Australians wanting to defend themselves against defamatory content online will face more hurdles after a High Court ruling about Google’s search engine.
In a huge win for the internet giant, the court on Wednesday found Google was not legally responsible for defamatory news articles as it is just a search engine and not the publisher of such content.
Some defamation lawyers were shocked by the decision, as it could have major ramifications for people wanting to defend themselves against reputational damage.
“The majority decision may seem intuitive to some, but it came as a shock to myself and my colleagues who practice as defamation lawyers,” UWA law professor Michael Douglas told AAP.
“The only beneficiaries are massive tech companies, who pay little tax, and the losers are ordinary Australians who want to defend themselves against horrible things said online.”
He said the decision meant Google could “wash its hands” of defamation action brought by Australians over search results linking to material that could harm their reputation.
“Google links to content on purpose, to support a business model that earns it billions of dollars,” Professor Douglas said.
“Through this decision, it has avoided a key externality of its business: the for-profit infliction of reputational harm on Australians.”
The ruling comes days after the public release of proposed reforms to national defamation law supported by the Council of Attorneys-General.
The reforms focus on the extent to which search engines and social media websites are liable for reputation-damaging material published by third party users online.
Prof Douglas said the High Court’s decision has made that reform process redundant.
“I think that the defamation law reform process needs to start again, it was premised by an understanding of the law, which is no longer correct,” he said.
University of Sydney professor David Rolph, a member of the expert panel advising NSW’s attorney-general about the reform proposal, said the ruling would help to make defamation law a lot clearer.
“This area of defamation law has been particularly complicated because you also have to pay attention to what the alleged publisher has done or hasn’t done,” he told AAP.
“The significance here is that you can finely point to what is not considered to be publication for the purposes of defamation law.”
In a decision by five out of seven justices, the High Court found Google was not the publisher of a 2004 defamatory article by The Age about Victorian lawyer George Defteros.
Google argued that providing a hyperlink to a story did not amount to publication and therefore was not defamation.
The court agreed with Google and found it did not help The Age communicate the story to third party users and the search engine’s results “merely facilitated access” to the article.
“In reality, a hyperlink is merely a tool which enables a person to navigate to another webpage,” a joint statement by Chief Justice Susan Kiefel and Justice Jacqueline Gleeson said.
AAP has approached Google for a response.
