High Court hears argument in Google LLC v Defteros [2022] on 3 May 2022

May 9, 2022 |

The Full Bench of the High Court heard argument in Google LLC v Defteros [2022].  It is a case of considerable interest to defamation practitioners.  The key issue is whether a search engine a publisher of defamatory material on a third party website to which that search engine provides a hyperlink when the search result on its own conveys no defamatory imputation.  Also Google seeks a ruling on what is required to notify the search engine of defamatory publication for the purposes of the common law doctrine of innocent dissemination and the statutory defence under section 32 of the Defamation Act 2005. 

The transcript of oral argument before their Honours can be found here.

It is an appeal from a decision from the Victorian Court of Appeal in Defteros v Google LLC [2021] VSCA 167 (17 June 2021).  Interestingly on that occasion the appellant, Defteros, was unsuccessful.  Google’;s cross application for leave to appeal was refused. 

Special leave was granted on 10 December 2021 conditional upon Google paying Defteros’s costs of the appeal and not disturbing the costs orders in the Court of Appeal and at trial.  The transcript of the Special Leave Application can be found here.  In short, there is a public interest in resolving the issue. 

The essence of Google’s submissions is that the trial judge and the Victorian Court of Appeal erroneously found that the provision of a hyperlink was participation in the communication of defamatory material for the purpose of publication.  

The submissions of both parties can be found on the High Court website  here

The catchwords are:

Defamation – Publication – Qualified privilege defence – Common law qualified privilege – Statutory qualified privilege – Where respondent alleged that certain webpages were published by appellant and were defamatory – Where two webpages consisted of set of search results displayed on website www.google.com.au in response to search of respondent’s name and hyperlinked article, included in search results, entitled “Underworld loses valued friend at court” (Web Matter) –  Where appellant alleged it was for “common convenience and welfare of society” for appellant to return search results that hyperlinked articles published by reputable sources – Where appellant claimed material was matter of considerable public interest such that recipients had necessary interest in material for purposes of s 30(1) of Defamation Act 2005 (Vic) – Whether appellant published Web Matter – Whether common law qualified privilege defence applies – Whether the statutory qualified privilege defence in s 30(1) applies.

The ABC has neatly summarised the issues, published prior to the one day hearing on 3 May 2022 (as in the morning of), at High Court asked to decide if search engine giant Google is a publisher of content which provides:

Google and Melbourne lawyer George Defteros are set for a showdown in the High Court of Australia over whether the search engine giant is classified as a publisher or not.


Mr Defteros successfully sued Google in 2020 for $40,000, after it failed to take down a story he said had defamed him.

The story was originally published in The Age newspaper, and detailed how, in 2004, Mr Defteros had been charged with conspiracy and incitement to murder underworld figures, including Carl Williams.

But in 2005 the charges were withdrawn.

The initial ruling found that the article had conveyed the defamatory imputation that the respondent had crossed the line from professional lawyer for, to confidant and friend, of criminal elements.

Mr Defteros had reached a settlement by way of mediation, with the author and publisher of a book that had included a chapter based on the Age’s article, in 2010.

In 2016, a removal request was made to Google, which was still directing searches to the article.

Google refused after it emerged the lawyer who made the application had misrepresented the situation, when he said Mr Defteros had sued the Age and it had agreed to remove the article as part of a settlement.

Mr Defteros had not sued the Age and the newspaper had not agreed to remove the article, although it did take it down in December 2016.

Submissions by Google to the High Court rejected the assertion the link to the story amounted to publishing.

“Just as in the case of a modern-day telephone call, where the caller communicates directly with the listener … with no publication by the company itself.”

But lawyers for Mr Defteros said Google was an active participant.

“The Google search engine is not a passive tool, such as the facility provided by a telephone company,” submissions from Mr Defteros argue.

Google also argued it had a common-law qualified privilege defence.

But in their submissions, lawyers for Mr Defteros suggested they would tell the court that qualified privilege only applied if the person searching had a legitimate interest in the information beyond gossip or curiosity.

His lawyers said that the common law rules about publication were clear, and there should be no special rule for providers of hyperlinks.

Both sides have referred to last year’s landmark High Court ruling, which found major media companies were liable for comments posted on their Facebook pages about Northern Territory man Dylan Voller.

Mr Voller’s treatment as a detainee sparked a royal commission into the Northern Territory’s youth detention system, after images of him shackled to a chair wearing a spit hood were revealed by the ABC’s Four Corners program.

Lawyers for Google said the ruling affirmed that the process in which a defamatory matter was communicated must be active and voluntary, which it argued it was not.

But lawyers for Mr Defteros said Google was the publisher under principles developed by the Voller ruling, by facilitating and providing a platform, even if it did not intend to communicate the defamatory matter in question.

“The search result enticed the searcher to click on the hyperlink,” submissions from Mr Defteros said.



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