Link to news does not make Google liable for defamation, Australian court rules

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Getty Images | justin sullivan

Google cannot be held liable for defamation simply for providing hyperlinks to other web pages, Australia’s highest court has said. ruled today. By itself, providing a URL is not “participating in the communication of a defamatory statement which happens to be at that address… In reality, a hypertext link is only a tool allowing a person to navigate to another webpage,” the High Court of Australia Ruling said.

The Case concerns a Google search result linked to a 2004 article published by The Age under the title “Underworld loses precious friend at court”. The article describes Melbourne-based barrister George Defteros, who was charged with conspiracy to murder and incitement to murder the day before it was published. The charge was dropped in 2005.

Defteros sued Google after learning that a Google search of his name produced a link to the article and an excerpt. Google refused to remove the article from search results despite a request from Defteros in 2016.

A lower court judge “concluded that the Underworld article conveyed a defamatory charge that the respondent had gone from being a professional lawyer to being a confidant and friend of criminal elements”, noted today’s decision. The lower courts decided that Google “published the defamatory matter because the provision of the search result was instrumental in communicating the content of the Underworld article to the user, in that it helped when it is published,” according to a summary of today’s decision provided by the High Court of Australia.

Google had been ordered to pay Defteros $40,000 (about $27,710 in USD). But overturning the lower court rulings, a 5-2 majority of the High Court found that Google failed to publish the defamatory case.

Hypertext link “simple easy access”

Google “did not assist The Age in communicating the defamatory statements contained in the Underworld article” because the “provision of a hyperlink in the search result merely facilitated access to the Underworld article and was not not an act of participation in the bilateral process to communicate the contents of this article to a third party,” the summary of the decision reads. “There was no other basis for finding publication because the appellant had no participated in the writing or dissemination of the defamatory material.”

Defteros did not sue The Age for defamation, but he sued the author of the article for a book containing a chapter based on the article. The case was settled in mediation, which resulted in changes to the book.

Today’s ruling might have been different had Google been paid to promote The Age article. The appeal “does not provide an opportunity to consider whether the conclusion would be different with respect to hyperlinks which, in agreement with a third party, are promoted by the appellant as a result of a search request” , indicates the judgment. “Nor have any issues been raised in this call about a service provided in the aggregation of news results. Suffice it to say that it is possible that the caller and a third party share a common intention to publish the content of a third-party web page which, by agreement between the caller and the third party, is promoted as a search result.”

In the USA, Section 230 of the Communications Decency Act states: “No provider or user of an interactive computer service shall be deemed to be the publisher or speaker of information provided by another information content provider.” Although there have been calls to change the law, the Electronic Frontier Foundation said Section 230 “has allowed innovation and free speech online to thrive” by protecting online intermediaries who host or republish speech from “laws that could otherwise be used to hold them legally liable for what others say and do”.

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