By Winnie Lok, Solicitor

1 June 2020

Recently, Google was ordered by the High Court to pay $40,000 in damages to Melbourne lawyer George Defteros for publishing results that defamed him. This decision once again brings to light the question of the extent to which internet operators such as Google and Facebook and other digital providers are liable for third party content published on their platforms. Are they simply an innocent messenger or should they be considered a publisher liable for defamation?

As internet technology develops, many internet intermediaries have become the target of defamation litigation. Pressure is mounting for digital platforms to be held to higher standards of accountability as shown by the ACCC Digital Platforms Inquiry and the regulatory outcomes of that Inquiry which are now unfolding. The issue has hit the headlines in a big way with the US President Trump recently pushing for stronger regulation for Twitter and other social media platforms. The decision in the Defteros case is controversial as it deals again with this vexed issue of just how liable should digital platforms be for third-party content. What is becoming very clear is that our laws are out of step with the influence and reach of these technologies, but our courts are willing to stretch them to hold these parties accountable. The case has also broader ramifications for online providers, including businesses that operate or moderate forums, online tools or comparison services, or Facebook pages.

What Happened?

In the early 2000s, Defteros ran a criminal law firm in Melbourne whose clients included many prominent gangland figures. In 2004, Defteros was charged with conspiracy to murder Carl Williams, his father and bodyguard. Defteros denied the charges and the charges were subsequently withdrawn in 2005. As a result of the charges, Defteros surrendered his practising certificate but by 2014, he had re-established his legal practice.

In 2016, Defteros became aware that when searching his name on Google, the search results produced an article published by The Age in 2004 in relation to his charges, headed “Underworld loses valued friend at court”. Defteros notified Google of the search result and requested that the article be removed from the search results. After Google’s failure to remove the article, Defteros instigated proceedings against Google for defamation.  The defamation claimed, was that the search results would lead readers to think that he was more than just a lawyer, he had become a confidant and friend of criminals.

Defamation: What Constitutes ‘Publication’?

In order to successfully argue defamation, the following elements need to be present:

1. there was a communication or publication made by a third person;
2. the communication concerns or identifies the plaintiff; and
3. the communication was of a defamatory matter.

The substantive issue in the Defteros case was whether Google could be liable as a publisher (element 1) for the content that appears in its search results. At first glance, this may seem like an outlandish claim. How could Google be responsible for automated results of third-party content that are dependent on the keywords entered by users? However, this is not Google’s first brush with a defamation lawsuit. In a similar scenario in 2016, Milorad Trkulja was successful in claiming that Google was responsible for search results and auto-completions that were defamatory as it linked Trkuljia’s name and image to Melbourne’s criminal underworld. The High Court ruled that Google’s participation in the communication of the results to users made it the publisher of the search results.

The test of publication was established in Webb v Bloch [1928] 41 CLR 332, namely that a person is considered a publisher if they intentionally or negligently assist in the publication of the defamatory material. Further to this, Byrne v Deane [1937] 1 KB 818 raised that publication by way of omission may give rise to defamation liability. This means that a person can be responsible for publication of defamatory material by failing to remove it from where it was published.

In Defteros’ case, it was found that Google was liable for the publication by way of omission. Google’s failure to remove the article after being notified by Defteros meant that Google was responsible for the continued publication of the defamatory content. In addition, despite its search engine being fully automated, Google was considered a publisher on the basis that objectionable content could be identified and removed from the platform by human intervention.

There are defences available under the Defamation Act 2005 (Vic) and its counterparts in Australia. Google attempted to rely on the defence of ‘innocent dissemination’ provided under section 32 of Defamation Act 2005 (Vic). This defence is commonly used by subordinate publishers i.e. anyone who is not the author or primary publisher of the material. In order to successfully argue this defence, the defendant must prove that as a secondary publisher exercising reasonable care in the relevant circumstances, they did not or would not have known that the material was defamatory. However, the court found that innocent dissemination was not available to Google in this case as they were aware of the material after being notified by Defteros. Thus they were no longer an ‘innocent’ messenger. The court found that the defence had lapsed seven days after Google had been put on notice by Defteros of the defamatory material.

Liability of Internet Intermediaries as Publishers

Given the evolving nature and volume of content being published on digital platforms including search engines and social media, internet intermediaries have been increasingly exposed to legal action and liability for third-party content displayed on its platforms. The issue of liability for publishing defamatory material can be compared to liability for publishing misleading and deceptive representations.

Not only has Google been a target of defamation lawsuits in recent years, the search engine company was the subject of an Australian Competition Consumer Commission (ACCC) investigation which ultimately went to the High Court. The ACCC claimed Google had engaged in misleading or deceptive conduct in contravention with section 18 of the Australian Consumer Law by displaying sponsored ads that were generated through its AdWords by advertisers in its search results. The court decided that Google’s conduct in publishing the sponsored ads was merely implementing the advertiser’s instructions, and in no way was Google endorsing the information displayed in the advertisement. In addition, the Court took into consideration that consumers would understand that the ‘sponsored’ links are advertisements that have been paid for by businesses in order to appear on search results pages.

Similar to the Defamation Act 2005 (Vic), the Australian Consumer Law (under Schedule 2 of the Competition and Consumer Act 2010 (Cth)) provides similar protections in relation to publication of advertisements. Under section 251 of the Australian Consumer Law, it stipulates that a defendant is not liable for breaching the Australian Consumer Law if it could be proved that they a) publish or arrange for the publication of advertisements; b) received the advertisement for publication in the ordinary course of business; and c) did not know or had no reason to suspect that the publication of the advertisement would result in contravention of provisions under the Australian Consumer Law. In the above ACCC case, , the Court indicated that for this defence to succeed, the publisher may need to show that they had appropriate systems in place to prove that they reasonably did not or would not have known that the advertisement contained misleading or deceptive representations.

Contrary to the decision in Defteros, the decision here was favourable for Google and internet intermediaries alike. However, as always, the facts of each individual case need to be considered. Had Google been notified that the sponsored ads contained misleading and deceptive representations and failed to remove it within a reasonable time, would this have resulted in a different judgment? This remains unclear.

Key Takeaways

The decision in the Defteros case has broader implications on Google, other search engines and platforms, but even other online businesses including moderators of online forums, operators of Facebook business pages or review platforms. It reinforces that a business does not need to be the primary or original publisher of defamatory content to be exposed to liability under defamation law for damages. An online business may not be merely an innocent messenger, able to distance itself legally from material published via its platform or page. Once it is notified that material is potentially defamatory, then it may then risk being liable for that material as a publisher if it does nothing. This same principle can be applied to conduct that is considered misleading or deceptive. Although Australian legislation provides defences in these situations, this does not mean that these defences are always available and will depend on circumstances as illustrated in the cases discussed above.

With the increase of content available in the public domain, this serves as an important reminder to all users and operators of online platforms to exercise extra caution as to the content they publish or allow to be published on their platforms.