The common law principles surrounding the concept of publication in relation to the tort of defamation were originally developed in the age of print. Naturally, advancements in technology and the popularity of online platforms, such as Facebook, and online search engines, such as Google, bring new challenges for the law to confront and accommodate for, requiring a consideration of the actual limits whereby an action falls within the concept of ‘publication’ for the purpose of the tort of defamation.
Fairfax Media Publications Pty Ltd v Voller  HCA 27 (Voller), and Google LLC v Defteros  HCA 27 (Defteros), are two relatively recent cases of the High Court that examine the parameters of the concept of ‘publication’ in the face of these challenges, with key differences in the facts of the two cases allowing them to be distinguished from one another and justifying outcomes which at first blush may appear to be at odds with another.
In September 2021, the High Court decided an appeal brought by three media outlets contesting allegations of defamation raised by Dylan Voller. Mr Voller rose to national prominence when he was presented wearing a spit hood and shackled to a restraining chair, in an adult Alice Springs correctional centre, shown on an episode of Four Corners. When three media outlets posted relevant material (in the form of hyperlinks to news articles concerning Mr Voller) on their individual public Facebook pages, it was made possible for users to leave comments underneath the posts. Voller alleged such posts were defamatory.
The majority of the High Court found that that the media outlets had indeed engaged in defamatory actions, but not on account of hyperlinks they posted to news stories. Rather, it was largely because it was found that they had in fact made voluntary actions toward intentionally inviting and encouraging comments about the articles from Facebook users, with the subsequent responses containing the allegedly defamatory materials. This reasoning was given adopting the approach in Webb v Bloch  HFCA 50 (Webb v Bloch) with the High Court confirming an ‘act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher’. A failure to establish publication, would mean a failure in a claim for the tort of defamation. The presence of such material being given a platform for communication by the media outlets themselves was also a factor that resulted in the majority of the High Court deciding in favour of Mr Voller.
Voller finds itself being compared to and distinguished in the case of Defteros, a case decided by the High Court on 17 August 2022, though it is interesting to note that the original judgment appealed from in Defteros was given before Voller was decided by the High Court.
George Defteros was a criminal law solicitor who acted for persons who became well known during Melbourne’s gangland wars, such as Dominic (“Mick”) Gatto. In 2004, Mr Defteros was charged with conspiracy to murder and incitement to murder Carl Williams, however, the charges were withdrawn by the prosecution in 2005. The prosecution was widely reported on, including by The Age. In 2016, Mr Defteros became aware that a Google search of his name produced a result containing an article by The Age (“Underworld Article”), the contents of which he claims defamed him.
Both the trial judge and the Court of Appeal found that Google was a ‘publisher’ of defamatory material. The trial judge asserted that a hyperlink was more than a simple reference to information, using the analogy of a librarian fetching a book and delivering it to a user with a relevant page bookmarked. The Court of Appeal agreed, finding that the search result was an ‘enticement’ or encouragement to the reader to click on the hyperlink to obtain more information about Mr Defteros.
The majority of the High Court disagreed, finding that a person has activated a search for particular information before the information is received and they ‘will employ the hyperlink if they think the webpage to which they are directed may provide the information they seek’. The High Court referred to Abella J in Crookes v Newton  3 SCR 269 to consider a hyperlink as essentially being “content-neutral”, asserting it only communicates the existence of something, not its contents, and as is the case with a reference, an act of a third party is required before access is gained to the content. Google was a ‘mere facilitator’ because it had no common intention shared with The Age that the searcher click on the hyperlink to the Underworld Article.
To distinguish from the facts in Webb v Bloch and Voller, the majority of the High Court states that in the present case, in its provision of the hyperlink, Google had no connection to the creation of the Underworld Article, did not encourage or approve its creation, and did not partake in placing the content on The Age’s website. In short, the former case involved a distribution of defamatory material, and the latter case encouraged the creation of the allegedly defamatory material, even providing a platform to facilitate publication.
The majority of the High Court concluded Google was not the publisher of defamatory material by communicating the Underworld Article in its search results.
The principles of the concept of ‘publication’ are clear and emphasise the notion of deliberate actions being taken in the dissemination of information, in more of an intentional and instrumental manner. Difficulty arises when these principles are applied to the particular facts of a case, particularly in the face of technological advancements.
Distinguishing the facts in Voller and Webb v Bloch was key to the majority’s judgment in Defteros and finding that providing search results which, in response to an enquiry, direct the attention of a person to the webpage of another and assist them in accessing its content does not amount to act of publishing defamatory matter.
The point here is that Google search results require the conscious actions of the person using the hyperlink by needing them to enter a specific search, in order to then be faced with options pertaining to their request. Whilst Google and its algorithms operate in the way intended by its owners, it does not on its own automatically provide results of the nature alleged. The article in contention was only accessed after the activation of a search for specific information. Once the search results are published, it is the user who then chooses which hyperlink to click. If the provision of a hyperlink by search engines like Google were to be classified as a bilateral process of communication for the components of the concept of publication in the tort of defamation, it would indeterminably open up the very bounds of what constitutes publication and expand the class of prospective defamation defendants. The High Court’s decision therefore bodes well for search engine operators in general and prevents the setting of a precedent that could have constrained the distribution of information. However, it is important to note that each case turns on its own facts and had the hyperlink in question itself displayed defamatory material rather than directing a user to another source, the High Court may have decided the case differently, noting “It is of course possible that search results may themselves contain matter which is defamatory.’
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