Google is a ‘Publisher’ and Can be Sued for Defamation

by Sonia Hickey & Ugur Nedim

Tech giant Google has been ordered to pay $40,000 in damages to an Australian lawyer after the Supreme Court of Victoria found the internet giant had enabled its search engine to publish defamatory content about him.

The case centred around articles and images published by Victorian newspaper ‘The Age’ in 2004, after the lawyer, Mr George Defteros, was charged with conspiracy over the murder of Carl Williams and other underworld figures.

At the time, Mr Defteros ran a law firm in Melbourne whose clients included organised criminals.

The charges against him were dropped the following year, but Mr Defteros had by then already surrendered his practising certificate.

The claim

Mr Defteros took on the internet giant, over searches of him that appeared on Google in 2016 and 2017, which referenced articles and contained hyperlinks to material that defamed him, including an entry in the online encyclopedia, Wikipedia.

The defence

Google responded that it was not the publisher of the material, and therefore had not defamed him. In its defence, Google’s lawyers submitted that the automation of its search engines meant that it was not an intentional communicator of words or images, particularly if a user clicked through to another website.

Google’s lawyers submitted that it was for the “common convenience and welfare of society” that their client provides search results which are relevant to search terms, going so far as to say the company has a “duty” to respond to searches.

The lawyers explained it would be have “chilling effect on freedom of speech” for Google users not to be able to readily locate relevant content.

The judgment

But in a lengthy judgment, Justice Richards rejected Google’s defence, finding the company’s search engine is not merely a ‘passive’ tool.

Rather, her Honour found that:

“… Google becomes a publisher of the search results that its search engine returns to a user who enters a search query.”

She further found that providing the hyperlink within the search results “amounted to publication of the webpage”.

“It is designed by humans who work for Google to operate in the way it does, and in such a way that identified objectionable content can be removed, by human intervention.”

She made clear it was incumbent on the company to remove offending content from its search engine results upon becoming aware it is defamatory.

Damages

Her Honour found the damage done by Google’s defamation to be “at the less serious end of the scale”, as only a “limited” number of people had seen the publication and Mr Defteros was able to rebuild his legal practice.

She noted that The Age had removed the defamatory article in 2016, and ultimately awarded damages in the sum of $40,000.

Google is reviewing the decision and may decide to appeal.

A similar case in 2018

In 2018, a similar ruling was made in favour of Milorad ‘Michael’ Trkulja who was shot in the back at a Melbourne restaurant in 2004.

In subsequent Google searches including “Melbourne criminal underworld photos”, Mr Trkulja’s image was posted alongside those of notorious crime figures. The search engine’s auto-complete function also came up with suggestions such as “is a former hit man”, “criminal” and “underworld” when Mr Trkulja’s name was entered.

The Melbourne man first sued Google in 2012 for defamatory content posted by third parties, and won.He then began proceedings in relation to the allegedly defamatory images and autocomplete predictions, but that case was blocked by the Victorian Court of Appeal (VCA) on the basis that the case had no real prospects of success.

During those proceedings, Google’s lawyers submitted that it is generally accepted that search results for crime figures turn up images for their victims and family members, witnesses and even actors in documentaries and movies relating to those figures.

The VCA agreed, additionally finding that Google could not be held legally responsible for automatically generated online search results. Mr Trkulja then took the VCA decision to the High Court of Australia. Judges unanimously overturned the decision, ruling that  it could reasonably be inferred from the searches that a relatively unknown person, such as Mr Trkulja, might be connected with criminality or the underworld.

Defamation laws in the digital age

In recent years there has been a strong push to update and adapt existing defamation for the digital age. Currently defamation law is set out by states and territories and it is much the same across all jurisdictions. Defamation law is designed to protect all Australians from false or damaging statements being made about them that may cause harm to their personal or professional reputations and enables anyone who believes their reputation has been damaged to see retribution through the courts.

Changes to defamation laws need to reflect the democratise freedom of speech, and also allow for the free distribution of information, ideas, and opinions too.

But these high-profile cases do set legal precedents when it comes to who is responsible for the content that appears online. In recent years civil defamation suits have been on the rise. In one instance a Sydney man was forced to pay his neighbour $80,000 over remarks posted on an online community page. While the page was a ‘public’ forum, individuals need to be aware that they can also be held accountable for what they post on their personal pages too, as well as what they say in reviews and in messages and other contact. There are a range of laws which govern online activity and interaction with others as well as how information is shared.

Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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