High Court grants special leave to Google to appeal defamation judgement

The High Court has granted Google special leave to appeal a decision of the Victorian Supreme Court requiring it to pay $40,000 in damages to Victorian criminal lawyer George Defteros for the publication of defamatory content appearing in hyperlinks of search engine results.

Background

Google LLC v Defteros [2021] VSCA 167

Melbourne solicitor George Defteros was charged in 2004 with conspiracy to murder and incitement to murder Carl Williams, his father George Williams and Carl William’s bodyguard. Following his arrest, The Age published an article regarding the charges entitled: “Underworld loses valued friend at court”. Shortly after surrendering his practising certificate, the Director of Public Prosecutions withdrew the charges against George Defteros.

In 2016 and 2017, Mr Defteros commenced two separate defamation proceedings against Google, alleging that he was defamed through Google’s search engine results that included defamatory content from an earlier The Age article.

The two proceedings were heard together by a judge sitting in the Trial Division in November 2019, with the court at first instance ruling that Google was a publisher of defamatory material by publishing webpages reached by means of a URL within Google search results.

Google’s argument against such claims was made pursuant to Google Inc v Duffy (2017) 129 SASR 304, where it was held that an internet search provider is only a publisher of the defamatory material in a hyperlink contained within a search result if the search result itself is defamatory.

Victoria Supreme Court Justice Melinda Richards made orders giving judgment for Mr Defteros in the sum of $40,000 in the 2016 proceeding and dismissed the 2017 proceeding.

Google’s defence of innocent dissemination at common law and pursuant to s 32 of the Defamation Act 2005 (Vic) was rejected, as Google had the capacity to alter subsequent search results by blocking this URL once the removal request was submitted by Defteros’ solicitor, however it chose not to do so.

The High Court has recently granted Google special leave to challenge the $40,000 damages award to Mr Defteros, claiming that it should not be held liable for a neutral hyperlink leading to defamatory content.

Key Takeaways

This case is relevant to all businesses operating a website noting that a mere hyperlink to third-party content on a website may result in defamation liability even if the website is neutral on its face.

Although this appeal may ultimately alter Google’s liability in this case, it remains imperative for businesses to carefully consider what material they publish on their website including material published via third-party content or hyperlinks.

Elit Lawyers by McGirr & Snell has over 60 years’ specialised defamation experience acting on behalf of individual and companies including high profile executives, parliamentarians, sporting and public figures.

If you need legal assistance with any aspect of your social media presence or have any other defamation concerns, please contact Danielle Snell and/or Robert McGirr.

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