Google wins defamation battle as Australia’s high court finds tech giant not a publisher | Google

Australia’s highest court has ruled Google is not a publisher of the websites it links to in search results, finding search engine hyperlinks do not amount to publication.

A majority of high court justices on Wednesday found Google was not the publisher of a defamatory article by the Age about a Victorian lawyer, as it was a search engine that only provided hyperlinks to such content.

“In reality, a hyperlink is merely a tool which enables a person to navigate to another webpage,” a joint statement by Chief Justice Susan Kiefel and Justice Jacqueline Gleeson said.

Google took the matter to the high court after Victoria’s court of appeal in 2021 refused its attempts to overturn a defamation finding in favour of George Defteros, a lawyer for underworld figures.

The Victorian court found Google was the publisher of a defamatory article by the Age in 2004 because its search results were instrumental in communicating the content to readers.

The US-based search engine argued that providing a hyperlink to a story did not amount to publication and it, therefore, could not be liable for any defamatory material contained in the story.

Google warned it could be forced to censor its search results if the higher court upheld the court of appeal’s decision, which would have a “devastating” impact on the functioning of the internet.

Five of seven high court justices found in Google’s favour, ruling the search engine’s results “merely facilitated access” to the Age’s story, which was not enough to amount to publication in a legal sense.

“There was no other basis for finding publication because the appellant [Google] had not participated in the writing or disseminating of the defamatory matter,” the judgment summary said.

The court rejected Defteros’ claim that search results “enticed” the person searching to open the website, finding a person would already be looking for particular information before the result was received.

In a separate statement, Justice Stephen Gageler noted that while he agreed with Kiefel and Gleeson, the case differed from a sponsored link where Google received advertising revenue.

Justices James Edelman and Simon Steward said the appeal case did not ask the court to decide if its conclusion would be different if the hyperlinks were paid to be promoted on Google. They agreed that Google “in no way” participated in publishing the article.

Justices Patrick Keane and Michelle Gordon said they would have rejected Google’s appeal.

Defteros had clients including the gangsters Alphonse Gangitano and Mario Condello, and the underworld identity Mick Gatto.

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Photograph: Tim Robberts/Stone RF

The lawyer was charged alongside Condello with conspiracy and incitement to murder the killer Carl Williams, his father George and another man, although the charges against Defteros were later withdrawn.

Defteros successfully sued Google in 2016, arguing its publication of an article by the Age about his arrest on conspiracy and incitement to murder charges had defamed him.

Google was notified of the defamatory article in February 2016, 11 years after it was published, but did not remove it until December that year.

In 2020, the Victorian supreme court justice Melinda Richards ruled the article implied that Defteros crossed a line from professional lawyer to confidant and friend of criminal elements and ordered he receive $40,000 in damages.

This finding was upheld by the court of appeal but has now been set aside by the high court.