High Court rules out defamation via hyperlink

By Hamish McNair and Benjamin Wilson

A 5-2 majority of the High Court has today held that the mere provision of a hyperlink to a defamatory matter does not constitute the act of publishing that material. This has potentially significant ramifications for online defamation, particularly social media posts via platforms such as Twitter, Facebook and LinkedIn where users frequently include links to third party defamatory material.

The judgment handed down today in the matter of Google LLC v Defteros[1] arose in the context of Google search results in which a hyperlink was provided to a defamatory article published by The Age.

Although the decision arose in the specific context of search engines, it has broader ramifications for hyperlinks provided in other contexts and is likely to limit the number of potential parties against whom defamation action can be taken. This is potentially significant where the primary publisher of online defamatory material is unknown or impecunious.

Today’s decision of the High Court also follows similar findings reached in other jurisdictions such as Canada and the United States, which provides a welcome level of uniformity for the regulation of global interaction in the digital age.

The facts

The respondent, George Defteros, is a Melbourne criminal lawyer. He acted for a number of individuals who became notorious in the context of the Melbourne ‘gangland wars’, including Alphonse Gangitano, Mario Condello and Mick Gatto. In June 2004, Mr Defteros was charged with conspiracy to murder and incitement to murder Carl Williams and his associates which was widely reported, including in an article published in The Age in print and online on 18 June 2004 under the headline ‘Underworld loses valued friend at court’ (Article).

The charges against Mr Defteros were subsequently withdrawn in August 2005; however, the Article remained online until 24 December 2016.

In February 2016, a representative of Mr Defteros completed a removal request form on Google’s website in relation to a search result which displayed a hyperlink and ‘snippet’ of the Article in response to a search by a user for Mr Defteros’ name. The form contained some inaccuracies in relation to the dealings between the publisher of The Age and Mr Defteros, but nevertheless brought to Google’s attention the fact that Mr Defteros considered the Article to be defamatory of him.

Google refused to remove the search result which included a hyperlink to the Article and in March 2016 encouraged Mr Defteros to resolve the dispute directly with The Age. In August 2016, Mr Defteros issued a concerns notice to Google in relation to the Article which he claimed had been published by Google by reason of the search result.

In December 2016, Mr Defteros commenced defamation proceedings against Google in the Supreme Court of Victoria. Mr Defteros did not allege that the search result itself defamed him, but rather that the Article did. He claimed that by publishing the search result containing the hyperlink and ‘snippet’ of the Article, Google had published the Article.

The publisher of The Age was not joined as a party to the defamation claim due to a previous arrangement reached between it and Mr Defteros in relation to the Article which resulted in its removal from The Age website in December 2016.

Procedural background

In May 2020, Justice Richards in the Supreme Court of Victoria found in Mr Defteros’ favour and ordered that Google pay Mr Defteros $40,000 in damages in relation to the Article.[2] It was a key finding of her Honour that Google had published the Article and that its pleaded defences of innocent dissemination and qualified privilege were not made out.

Google subsequently appealed the decision of Justice Richards, which was upheld by the Victorian Court of Appeal in May 2021.[3] Special leave to appeal to the High Court was sought by Google and granted in December 2021, with the matter heard by the High Court in May 2022.

Findings and reasoning of the majority

In separate judgments handed down by Chief Justice Kiefel and Justice Gleeson (joint), Justice Edelman and Justice Steward (joint) and Justice Gaegler, the High Court rejected the findings of the courts below and held that Google was not a publisher of the Article.

Chief Justice Kiefel and Justice Gleeson, with Justice Gaegler agreeing, focused on the absence of participation by Google in the publication of the Article. In particular, their Honours held that the publication of the search result by Google had no connection to the Article, was in no way approved or encouraged by Google and it played no role in the Article being placed on The Age’s website.[4] Their Honours attributed no weight to the submission that Google had published the search result in the course of deriving a commercial benefit.[5]

In explaining their conclusion, their Honours drew an analogy to a hypothetical example of a person who is asked by a customer for directions as to where they can find a particular magazine in a retail outlet. Their Honours observed that if that person gave directions to the customer, or even escorted them to where the magazine was located or sold, it could ‘hardly be suggested’ that the person had communicated any defamatory matter contained in the magazine.[6]

Justice Gaegler separately observed that the link to the Article in the search result was ‘organic’ in the sense that it was not paid for by The Age or promoted by Google.[7] In these circumstances, his Honour concluded that ‘Google does not, merely by providing the search result in a form which includes the hyperlink, direct, entice or encourage the searcher to click on the hyperlink.’[8] This leaves open the question of how such paid or promoted links may result in a finding in future cases that publication of the hyperlinked material has occurred.

In their separate judgment, Justice Edelman and Justice Steward reunited from their dissenting judgement in the decision of the High Court in Fairfax Media Publications Pty Ltd v Voller[9] (Voller) concerning liability of operators of social media accounts for defamatory posts made by third parties. As they did in that judgment,[10] their Honours concluded that Google was not liable as publisher because there was no commonality of intention between Google and The Age in relation to the Article.

In relation to the present case, their Honours observed that:

The critical step that results in publication is that of the person searching and clicking on the chosen hyperlink. The role of the appellant rose no higher than a mere facilitator because the appellant had no common intention shared with The Age that the searcher click on the hyperlink to the Underworld Article. In that respect, a clear distinction must be maintained between the act of publishing the selection of search results and snippets, which the appellant does, and the act of conveying material on third-party webpages.’[11]

Their Honours also highlighted that the publication of a hyperlink and a ‘snippet’ of the Article by Google in the search results ‘…cannot sensibly be equated with publication of the entire contents – that is, every single word, picture or symbol – of the webpage from which those words or phrases have been taken.’[12]

Findings and reasoning of the minority

In separate dissenting judgements, Justice Gordon and Justice Keane rejected Google’s appeal and approved the decisions of the courts below that Google was liable as publisher and did not make out its pleaded defences.

Justice Gordon placed significant emphasis on the judgement of the court in Voller handed down in September 2021 and stated that her finding that Google was liable as publisher of the Article was consistent with the strict publication rule restated in that case. Her Honour reinforced this view in the following observation concerning the application of common law principles to modern scenarios:

The common law was not seen to require modification in order to deal with the advent of the telegraph or the telephone, radio or television, the internet or social media. And it has not been shown to require modification in order to deal with the Google search engine system and the hyperlink in this case.’[13]

Her Honour observed that it was irrelevant that Google was unaware of the defamatory content of the Article and found that Google and The Age had the relevant common intention to publish the Article through a process implemented by Google of specifically identifying news articles from reputable sources and ranking them higher in search results.[14]

Adopting a similar approach to her reasoning in Voller,[15] her Honour also placed emphasis on the commercial aspects of the Google search engine in supporting her conclusion that that Google was a publisher when she observed that:

Google's attempt to portray itself as passive has an air of unreality. Having taken action to obtain a commercial benefit by creating and operating a search engine that facilitates access to news articles, it cannot deny that it is involved in the publication of those news articles.’[16]

Key learnings

This decision represents a narrowing of the strict common law publication rule in relation to the tort of defamation notwithstanding the restatement of the ‘vast’ scope of the rule in the Voller decision less than 12 months ago.[17] The significant references made to decisions in other jurisdictions, particularly Canada and the United States, suggests that the court was influenced by a desire to follow the common law position in other jurisdictions rather than create a divergence.

In a practical sense, the decision narrows the number of potential defendants a plaintiff may sue for defamation in relation to a particular matter published online. In circumstances where the primary publisher, in this case The Age, is unknown or impecunious, it has been advantageous for plaintiffs to sue secondary publishers in their place. The conclusion that this route is now closed, at least in relation to hyperlinks, is good news for those who share links online and bad news for victims of digital defamation who have nowhere else to turn.

[1] Google LLC v Defteros [2022] HCA 27
[2] Defteros v Google LLC [2020] VSC 219 
[3] Defteros v Google LLC [2021] VSCA 167
[4] Google LLC v Defteros [2022] HCA 27 at [34]
[5] Google LLC v Defteros [2022] HCA 27 at [54]
[6] Google LLC v Defteros [2022] HCA 27 at [47]
[7] Google LLC v Defteros [2022] HCA 27 at [70]
[8] Google LLC v Defteros [2022] HCA 27 at [74]
[9] (2021) 95 ALJR 767
[10] Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767 at [139] (Edelman J) and [162] (Steward J)
[11] Google LLC v Defteros [2022] HCA 27 at [220]
[12] Google LLC v Defteros [2022] HCA 27 at [237]
[13] Google LLC v Defteros [2022] HCA 27 at [155]
[14] Google LLC v Defteros [2022] HCA 27 at [110]
[15] Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767 at [102] (Gaegler and Gordon JJ).
[16] Google LLC v Defteros [2022] HCA 27 at [112]
[17] Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767 at [31] (Kiefel CJ, Keane and Gleeson JJ)


Hamish McNair

Hamish is a commercial disputes lawyer, with expertise in urgent relief applications, defamation matters and defence of class actions.

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