In a previous blog, we wrote about the High Court of Australia’s finding in the defamation action brought by Milorad Trkulja against Google Inc. that Google search results had the capacity to be defamatory. So we were interested to learn of the Supreme Court of Victoria’s decision in Defteros v Google LLC  VSC 219, which considered whether Google was a publisher of defamatory search results.
Mr Defteros was a criminal lawyer in Melbourne who was previously a partner of a firm which had acted for some notorious figures of Melbourne’s gangland wars. In 2004, Mr Defteros, along with one of these clients, had been charged with conspiracy to murder. However, the charges against Mr Defteros were withdrawn in 2005, and Mr Defteros returned to practising as criminal lawyer from 2007.
Media coverage of the prosecution of Mr Defteros in 2004 and 2005 remained available online and, in 2016, Mr Defteros became aware that a Google search for his name returned results including a snippet of an article published by The Age newspaper on 18 June 2004 (being the day after Mr Defteros was charged) entitled ‘Underworld loses valued friend at court’ (Underworld article). A removal request for the Underworld article was lodged with Google in February 2016, but the article remained in the Google search results until it was taken down by The Age in December 2016. The search result (which contained a hyperlink to the full article), together with the article itself (Web Matter), were the subject of a proceeding for defamation brought by Mr Defteros against Google in 2016.
Subsequently, in 2017, Mr Defteros became aware of further Google search results which he alleged were defamatory. These were a composite image of four photographs (three of gangland figures and one of Mr Defteros) (First Matter), an article published by The Age on 3 August 2004 entitled ‘Gangland’s price of peace’ (Second Matter), a composite image of two photographs of Mr Defteros and some text (Third Matter) and a Wikipedia article entitled ‘Melbourne gangland killings’ (Fourth Matter). Google was notified of its publications of the First, Second, Third and Fourth Matters by way of concerns notices sent in September 2017. These four matters were the subject of a further proceeding brought by Mr Defteros against Google for defamation in 2017.
The issues for determination by the Court in the 2016 and 2017 proceedings included:
- whether Google published the Web Matter and/or the First, Second, Third and Fourth Matters as a secondary publisher;
- whether Google was an innocent disseminator of the Web Matter and/or the First, Second, Third and Fourth Matters at common law and/or under statute; and
- whether the Web Matter and/or the First, Second, Third and Fourth Matters were defamatory.
Richards J relevantly found (at ) that:
- Google published the Web Matter, the images that were the First Matter and the Third Matter and the articles that were the Second Matter and the Fourth Matter;
- Google was:
- an innocent disseminator at common law of the Web Matter until 11 February 2016 (which was found to be “a reasonable time after Google received notice on 4 February 2016 that its search results included the Web Matter”);
- an innocent disseminator at common law of the First, Second Third and Fourth Matters until 27 September 2017 (which was found to be “a reasonable time after Google received notice on 20 September 2017 that its search results included the four matters”);
- not an innocent disseminator of the Web Matter or the First, Second, Third and Fourth Matters under statute;
- The Web Matter and the Fourth Matter were defamatory;
- The statutory defence of fair report applied in relation to the Second Matter and the statutory defence of triviality applied in relation to the First, Second, Third and Fourth Matters; and
- Mr Defteros was entitled to general damages in the 2016 proceeding (but not aggravated damages) and he was not entitled to damages in the 2017 proceeding (which proceeding was dismissed).
As to publication, Google argued that it was not liable as a secondary publisher because “its search engine is fully automated and does not intend the communication of any particular words or images, including any third party webpage to which a user might navigate” (at ).
This submission was rejected by Richards J, who found that the search engine was not a “passive tool“, as it was “designed by humans who work for Google to operate in the way that it does, and in such a way that identified objectionable content can be removed, by human intervention, from the search results that Google displays to a user” (at ).
Accordingly, Google was found to be a publisher of search results it returns, but only as a “secondary publisher” and only once it had received notice of particular search results and had reasonable time to consider the notice and remove the content (at  and ).
As for the third party webpages which search results linked to, Google’s submission that “it does not publish a defamatory article on a third party webpage, reached by clicking on a hyperlink in a Google search result, unless the search result itself incorporates the defamatory material from that webpage” (at ) was also rejected by her Honour, who noted that Google facilitates the publication and communication of such content by providing a hyperlink within the search results (at ).
In relation to defamation, Richards J found that:
- the imputation that Mr Defteros “crossed the line from professional lawyer for, to confidant and friend of, criminal elements” would have been conveyed to the ordinary, reasonable reader of the Web Matter (at [8(c)] and );
- an important element which lead to this finding was the fact that “neither the search results nor the article gave any indication that the charges against Mr Defteros were later withdrawn” and this was “not apparent from the context in which Google published the Underworld article” (at );
- none of the imputations said to arise from the First, Second and Third Matters were made out by Mr Defteros (at [8(c)], ,  and );
- however, the imputation that Mr Defteros “was a criminal associate of the Melbourne underworld group, ‘The Carlton Crew’” would have been conveyed to the ordinary, reasonable reader of the Fourth Matter (at [8(c)] and  to ); and
- an important element which lead to this finding was the fact that “Almost all of the users who clicked through to the article … did so after searching for ‘melbourne underworld figures’. That is, they were not seeking information about Mr Defteros the lawyer, they were looking for information about Melbourne underworld figures” (at ).
Relevance of the decision
This is an important decision, as it confirms that Google search results can be defamatory and that Google may be held liable for those search results as a secondary publisher. However, unless Google is put on notice of potentially defamatory search results, then it seems unlikely that such a finding would be made.
Accordingly, it is important that anyone concerned about potentially defamatory search results appearing on Google notifies Google of those publications prior to taking any further action. This involves completing a Google form and identifying the defamatory material (and the relevant URL), explaining why the material is defamatory (citing the relevant legislation and setting out any imputations which might arise) and pointing to exact references from the material (e.g. quotes or an image) which are defamatory. We can assist with drafting this form and taking any further or additional steps, such as issuing a Concerns Notice.
Should you have any questions, please contact a member of Thomson Geer’s Intellectual Property team for a confidential discussion.
Georgia Campbell | Associate | +61 7 3338 7541 | firstname.lastname@example.org