Google warns of a “devastating” impact if the High Court fails to overturn a decision involving hyperlinks and defamation. This comes after a man prevailed in suing Google over search engine results.
In its submissions, the tech giant said it would be forced to “censor” search results, if the decision wasn’t reversed.
Suing Google for search results
Victorian solicitor George Defteros sued Google after an allegedly defamatory article appeared in search results when searching ‘George Defteros”. The Age published the article in 2004 and related to charges against him which prosecutors had since dropped.
Mr Defteros argued that Google should be considered to be a ‘publisher’ in defamation law . Mr Defteros lawyers’ notified Google of the defamatory article in February 2016, making a removal request. Google did not remove it until December that year. In that time the people accessed the article 150 times.
In response, Google argued that it was not the publisher as it was not an intentional communicator of words or images. They argued that this was because its search engine operated on an automatic basis. It further argued that this was specifically so when a user clicked through to another website. (They did not pursue his argument on appeal).
A similar argument was ran in the High Court in the matter of Voller.
Google: Hyperlinks not defamatory if they don’t repeat defamation
Google argued that it was not the publisher of the material.
“A hyperlink is not, in and of itself, the communication of that to which it links”.
Google argued that websites should only be liable if the hyperlink “actually repeats the defamatory imputation to which it links”.
The company states that it would be “required to act as a censor” if the court did not overturn the decision. Google said this was an “inevitable consequence”.
The tech giant stated it would have to exclude any webpage from search results where someone made a complaint. This would be even where “the webpage may be a matter of legitimate interest to the substantial portion of people who search for it and is published by a reputable news source.”
Google argues innocent dissemination, qualified privilege
Google argued it should have entitlement to the “innocent disseminator” defence. This would be unless a complainant could explain what the defamatory meanings were and why they could not be defended.
The defence of innocent dissemination intends to protect people who unwittingly publish defamatory matter without negligence on their part. This often includes:
- librarians and
- Internet service providers (ISP)
However, the defence does not stand if they had the knowledge of the content. However, it’s unclear as to exactly what level of knowledge.
It also asked the High Court to reconsider the defence of qualified privilege. Google argued it “believed on reasonable grounds” that its users had a legitimate interest in accessing the article.
In conclusion, in order to succeed in qualified privilege, the defendant must prove:
- The defendant gave someone some information on something where they had an interest in receiving that information;
- The defendant was reasonable in providing that information; and
- The person wasn’t acting with malice.