Google has warned of a “devastating” impact on the internet if a court ruling that finds the search giant liable for defamatory material contained on linked pages is not overturned.
Google warned in a High Court submission that it would be forced to ‘censor’ its search results if it awarded $40,000 in libel damages to George Defteros, a lawyer who represented Melbourne gang figures , was allowed to appear.
Defteros successfully sued Google, arguing that its search results publication including a 2004 article in The Age about his arrest for conspiracy to murder – which were later dropped – defamed him.
In 2020, Victoria Supreme Court Justice Melinda Richards ruled that the article suggested Defteros had crossed a line from professional lawyer to confidant and friend to criminal elements. The Victoria Court of Appeal rejected a bid by Google to overturn the result.
Lawyers for Defteros had contacted Google in 2016 asking for the article to be removed, but it refused on the grounds that the Age was a reliable source.
Google’s lawyers told the High Court the notice contained “false” allegations that Defteros had sued Age for libel and that Age had agreed to remove it from its website.
Google has warned if the appeals court ruling stands “Google will be liable as publisher for any content posted on the web to which its search results provide a hyperlink” after a person complained that the issue defamed him – “however good” that remark.
Even if many of those accessing the article had a “legitimate interest” in it, which should allow the defense of qualified privilege, the search engine would be required to block search results for everyone or else would be required responsible for those who access it out of “vain curiosity,” Google said.
The technology company argued that it was not a publisher of the material because “a hyperlink is not, in itself, the communication of what it links to”. Websites should only be held liable if the hyperlink “actually repeats the defamatory accusation to which it links,” Google said.
“The inevitable consequence of not overriding the Court of Appeal’s decision is that Google will be required to act as a censor by excluding any web page complained of from its search results, even when, like here the web page may be a matter of legitimate interest to the substantial part of people searching for it and is published by a reputable information source.
Google argued that it should be entitled to the “innocent broadcaster” defense unless a plaintiff can explain what the article’s defamatory meanings were and why they could not be defended.
It also asked the High Court to reconsider the defense of qualified privilege, arguing that it “believed on reasonable grounds” that its users had a legitimate interest in accessing the article.
In 2018, the court gave the green light to search engine defamation suits in a case brought by Milorad Trkulja against Google over a series of images, autocomplete predictions and results he accused of be defamatory.
In September last year the High Court ruled in the Dylan Voller case that social media users, including media companies, were liable as publishers for third party defamatory comments on their posts on social networks.
In December, the Coalition released a bill to overturn the Voller decision by finding that an Australian person or business with a social media page was not the publisher of third-party comments made by other users.
If passed, the bill would see the social media company as the publisher, but provide it with a defense if it has a complaints procedure to help identify anonymous commenters.