimed to sue Google for not taking down an article by The Age from its search results (Google LLC. v Defteros, 2021). The publication released a story describing the charges of conspiracy to murder presented to Defteros in 2004.
The charges were later withdrawn, and Defteros could continue his practice, but the article remained published on The Age‘s website (Karp, 2022). Furthermore, the publication also appeared in Google’s search results with relevant tags. In 2020, after unsuccessful attempts to persuade Google to delete the link to the article in the search results, Defteros sued the company for defamation and won.
However, in the 2021 appeal, Google contested the decision that it was liable for such articles appearing in the search results. The company presented several arguments, including defending innocent dissemination and qualified privilege (Lindsay, 2022). Google argued that the search results were a compilation of available links collected based on the sources’ trustworthiness and quality and that they could not be held liable for the contents. Thus, it was the responsibility of the separate publications to remove defamatory materials rather than the requirement of Google to hide them from search results.
Based on the arguments, the court majority ruled that Google could not be held liable. It was decided that its search results were hyperlinks that were collected without the explicit intention of harming Defteros. Most judges’ rulings concluded that hyperlinks were an inseparable part of the internet, and their use could not always equate to an endorsement of the material contained (Google LLC. v Defteros, 2021). This decision is essential for clarifying the position of search engines in defamation law.
Relevant Area of Law
Defamation law is the foundation for this and similar cases in Australia. All defamation-related incidents are regulated by the Defamation Act, which was initially accepted in 2005 and reformed in 2021. The act describes the conditions for what is considered a defamatory statement – a false statement that results in the person described being viewed negatively (Gray, 2020). Furthermore, the Defamation Act lists the elements a claimant must demonstrate to prove defamation. These include the defamatory meaning of the publication and a direct mention of the person or an apparent reference to them. The third and final element is the publication’s reach to at least one other individual other than the publisher or the subject of the article (Gray, 2020). The act also considers how defendants may prove their innocence, compensation rates, and the description of who can sue or be sued for defamation.
The previous cases surrounding defamation also shaped the judicial process. One of the critical cases that influenced the decision in Google LLC. v Defteros (2021) was a case reviewed by the Canadian Supreme Court, Crookes v Newton (2011) (Lindsay, 2022). In it, the limits of what could be considered publication were challenged.
As an outcome, it was established that hyperlinks could not be regarded as publications by themselves. They served as links to other material that did not contain malicious intent. Nevertheless, if an article included links to defamatory material and restated its claims in the body, it could be viewed as a publication and be subject to liability.
Other older cases challenge this conclusion, although they reflect a world without the internet. In the case of Hird v Wood (1894), a man pointing to a “defamatory placard” in a public space was considered a publisher (Lindsay, 2022). In contrast to the later examples, this conclusion argued that directing one to harmful material was an instance of publishing it. Combining these cases presents a challenging issue in the present world, where links to content are shared and published or compiled by different search engines.
In 2021, the Defamation Act went through several changes that attempted to address the new questions brought on by the development of the Internet. First, a severe harm threshold was added – the allegedly defamed person has to prove that the published material caused or can cause serious harm. Second, the publication rules were made more transparent to cover online sources previously exposed to liability in perpetuity.
Now, the material can be liable 12 months after the first publication date, including online content uploads (Hanks, 2023). Next, the defendant can use the public interest defense, demonstrating that the publishing was necessary for the public to see (Hanks, 2023). Finally, a significant decision required claimants to send defendants a concern notice before taking legal action. This action can reduce the number of court cases and help the parties resolve the issue peacefully.
Further Reform
The presented case demonstrates that the judicial system encounters many challenges when dealing with internet-related matters. Future reforms to the act should consider the nature of sharing content, interpreting it in different media, and using hyperlinks to contrast, analyze, or compile information. For example, separating search engines and other platforms, such as personal websites and social media, is vital to distinguish between aggregators and publications.
However, this reform should not completely free search engines from liability. Currently, Google and similar platforms feature sponsored search results at the top of the page, which can be considered an endorsement – an element necessary to prove defamation (Lindsay, 2022). Furthermore, Google also features some results on the side panel with descriptions, snippets, and additional information. The selection of such results also depends on the company’s internal quality checks, making the platform responsible for what is displayed. Future laws should consider these specifics of search engines and apply a similar approach to other websites to define what is susceptible to defamation lawsuits.
Conclusion
In the modern world, laws slowly adapt to developing technology, which leads to complex case discussions. In Google LLC. v Defteros (2021), the issue of defamation is considered, and the decision claims search engines to be impartial aggregators of links rather than promoters of defamatory content. This judgment places more responsibility on original publishers and protects the use of hyperlinks on the internet.
The outcome of the case is consistent with the newer points in the field of defamation, although it contests older core cases. Overall, future changes to the Defamation Act should consider the specifics of different website types, clarifying the difference between unbiased linking of information and intentional ranking of content based on advertisements or company choices.
References
Google LLC. v Defteros, VSCA 167 (Supreme Court of Victoria2021). Web.
Gray, A. (2020). Three suggested amendments to Australia’s defamation laws. Alternative Law Journal, 45(2), 94-100. Web.
Hanks, J. (2023). What happens on the internet stays on the internet? Defamation law reform and social media. Rule of Law. Web.
Karp, P. (2022). Google warns of ‘devastating’ impact if court ruling on defamatory hyperlinks not overturned. The Guardian. Web.
Lindsay, D. (2022). Google v Defteros: Defamation liability of search engines. UTC. Web.