Australian court overturns 'Google is a publisher' decision
- Reference: 1660721528
- News link: https://www.theregister.co.uk/2022/08/17/google_australia_not_defamation_publisher/
- Source link:
That case concerned a lawyer named George Defteros, who was charged with conspiracy alongside one of his prominent criminal clients.
The charges against Defteros were dropped, but for years afterwards Google search results produced a link to a story in local broadsheet The Age – known as "the Underworld article" – reporting he had been charged.
[2]
Defteros was miffed that the allegation remained on the record, and that Google helped people find it. So he sued – and won.
[3]
[4]
Google appealed to the High Court, Australia's ultimate jurisdiction. It won, and has had orders made against it in the lower court set aside
A [5]statement [PDF] from the High Court explains that the article about Defteros was defamatory, but that a majority of justices felt Google "did not lend assistance to The Age in communicating the defamatory matter contained in the Underworld article to the third-party user."
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"The provision of a hyperlink in the Search Result merely facilitated access to the Underworld article and was not an act of participation in the bilateral process of communicating the contents of that article to a third party," the statement adds.
Google is therefore not a publisher and can't defame people with search results under Australian common law.
[7]Australia will force social networks to identify trolls, so they can be sued for defamation
[8]Australia rules Facebook page operators are legally liable for user comments under posts
[9]Spyware developer charged by Australian Police after 14,500 sales
The full [10]judgement [PDF] reveals that the decision was not unanimous. Two dissenting justices worried about a number of issues –including that Google did not act to remove the offending article from its indices, and that the adtech giant surely knows it has a symbiotic relationship with newspapers.
Readers of the 97-page judgement looking for ways to keep Google on the hook for search results will therefore find some material to work with.
But in the many jurisdictions that share legal DNA with Australia, the decision will be read more closely for the reasoning that found Google is not a publisher.
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The Land Down Under remains a tricky place for online defamation, as a decision that [12]comments on social media can defame remains in place. The nation also retains powers to force tech players to identify users and produce their encrypted messages. ®
Get our [13]Tech Resources
[1] https://www.theregister.com/2020/04/30/google_publisher_australian_court_rules/
[2] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2Yvy8RwbTBDhx9Fn4djRxrAAAAIw&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0
[3] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44Yvy8RwbTBDhx9Fn4djRxrAAAAIw&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[4] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33Yvy8RwbTBDhx9Fn4djRxrAAAAIw&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[5] https://cdn.hcourt.gov.au/assets/publications/judgment-summaries/2022/hca-27-2022-08-17.pdf
[6] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44Yvy8RwbTBDhx9Fn4djRxrAAAAIw&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[7] https://www.theregister.com/2021/11/29/australia_troll_bill/
[8] https://www.theregister.com/2021/09/08/australia_facebook_comments_liability_ruling/
[9] https://www.theregister.com/2022/08/01/asia_tech_news_roundup/
[10] https://eresources.hcourt.gov.au/downloadPdf/2022/HCA/27
[11] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33Yvy8RwbTBDhx9Fn4djRxrAAAAIw&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[12] https://www.theregister.com/2021/09/08/australia_facebook_comments_liability_ruling/
[13] https://whitepapers.theregister.com/
Re: Testing boundaries
I believe historically your comments regarding the dwellers of this green and pleasant land would have been ignored, shrugged at or (more likely) entirely agreed with.
Defamatory or not, they're not going to cause a level of offence that (again, historically) might have, for instance, led to the invasion and subjugation of your homelands.
At the same time, if you were to impugn the reputation of an individual then yes, that may well provoke an appropriate response.
Google may also link to your derisory view of that individual, but in so doing would be merely pointing out 'over there is something said about someone', which I believe is different to Google saying it about them.
Of course, this being the Internet Australian and UK law are mere nodes within the virtual landscape. That's where life does however get complicated, and is why the US has the 2010 SPEECH Act to protect Americans against the laws of other countries.
I'm not sure any of this forgives the horrific insult you threw at our poor hosts. I refer you to Wesley's polite rejection of Montoya's initial proffering of his word.
Re: Testing boundaries
> Google may also link to your derisory view of that individual, but in so doing would be merely pointing out 'over there is something said about someone', which I believe is different to Google saying it about them.
I believe the issue isn't that Google is linking to a defamatory article, but that Google chooses (by way of how they design their algorithms) which links to deliver for a search term, and so is choosing to associate the defamatory link with this person.
It is well within Google's power - and I would argue in their interest as a search engine - to remove eg. untrue, out of date, or irrelevant links from their search index (or at least heavily penalise them in the rankings). That they choose not to - until forced by courts - is presumably because they have no meaningful competition as a search engine.
If the original judgement held, that would mean all libraries would have to go through their stock ripping pages out of newspapers, go through all their bibliographies ripping pages out, people would be banned from answering the question: do you remember that article last year where X....? 1984 IS NOT AN INSTRUCTION MANUAL!
Relevant quote, then...
from Dickens: "If the law says that...'
"The nation also retains powers to force tech players to identify users and produce their encrypted messages"
There encrypted message can be produced still encrypted? Or I assume they want them unencrypted, in which case how do you do that with E2E encryption on apps such as Whatsapp, signal etc?
Of course Australia is the country where their PM famously said 'The laws of mathematics are very commendable, but the only law that applies in Australia is the law of Australia' So i am sure they have a way around it, or else they will just arrest and lock up mathematics for breaking AU law.
Testing boundaries
Defamation is very tricky.
Now, if I now would suggest that all of the Aussies are idiots, would that be defamation? Australian law does have a lot in common with British law. By that standard, should calling the island dwellers (*) , west off of the continental European land, all a bunch of daft fuckers be considered defamatory? Or do I need to specify each single person and give each a label of "suck it" before it becomes defamatory?
Imagine a search engine finding this comment...or even the internet archive... Tricky business indeed.
(*) El Reg excluded, of course, being Spanish by name and containing French contributions.