Google has warned that it could be forced to “censor” search results if an Australian court ruling, which found it liable for defamatory material contained in hyperlinks, is not overturned.
The web giant made the comments in submissions [pdf] to the High Court, where it is appealing a defamation ruling that saw $40,000 in damages awarded to prominent Victorian criminal lawyer George Defteros.
Defteros successfully sued Google for linking to an article from The Age about his arrest on charges that were later dropped in its search results.
Google was asked to remove the link to the article in February 2016, but did not initially do so as it determined the article was from a “reputable source”.
Damages were awarded to Defteros in May 2020.
Google appealed the decision in the Victorian Court of Appeal, but it was dismissed last year as the Supreme Court of South Australia had already established that search engines can be liable as secondary publishers of defamatory material (Google Inc v Duffy 2017).
In its High Court submission, published on Friday, Google said that - if upheld - the decision has “broad implications for the operation, viability and efficacy of search engines and the use of hyperlinks generally on the web”.
It said the decision means Google will be “liable as the publisher of any matter published on the web to which its search results provide a hyperlink” to after a defamation complaint is made.
Google said the Victorian Supreme Court of Appeal decision, if upheld, “is likely to be devastating”, given the “core significance of hyperlinking to the effective functioning of the internet”.
"The inevitable consequence of leaving the... decision undisturbed is that Google will be required to act as censor by excluding any webpages about which complaint is made from its search results, even when, as here, the webpage may be a matter of legitimate interest to the substantial portion of people who search for it and is published by a reputable news source,” Google stated.
The web giant argued it was also contrary to Google Inc v Duffy and Crookes v Newton, a 2011 decision by the Supreme Court of Canada.
Google said a website should only be liable “if it uses the hyperlink in a manner that actually repeats the defamatory imputation to which it links”.
“A hyperlink is not, in of itself, the communication of that to which it links,” the submission to the High Court states.
“Nor... was the provision of the search result containing the hyperlink an act of participation in the communication of the ... article that could amount to publication.”
Google also argued it should be granted an “innocent disseminator” defence, which is - according to one definition - used to protect ISPs and other parties that "unwittingly publish defamatory matter without negligence on their part."
Best regards,
David James Connolly