Google LLC v Defteros

Google LLC v Defteros - [2022] HCA 27 - HCA 2022 case summary — Zoe

[10]

KIEFEL CJ AND GLEESON J. The respondent, George Defteros, is a solicitor who has practised criminal law for many years. In the course of that practice he has acted for persons who became well-known during Melbourne's "gangland wars", including Dominic ("Mick") Gatto and Mario Condello. In 2004, the respondent and Mr Condello were charged with conspiracy to murder and incitement to murder Carl Williams and others and were committed to stand trial. In 2005, the Director of Public Prosecutions withdrew the charges against the respondent. In the intervening period the prosecution of the respondent and Mr Condello was widely reported, including in The Age newspaper, and articles were placed on that newspaper's website.
The appellant, Google LLC, makes available to those seeking to navigate information on the World Wide Web its search engine. In early 2016, the respondent became aware that an internet search of his name using the Google search engine produced search results which included a snippet of an article published by The Age in 2004, on the day after the respondent was charged. This was termed the "Search Result" in the proceedings below. The title of the article, displayed in the Search Result, contained a hyperlink to the full article on The Age's website. The article was entitled "Underworld loses valued friend at court". In the proceedings below it was referred to as the "Underworld article". Together, the Search Result and the Underworld article were said to comprise the "Web Matter" which the respondent claimed defamed him.
In proceedings brought in the Supreme Court of Victoria, the respondent claimed damages for defamation from the appellant as publisher of the Web Matter. The appellant denied publication. It relevantly pleaded, in the alternative, both the common law and statutory defences of innocent dissemination and qualified privilege[1].
The trial judge, Richards J, found that the appellant had published the Web Matter, based on her Honour's view of the significance of the insertion of a hyperlink to The Age website in the Search Result[2]. Her Honour found that the Web Matter conveyed the defamatory imputation that the respondent had crossed the line from being a professional lawyer for, to become a confidant and friend of, criminal elements[3]. Only the defence of statutory qualified privilege was made out and only with respect to a substantial proportion, but not all, of the persons to whom her Honour found the Web Matter had been published[4]. Her Honour awarded the respondent general damages of $40,000 and later made further orders for interest and costs, the latter reflecting the "mixed success" of the parties in the proceedings[5].
The action concerning the Web Matter was heard by the trial judge together with an action brought by the respondent with respect to other material which it was alleged was later published by the appellant and which was also said to be defamatory of him. That second action was dismissed.
Relevantly to this appeal, the appellant sought leave from the Court of Appeal to appeal the judgment in respect of the Web Matter; and the respondent sought leave to cross-appeal in relation to the costs order for the same[6]. The parties also filed applications and cross-applications for leave to appeal in respect of the second action[7]. The Court of Appeal (Beach, Kaye and Niall JJA) granted both applications for leave to appeal but dismissed the appeals. It also dismissed both cross-applications for leave to appeal in relation to costs[8].

[36]

The trial judge concluded[13] that the appellant "publishes a webpage that is reached by clicking on a hyperlink within a search result, because its provision of a hyperlinked search result is instrumental to the communication of the content of the webpage to the user. The Google search engine lends assistance to the publication of the content of a webpage on the user's device, by enabling the user to enter a search query and, a few clicks later, to view content that is relevant to the user's search." That is what the appellant's search engine is designed to do, her Honour said. This conclusion was said to follow from an application of the principles in Webb v Bloch[14]. It followed that the appellant published the Web Matter by providing a hyperlink in the Search Result to the Underworld article[15].
Her Honour further held[16] that, as a secondary publisher, the appellant was not liable for publication of the defamatory matter complained of until a reasonable time after it had been notified that the Search Result included that matter.
It would appear that in argument before her Honour, an analogy was sought to be drawn between search results and a catalogue to a library collection. Her Honour's findings referred to the World Wide Web as a "vast digital library". Her Honour considered that whilst the analogy was useful, it did not quite capture what occurred. In her Honour's view, a hyperlink is more than simply a reference to where information can be found on the Web. A closer analogy is a librarian who fetches a book and delivers it to the user bookmarked at the relevant page. All that is left for the user to do is to open the book and read it. Her Honour said[17]: "[i]n my view, the provision of a hyperlink within a search result facilitates the communication of the contents of the linked webpage to such a substantial degree that it amounts to publication of the webpage".
The Court of Appeal held[18] there to be no error in the trial judge's conclusion that the appellant became a publisher of the Underworld article seven days after it received notification of the defamatory matters contained therein. Their Honours considered[19] that the Search Result was an "enticement" to the reader to click on the hyperlink to obtain more information about the respondent. In doing so, their Honours expressly approved the approach of Hinton J in Google Inc v Duffy[20]. Their Honours also agreed with the approach of Kourakis CJ in Google Inc v Duffy and considered that the Search Result, containing the hyperlink to the Underworld article, "incorporated" the content of the Underworld article even though it did not repeat any of the text in the article said to be defamatory of the respondent[21]. Both the concepts of "enticement" and "incorporation" were said to reflect the test in Webb v Bloch because they fasten on steps that lend assistance to the publication[22]. The combination of the search terms, the text of the Search Result and the insertion of the hyperlink both directed and encouraged the reader to click on the link for further information[23].

[39]

It must be accepted that the principles regarding publication of defamatory material have been regarded as having a broad reach. In Voller[36], reference was made to what had been said by Abella J in Crookes v Newton[37] in this regard, namely that "the breadth of activity captured by the traditional publication rule is vast". But that is not to say that there are no limits to what actions are captured by the rule or that any connection between a person's act and the publication, however remote, will render them liable as a tortfeasor.
The correctness of the statement in Crookes v Newton may be seen most clearly from the cases which marked the early development of the defence of innocent dissemination, which was the common law's response to the strictness with which the rule of publication had been applied. But for the defence, persons who sold newspapers or periodicals would be liable as publishers[38], as would those who lent or sold copies of a book containing defamatory matter[39] and persons who delivered parcels which contained libellous documents[40]. What they may be seen to have in common is that the acts in question directly conveyed the defamatory material.
The acts in question in Webb v Bloch and Voller are different from the examples given above. They did not involve the actual distribution of the defamatory material. The defendants were involved in and participated in the publication of defamatory material by conduct which preceded its dissemination. In Webb v Bloch, the defendants approved the creation of the defamatory material for the purpose of its distribution and, in Voller, the defendants encouraged the creation of the alleged defamatory matter. In Voller the defendants additionally facilitated its publication by providing a platform for its communication.
In Webb v Bloch, the plaintiff and the defendants were members of committees which represented wheat growers and purchasers of wheat scrip in different States. The committees had as their common object to seek compensation from the Government of South Australia for the benefit of the growers. To that end, the committees each instituted and controlled various legal proceedings. A difference of view arose between the South Australian committee, which the plaintiff chaired, and the Victorian committee, of which most of the defendants were members, as to whether litigation controlled by the South Australian committee should be settled. A solicitor acted for both committees.
One of the defendants, Mr Bloch, instructed the solicitor to compose a circular to be published to the growers in South Australia with a view to soliciting funds for further litigation, an action which was approved by the other defendants. The circular contained information which was untrue and defamatory of the plaintiff, Mr Webb. Mr Bloch knew certain of the contents of the circular to be untrue, one defendant was not aware of the circular's contents but was aware that certain statements in it were untrue and the other defendants were unaware of either the contents of the circular or whether statements in it were true or false. The majority, Knox CJ and Isaacs J, held all defendants to be liable for the publication of the defamatory matter in the circular. The solicitor's malice was also attributed to them.
Isaacs J explained[41] that "publication" in the law of libel did not just mean to physically distribute it. He said that "[t]o publish a libel is to convey by some means to the mind of another the defamatory sense embodied in [the document conveying the defamation]". On that basis the solicitor had "published" the defamation even though he had not himself disseminated it.
Isaacs J then went on to discuss the meaning of "publication" as relevant to the defendants[42]. His Honour gave examples, by reference to a text and cases, of persons who were not the authors or disseminators of defamatory matter but were treated as publishers, as where a person suggested that the matter be written; caused it to be published; approved, concurred or showed their assent or gave their approbation to the libel; or assisted or encouraged the damage to another's reputation. Many of the cases drew upon the analogy of a principal and agent to explain the person's liability as publisher.
Isaacs J concluded[43] that whilst it may be said that the solicitor was the "real author" or the "master mind", and the defendants were the "intermediate agents" to disseminate the libel, "[t]hey cannot employ the master mind for the very purpose, accept its suggestions, approve and disseminate its production, and then disclaim its malice".
The defendants in Voller were media companies which each maintained a public Facebook page on which they posted hyperlinks to news stories, with an associated headline, comment and image. Clicking on the hyperlink took the reader to the news story on the defendant's website. But it was not these acts which were said to involve the defendants in publication of the alleged defamatory material; rather it was what the defendants did in seeking commentary upon the articles which brought them within the principles stated in Webb v Bloch. The defendants were found to have invited and encouraged comment about the articles from Facebook users. It was the response by some third-party users to that encouragement which contained the alleged defamatory material. It was the defendants' acts in facilitating, encouraging and assisting the posting of comments by the third-party users which rendered them liable as publishers of those comments[44].
In each of Webb v Bloch and Voller the defendants' acts of approval and encouragement were clearly connected to the creation of the matter in question for the purpose of it being communicated to others. Voller had the additional feature that the media companies provided the place for publication. The present case has none of these features. The provision of the Search Result, including the hyperlink, has no connection to the creation of the Underworld article; its creation was in no way approved or encouraged by the appellant; and the appellant did not participate in it being placed on The Age's website.

[40]

The circumstances of the present case are closer in kind to those considered in a line of decisions from the courts of the United States and Canada.
Klein v Biben[45] concerned an article in a periodical which the plaintiff alleged was libellous. A later issue of the same periodical was alleged to have repeated the publication by the statement "For more details about [the plaintiff], see the Washington News Letter in The American Hebrew, May 12, 1944"[46]. That is to say, it drew attention to the earlier article. The question whether there was republication by reason of the specific reference in the later issue of the periodical was answered in the negative by the Court of Appeals of New York.
In MacFadden v Anthony[47] a magazine available for purchase contained an article which the plaintiff claimed was libellous. A radio commentator called attention to the article in the course of a broadcast. It was not claimed that the commentator repeated the words of the publication, verbatim or in substance, or that any of the words spoken by him were themselves defamatory. On a motion to dismiss the complaint for legal insufficiency, the New York Supreme Court applied Klein and held that the commentator's statement was not a publication or republication of the libel.
Closer in time and fact is Carter v BC Federation of Foster Parents Association[48], where mention was made in a printed newsletter of the internet address of an internet forum which contained defamatory comments. The Court of Appeal of British Columbia, adopting Klein and MacFadden, held[49] that a reference to an article which does not repeat the defamatory comment itself is not a republication of it.
These cases were referred to with approval by Abella J in Crookes v Newton[50], a decision of the Supreme Court of Canada. Mr Newton operated a website which contained commentary on issues such as free speech. One of the articles he posted on the website contained hyperlinks to other websites which contained information about Mr Crookes that were said to include matters defamatory of him. In his action brought against Mr Newton, Mr Crookes alleged that by providing the hyperlinks Mr Newton was publishing the defamatory matter.
The starting point for the analysis undertaken by Abella J (with whom Binnie, LeBel, Charron, Rothstein and Cromwell JJ concurred and McLachlin CJ and Fish J substantially agreed) was the statement of the rule that a defendant who, by any act, conveys defamatory meaning is a publisher[51] and an acknowledgment of the breadth of actions which fall within this traditional publication rule[52]. This accords with Australian case law, as does the observation by Deschamps J[53] that publication has a bilateral nature.
It needs to be said at the outset that there are aspects of the reasons of Abella J which, in our view, either cannot or should not be followed by this Court. In the former category are factors such as the public interest in protecting freedom of expression[54] and other values drawn from the Canadian Charter of Rights and Freedoms[55]. In the latter are policy considerations such as the benefits to be gained from the dissemination of information over the Internet[56]. It is preferable to apply settled principles regarding publication to a situation presented by new technology. The result is that internet search engine results that are not themselves defamatory do not come within the purview of publication and it is not necessary to consider whether those principles should be adapted. In any event, it is clear that Abella J made reference to these other factors and considerations as confirming the correctness of her Honour's essential reasoning. That reasoning is compelling.
In her Honour's view, hyperlinks "are, in essence, references"[57]. A hyperlink provides a reference to another source and does not itself constitute publication of it[58]. Although the link may facilitate the transfer of information, which her Honour accepted was a hallmark of publication, it is equally clear that when a person follows a link, they are leaving one source and moving to another. "The ease with which the referenced content can be accessed does not change the fact that, by hyperlinking, an individual is referring the reader to other content."[59]
Hyperlinks thus have the same relationship to the content to which they link as do references, her Honour observed. Both communicate that something exists but do not by themselves communicate its content. Both require an act on the part of a third party before access is gained to the content. The fact that accessing the content is made far easier with hyperlinks does not alter the fact that a hyperlink, by itself (and as distinct from a search result in which the link is embedded), is "content‑neutral"[60].
McLachlin CJ and Fish J agreed in large part with the reasons of Abella J[61], but held[62] that a hyperlink will constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content to which it links. A mere reference without endorsement or adoption remains content‑neutral; but where the specific content is endorsed or adopted the reference can be understood to actually incorporate the defamatory content[63].
It will be recalled that the Court of Appeal in this case adopted the possibility of defamatory matter being published by way of incorporation by reference into a search result. In our view, this suffers from two difficulties. The first is that whereas incorporation by reference clearly has a place in contract law[64] and other areas of law, such as patent law and the law relating to wills, it can have no place in the law of defamation, which requires that the defamatory meaning be conveyed for publication to be complete. The second is that in any event it is unnecessary. Cases such as Webb v Bloch show that the rules of publication apply where a person endorses, adopts or otherwise approves of defamatory matter which is to be published.
Deschamps J favoured a more nuanced approach[65], which requires consideration of factors such as whether the hyperlinks are "deep" or "shallow"[66] and how they operate. This approach was not pursued by the respondent in this case and such factors were not the subject of findings by the trial judge.

[41]

It is not suggested that the appellant itself communicated the defamatory matter in the Underworld article, which appeared on The Age's website. Unlike the defendants in the innocent dissemination cases, the appellant did not do so by selling, distributing or otherwise disseminating the matter complained of. More relevant to this appeal, and by way of contrast with the circumstances of the defendants in those cases, is the hypothetical example of a person from whom directions are sought as to where a periodical might be obtained from a retail outlet. If that person gives directions or even escorts the enquirer to the place of sale, it could hardly be suggested that the person has communicated defamatory matter contained in the periodical. Nor could those actions be said to involve participation in the communication of such defamatory matter.
The publication of the defamatory matter here is best understood as occurring by the communication of the article on The Age's webpage to persons accessing the webpage. The questions raised by Webb v Bloch, Trkulja and Voller are whether the appellant could be said to have participated in the communication of the matter contained in the Underworld article or to have been instrumental in, or have contributed to any extent to, the publication of that matter. The phrases in question imply some connection on the part of a defendant's conduct with the acts which constitute publication of the defamatory matter. They do not suggest something which occurs that is physically remote from the acts constituting publication of the defamatory matter, and thus distinct from it. The observation of Abella J in Crookes v Newton[67], that by using a hyperlink a person moves from one webpage to another, serves to highlight that remoteness here.
It cannot be said that the appellant was involved in the communication of the defamatory material by reference to the circumstances in Webb v Bloch and Voller. It did not approve the writing of defamatory matter for the purpose of publication. It did not contribute to any extent to the publication of the Underworld article on The Age's webpage. It did not provide a forum or place where it could be communicated, nor did it encourage the writing of comment in response to the article which was likely to contain defamatory matter. Contrary to the finding of the trial judge, the appellant was not instrumental in communicating the Underworld article. It assisted persons searching the Web to find certain information and to access it.
As the trial judge found, navigating the Web can be a challenge. Search engines assist in that process. But the analogy drawn by her Honour between a search result and a librarian handing over to a library user a book marked at a particular page is problematic, not the least because a search result is only one of a number of responses to an enquiry, as was the case here. Properly understood, a search result conveys to the person searching that they may be interested in one or more of the results. The person is not directed to a particular result, as the Court of Appeal implied. According to the trial judge's findings, results are ranked by the use of an algorithm having regard to relevance using "signals" or clues as to what the person searching is looking for according to the words used in their enquiry. The search result merely refers, in the sense of drawing attention, to a webpage. As Abella J pointed out in Crookes v Newton[68], there is a difference between drawing a person's attention to the existence of an article and communicating its content. And whilst it may be said that the use of a hyperlink may mean The Age gains a reader, that does not make the appellant something other than a reference provider.
The respondent submitted that the Search Result had the added feature, to which the Court of Appeal referred, that by its terms it "enticed" the person searching to open the webpage. It is difficult to see how this level of excitement could be said to be generated by the words of the Search Result. Moreover, it needs to be borne in mind that the person has already activated a search for particular information before the result is received. As is the case with any search result, a person will employ the hyperlink if they think the webpage to which they are directed may provide the information they seek. It is notable that the respondent also submitted that the decisions of the New York courts should also be seen as involving "enticement". In doing so the respondent appears to equate "entice" with "call attention to".
As mentioned above, in Crookes v Newton Abella J pointed out that when a person chooses to click on the hyperlink, they leave the search result and go to a different webpage[69]. In the course of argument on this appeal, another example was given of how a person might be referred or directed to another webpage that may contain defamatory material. A person might give to another the text and symbols that constitute the URL address for a webpage. It could hardly be suggested that, without more, the provision of a URL address is participation in the communication of defamatory matter which happens to be at that address. Yet the provision of a hyperlink involves little more. In reality, a hyperlink is merely a tool which enables a person to navigate to another webpage.
The question of whether the appellant could be said to participate comes down to the assistance provided by the hyperlink to move to another webpage. This is not a strong basis for liability and it finds no support in existing authority in Australia or recent cases elsewhere. As observed in Crookes v Newton, a hyperlink is content‑neutral. A search result is fundamentally a reference to something, somewhere else. Facilitating a person's access to the contents of another's webpage is not participating in the bilateral process of communicating its contents to that person. To hold that the provision of a hyperlink made the appellant a participant in the communication of the Underworld article would expand the principles relating to publication.
The aim or purpose of the appellant in making information universally accessible[70] should not be confused with whether it is motivated to and does produce income by providing hyperlinks, conducting a business in that sense. Neither factor is relevant to whether there is a publication. That question focuses upon what the appellant in fact does.
For completeness, it should be noted that the respondent submitted that when notice was given to the appellant, as the internet search engine operator, that The Age's webpage contained defamatory material, the appellant's failure to remove the reference was relevant to the question of publication. The submission assumes that the appellant was a publisher, which, for the reasons given above, is not the case. It is also incorrect in principle to employ notification in connection with publication. Notice of the existence of defamatory matter may be relevant to knowledge in the defence of innocent dissemination, but it is not relevant to the question whether defamatory material is published. The submission bespeaks some notion of duty on the part of the appellant to the respondent which is breached.

[46]

GAGELER J. Whether someone is a publisher of defamatory matter communicated by means of the Internet is determined in the application of the standard common law principles expounded by the majority in Fairfax Media Publications Pty Ltd v Voller[71] by reference to Webb v Bloch[72] (as reconfirmed in Trkulja v Google LLC[73]) and Dow Jones & Co Inc v Gutnick[74].
Those standard common law principles posit that publication is a process which includes making matter available for comprehension by a third party (relevantly by including the matter on a webpage) and which is completed upon the third party having that matter available for comprehension (relevantly by viewing the webpage)[75]. Those principles further posit that a publisher is anyone who is an active and voluntary participant in any part of that process of publication[76].
Applying those principles, I agree with the conclusion reached by Kiefel CJ and Gleeson J that Google LLC was not a publisher of the defamatory matter contained in the article on a webpage on The Age website in the publication that occurred each time a third party who had entered "George Defteros" into the Google search engine clicked on the hyperlink in one of the search results so as to be connected to The Age website, where the article could be viewed. I also agree with the reasons given by Kiefel CJ and Gleeson J for reaching that conclusion.
Mindful that other members of this Court reach the opposite conclusion adhering to the same common law principles, I add the following observations.
The majority in Voller[77] drew attention to the consistency of the common law principles there expounded with the common law principles expounded by the Supreme Court of Canada in Crookes v Newton[78]. Despite calling attention to the fact that "the breadth of activity captured by the traditional publication rule is vast"[79], Abella J (with whom five other Justices concurred) in Crookes applied those common law principles to conclude that a "mere" hyperlink constitutes no more than a "reference" to the existence and location of a webpage where matter can be viewed as distinct from a publication of the matter contained on that webpage[80]. Abella J reasoned to that conclusion taking the view that a hyperlink by itself communicates that something exists, but does not communicate its content and, in that way, is "content-neutral"[81].
That reasoning of Abella J in Crookes involved application to a hyperlink of the general understanding that to provide to a third party a reference to the location at which matter on a designated topic is available to be found does not at common law, without more, amount to publication of that matter to that third party. That understanding is not contradicted by anything in the reasoning of the majority in Voller and, as noted by Kiefel CJ and Gleeson J, is directly supported by the earlier New York[82] case law analysed in Crookes. I cannot read the New York cases as having turned on the application of the "single publication rule" considered and rejected in Gutnick[83]. Publication was emphasised in Voller to be a technical concept and was implicitly accepted in Voller to be used in no different sense in the common law of Australia from the sense in which it is used in the common law of New York[84]. In that light, I read the New York cases analysed in Crookes as illustrations of a category of conduct - neutral referencing - that has been recognised not to amount to participation in a process of publication.
The conclusion in Crookes, that a mere hyperlink is to be characterised as neutral referencing, and therefore does not amount to participation in the process of publication of the matter to a third party who clicks on the hyperlink, is by no means incontestable[85]. Of its nature, a hyperlink goes beyond merely indicating the existence and location of a webpage in that it also facilitates immediate access to that webpage. More than just indicating the location on the Internet where referenced matter is to be found, the hyperlink provides a shortcut to that location.
That being so, the circumstance that the conclusion in Crookes has been reached in the outworking of materially identical common law principles and has stood for more than a decade in Canada counts in favour of that conclusion being accepted and assimilated into the outworking of the applicable common law principles in Australia. To repeat a point made in Voller[86], with reference to Crookes, "given that a strength of common law reasoning lies in its ability to assimilate and build upon collective experience, when grappling with the application of common law principles of tortious liability inherited from a common source to meet common challenges presented by emerging global phenomena, 'convergence … is preferable to divergence even if harmonisation is beyond reach'".
The ubiquity of the Internet and the centrality of hyperlinks to its operation make consistency in the characterisation of a hyperlink across common law jurisdictions especially desirable. As described by Matthew Collins[87], in language partially quoted by Abella J in Crookes[88]:

[48]

To accept that the provision of a hyperlink is not enough to amount to participation in the process of publication which is completed when a third party clicks on the hyperlink so as to view the webpage, however, is not to deny that the provision of a hyperlink might combine with other factors to amount to participation in that process of publication of matter on that other webpage. The late 19th century decision of the English Court of Appeal in Hird v Wood[89] - treating as a publisher a man who sat on a stool smoking a pipe and continuously pointing to a placard so as to attract the attention of passers-by to the writing on the placard - illustrates that the taking of action which draws the attention of a third party to the availability of matter in a manner which has the effect of enticing or encouraging the third party to take some step which results in that matter becoming available for his or her comprehension can be sufficient to amount to participation in publication of that matter. The question whether particular action amounts to enticement or encouragement of that nature is appropriately described as one of "fact and degree"[90].
Thus, in Google Inc v Duffy[91] with reference to Hird v Wood, the content of the snippet component of several Google search results was said to have been such as to "entice" a third party to click on the hyperlink in those search results to obtain more information. That was because the snippet component "naturally invite[d] the reader to click on the hyperlink for explanation and elaboration" of the matter[92], such as to be aptly described as "the electronic analogue of the person who places a post-it note on a book which reads 'go to page 56 to read interesting gossip about X'"[93].
Although aspects of the reasoning in Duffy are capable of being interpreted more broadly, the outcome in Duffy is best understood as having turned on the particular content of the snippet component of the search result in that case. The outcome in Duffy cannot be generalised to the extent of indicating that the combination of elements of a search result will always, or even generally, operate to direct, entice or encourage a third party conducting a Google search to click on the hyperlink component for further information.
The search result in the present case was not of a kind described in Google Inc v Australian Competition and Consumer Commission[94] as a "sponsored link", which is "a form of advertisement created by, or at the direction of, advertisers willing to pay Google for advertising text which directs users to a web site of the advertiser's choosing"[95]. The plurality in that case observed in respect of a sponsored link that "Google is not relevantly different from other intermediaries, such as newspaper publishers (whether in print or online) or broadcasters (whether radio, television or online), who publish ... the advertisements of others"[96].
Like the search result in Duffy[97], the search result in the present case was rather of a kind described in Google Inc v Australian Competition and Consumer Commission[98] as an "organic search result". That terminology was not used by the primary judge in the present case but can be taken as a shorthand description of the results that are generated from the operation of the ranking algorithm of the Google search engine, which her Honour described as using "various 'signals' or clues to identify what results the user is most likely looking for"[99].
Unlike the position in Duffy, no feature of the content of the particular organic search result in the present case has been found to have operated as an enticement or encouragement to click on the hyperlink.
The conclusion of the primary judge that Google was a publisher, which was upheld by the Court of Appeal, was instead based on the broad proposition - necessarily applicable to the results of all Google searches - that the inclusion of a hyperlink in a search result is enough for the provision of the search result to amount to active and voluntary participation by Google in the process by which the matter referenced in the hyperlink is published to a user of the Google search engine. Her Honour said that "provision of a hyperlinked search result is instrumental to the communication of the content of the webpage to the user", that "[t]he Google search engine lends assistance to the publication of the content of a webpage on the user's device, by enabling the user to enter a search query and, a few clicks later, to view content that is relevant to the user's search", and that "[t]he inclusion of a hyperlink within a search result naturally invites the user to click on the link in order to reach the webpage referenced by the search result"[100]. I cannot accept a proposition of that breadth.
That Google's mission is "to organise the world's information and make it universally accessible and useful" by "connecting users to information on the internet that is relevant to their query and is of high quality"[101], that it "has a commercial interest in providing a quality service with responsive search results"[102], that the web crawler and indexing programs of its search engine are continuously in operation[103], and that the ranking algorithm of its search engine operates to identify and display those results ranked by relevance to identify what the searcher "is most likely looking for"[104], do not alone or in combination affect what I consider to be the critical feature of an organic search result. The critical feature is that the search result is no more than a designedly helpful answer to a user-initiated inquiry as to the existence and location of information on the Internet.
By entering a search term into the Google search engine, the searcher looks for matter on a topic of interest to the searcher. By providing a search result, Google indicates where on the Internet that matter may be found. The hyperlink in the search result identifies the webpage on which matter on that topic is located. The hyperlink in the search result - no differently from any other hyperlink - also provides a shortcut which facilitates immediate access to the webpage should the searcher choose to take the further step of clicking on it. Having obtained the search result, including the hyperlink and the snippet, it is then up to the searcher to decide whether or not to take that further step of clicking on the hyperlink so as to access the webpage. Google does not, merely by providing the search result in a form which includes the hyperlink, direct, entice or encourage the searcher to click on the hyperlink.
I agree with the orders proposed by Kiefel CJ and Gleeson J.
KEANE J. I agree with Gordon J that Google's appeal should fail. In particular, I agree with her Honour that Google published the material defamatory of Mr Defteros ("the Underworld article"), as the courts below found. I also agree that the common law and statutory defences of innocent dissemination and qualified privilege are not available to Google in this case for the reasons given by the courts below. I write separately to explain my conclusion that Google published the Underworld article. Because mine is a dissenting judgment, I will be brief.
Google provided search results in response to users' search queries. Those search results directed its users to The Age's webpage containing the Underworld article. Through the hyperlinks provided by Google, users were thereby enabled to have direct and nearly instantaneous access to the Underworld article. All this occurred as Google intended by the operation of its search engine in accordance with its design and in the ordinary conduct of Google's business. Google thereby participated in the publication of the Underworld article to a user of its search engine for the purposes of the law of defamation in Australia. My conclusion in this regard is founded upon the primary judge's unchallenged findings of fact in relation to the design and operation of Google's search engine. To those findings I now turn.

[49]

Google's search engine is an automated information retrieval system which allows a user to navigate the vast amount of information available on the World Wide Web through user‑designed search queries or terms[105]. Google states that its mission, in providing this service, is "to organise the world's information and make it universally accessible and useful" by connecting users to information on the Internet that is relevant to their query and is of high quality[106].
Each webpage of the World Wide Web has a unique Uniform Resource Locator ("URL"), which acts as the address for that webpage. Webpages are created, most commonly, with a code called HyperText Markup Language ("HTML"). The HTML code of a webpage is read by a software program called a browser, which displays text and images to a user on the user's device. A webpage typically contains hyperlinks, which are HTML code that contains a URL for another webpage. Clicking on a hyperlink will take a user from one webpage to that other webpage. Unless a user knows the precise URL for a webpage, he or she must find and access the webpage by some other means, most commonly, a search engine[107].
Google's search engine uses computer algorithms to make predictions about what webpages are most likely to be of interest to a user, based on the terms of the user's search query. Its search engine responds to a query from a user by first identifying what information is available on the Web, using a fully automated Web crawler program. That program determines which webpages to crawl and how often, as well as what type of information is collected; if a webpage is ranked as more important, it will be "crawled" more often[108].
Next, the Google search engine uses an indexing program to organise the data obtained by the Web crawler program into a form that is more easily searched by computer algorithms. The program creates an index, listing every webpage that contains each word found during the crawling stage, as well as other information such as whether the page comprises text, images or video and whether it appears to be a news article[109].
When a user enters a search query, the words from the query are evaluated by a series of algorithms against the information in the index, as it is at that point in time. A webpage's relevance is evaluated by reference to "signals" or clues as to what the user may be looking for, such as the number of times one or more of the user's search terms appears on the webpage, how recently the content of that webpage was published or updated, the location of the user, and the user's previous search history[110].
A search result is then presented - almost instantaneously - to the user comprising a list of webpages, ranked according to relevance as determined by the ranking algorithm. Generally, for each webpage, a user is shown the title of the webpage with the search terms in bold, a "snippet" of the content of the webpage and a shortened form of its URL. The title operates as a hyperlink, which the user can click on to be taken to the webpage[111].
Google's search engine also allows users to search for images, which are displayed to the user in search results as a series of "thumbnails". Each thumbnail contains a hyperlink to an interstitial page which provides more information about the image. Clicking on the interstitial page takes the user to the webpage whence the image originated[112].
Google's search engine, and its component programs, are both designed by humans. They operate as they are intended to do in accordance with that design. That is so, even though the component processes of a Google search are fully automated and completed without human intervention. Further, while the Google search engine is not capable of evaluating the meanings conveyed by the words or images displayed on a webpage, including whether they are true, false or defamatory, human intervention can, and does, occur at the point of Google's "legal removal" process. This process may alter the results that are shown to a user. In accordance with its various policies, Google may choose to remove a webpage, identified by its URL, from the search results that are returned by the Google search engine. This process does not remove the webpage from the Web; a user may still access it, for example, by using another search engine, or directly via the URL[113].

[65]

In this Court, it was argued on Google's behalf that a person whose participation in the process of communicating defamatory matter to a third party consists of assistance to the reader, rather than to the primary publisher, is not relevantly a publisher. It was said that to characterise the activity of a person who aids a reader in having access to the defamatory writing as participation in publication of the writing would be an absurd extension of prima facie liability for defamation. In light of Dow Jones v Gutnick, it cannot sensibly be denied that a person who aids another to comprehend defamatory matter does participate in the publication of that matter to that person. There is nothing novel in this: a person who reads a defamatory writing to a blind or illiterate person publishes that writing[128], just as a person who reads a newspaper article aloud over the radio publishes the article[129].
It has never been suggested in the authorities that a defendant in such a situation has not published a statement to a third party because that statement was originally published by another potential defendant[130]. Nor has it been suggested in the authorities that the circumstance that a defendant has published a defamatory statement to a third party at the third party's request precludes a finding of publication by the defendant. Whether the publication of a statement defamatory of a third party has been made in response to a request for information may be relevant to whether the publication has occurred on an occasion of qualified privilege[131], but that this is so only confirms that, being a circumstance relevant to a matter of defence, it is not such as to negative the element of publication essential to the existence of prima facie liability for defamation.
To characterise Google's role in the publication of the Underworld article to a user of its search engine as assistance to the user which was, therefore, not assistance to The Age as the primary publisher involves several errors. The first is the fallacy of the excluded middle, the logical error that assistance to the user cannot be of assistance to The Age as well. The Age's interest as a news media publication is, after all, to reach a wide readership, and, like Google, it is indifferent as to the identity of those readers.
The second error in this aspect of Google's argument lies in its downplaying, or indeed denial, of the significance of the circumstances in which Google brings its users and The Age together. The publication of defamatory material, which occurred when a user of Google's search engine gained access to the Underworld article, occurred by reason of the assistance intentionally provided by Google in the course of its business. That publication would not have occurred but for Google's facilitation (save for the rare case where a person may directly access a webpage by its URL). No doubt, to say this is not sufficient reason to provide an affirmative answer to the question whether Google intentionally facilitated the publication. But to say that Google was simply "assisting the publishee", as counsel for Google submitted, is to fail to appreciate the nature and extent of Google's participation in that exercise. The design of Google's search engine includes the presentation of search results by way of hyperlinks which are apt to, and which are meant to, afford near‑instantaneous access to the one or more webpages which Google indicates answer a user's query. The ease and immediacy of that access are integral to Google's business. That differentiates Google, both from the owner of a telephone network which passively conveys statements being made by others via its cable lines, and from a publisher on the Internet who inserts hyperlinks into his or her own content as references to another text.
This case is not like Crookes v Newton, where the defendant's hyperlinks were in the nature of footnotes to his article[132] which, so far as his work was concerned, readers might or might not click on, that being a matter of indifference to him. It is not a matter of indifference to Google that the user chooses to click on a hyperlink. That the user should make that choice is the essence of Google's business, which, as it says itself[133], is "to organise the world's information and make it universally accessible and useful" by connecting users to information on the Internet that is relevant to their query.
Google's search engine cannot be accurately described as a passive instrument by means of which primary publishers convey information. Google's business consists of the automated provision of relevant responses to requests for information and the enabling, by the use of hyperlinks, of near‑instant access to that information at the choice of the user. Google actively ranks those responses by relevance - that is, as was said in argument on Google's behalf, in an algorithmically attempted understanding of the searcher's interest. It may be acknowledged that Google does not contribute to the content of the works which its search engine disseminates, just as it may be acknowledged that Google's search engine facilitates access to those works by opening the way to the primary publisher's webpage; but neither of these facts is inconsistent with the conclusion that Google has intentionally brought the work of the primary publisher to the attention of the user.
Thirdly, while Google and The Age have not come together to agree to expand the publication of The Age's work, Google and The Age each acted with the intention of bringing the Underworld article to a readership of third parties. The symbiotic relationship between Google and The Age has not been reduced to an agreement, but each party pursues its intention as an unremarkable part of its ordinary business. The intention of putting The Age's articles before an audience is manifested by Google's search engine responding to requests from its users for access to information supplied by primary publishers such as The Age. In this regard, it operates as it is intended by its designers and owner to do. That Google's users make use of its search engine to gain access to information supplied by others is in no way inconsistent with the intention that is common to both Google and The Age; indeed, it is the consummation of that intention. And that is so no less because the webpage containing the defamatory matter is The Age's webpage rather than Google's, or because access to that webpage depends on the choice of Google's user.

[74]

Mr Defteros sued the appellant, Google LLC, for defamation. Mr Defteros did not allege that the search result itself defamed him, but that the Underworld Article did. He said that, by its publication of the search result containing the hyperlink, Google published the Underworld Article. Google denied that it was the publisher of the Underworld Article and, relevantly, pleaded defences of common law and statutory innocent dissemination, and common law and statutory qualified privilege. There was no dispute in this Court that the Underworld Article was defamatory.
The Google search engine system is in fact a number of systems - including the web crawler program, the indexing program and the ranking algorithm[139]. And although the Google search engine system operates in a "fully automated" manner[140], the systems of which it is comprised are designed by humans and operate as they are intended to operate[141]. In general terms, the web crawler and indexing programs operate without being triggered by a search query[142]. The web crawler and indexing programs are designed to determine, among other things, the relevant "importance" of certain webpages that they crawl and index. The web crawler program ranks the webpages it crawls, determining which webpages are "important" so as to crawl those more often[143]. The indexing program notes the characteristics of the webpages crawled by the crawler program, including whether a webpage "appears to be a news article"[144]. The ranking algorithm uses various signals or clues to determine the order in which to display results to users[145]. Those clues include another important rank called PageRank, which evaluates how often other webpages link to that webpage, and the "importance" of those linking webpages[146]. Creation and continuous operation of that system is the antithesis of passivity.
Google published the Underworld Article. To conclude otherwise is contrary to the strict publication rule, recently restated by this Court in Fairfax Media Publications Pty Ltd v Voller[147]. Google intended to publish the Underworld Article in the sense that its conduct was active and voluntary[148]. Google intentionally participated in, lent its assistance to, was instrumental in and contributed to the communication of the Underworld Article by identifying, indexing, ranking and hyperlinking it within the search result[149]. It matters not that Google was unaware of the alleged defamatory content of the Underworld Article[150]. The Underworld Article was accessed in a comprehensible form by third parties who clicked on the hyperlink that the Google search engine system provided in the search result[151]. The fact that the third parties had to click on the hyperlink does not alter the conclusion that Google published the Underworld Article. For a third party to access defamatory material in a comprehensible form often, if not always, involves an act by that third party - the turning of the head; the selection, buying and then opening of a newspaper and turning the pages of the newspaper; or, here, entering search terms and clicking on a hyperlink[152].
Google, as the creator and operator of the Google search engine system, and The Age Online, as the initial publisher of the Underworld Article, also have an objective common intention. Although an objective common intention is not necessary to amount to publication, it will be sufficient[153]. An objective common intention is found in this case - to facilitate access to news articles - by The Age Online publishing the Underworld Article at www.theage.com.au and by Google's tailoring of its search engine system - in particular the web crawler and indexing programs - to specifically identify, locate and index news articles published on the web, to rank the results returned in response to a particular user's search query and then to tailor the display of those results for that user.
And that Google tailors its search engine system in that way is unsurprising. It is Google's business model - it "has a commercial interest in providing a quality service with responsive search results"[154]. That is why it pays particular attention to webpages that appear to be news articles. It is why the Google search engine system crawls for and separately indexes news articles. News articles are of particular importance to Google. Google and online news providers such as The Age Online (which generate the news articles) have an objective common intention - to facilitate access to news articles. It is why Google participates in the publication of news articles to which its search engine system provides a hyperlink.
When it was said in argument that Google was "agnostic" as to what hyperlinks a user will click on, that expression not only obscured the objectives, elements and operation of the Google search engine system, but was inconsistent with them. To adopt and adapt the language in Voller[155], Google's attempt to portray itself as passive has an air of unreality. Having taken action to obtain a commercial benefit by creating and operating a search engine that facilitates access to news articles, it cannot deny that it is involved in the publication of those news articles.
Innocent dissemination is a defence to a cause of action in defamation[156]. It is not a denial of the element of publication. The defence, however, cannot be made out if the disseminator knew of the defamatory character of the publication, or that the matter was likely to be defamatory[157]. Here, Google was fixed with knowledge that Mr Defteros claimed the material was defamatory when a solicitor employed by a firm of which Mr Defteros is the principal lodged a removal request on Google's website for the Underworld Article to be removed from Google's search results. Google was provided with the Uniform Resource Locator ("URL"). The removal request form was provided and generated by Google. Although some of the information provided in Mr Defteros' removal request was inaccurate, that is not determinative. Reasons of principle, practicality and fairness dictate that a plaintiff is not required to give a defendant notice of any particular imputations which they claim are conveyed or the basis upon which any defences would fail. Google was therefore aware of the defamatory character of the Underworld Article a reasonable time after having been given notice and the defence of innocent dissemination cannot be established.
At common law, an occasion of qualified privilege arises where there is a reciprocity or community of duty or interest between the recipient and the publisher[158]. Mere curiosity or a matter's mere quality as news is not sufficient[159]. And an interest is generally not found if the publication is to the world at large[160]. There was no such interest here; not only was there no evidence of such interest but there were uncontested findings of fact that a subset of the third parties clicked the hyperlink out of idle curiosity[161].
There was no dispute that the statutory defence of qualified privilege is wider than the common law defence[162]. But the essential element remains - that the recipient has a relevant interest. Where, as here, a small number of persons had clicked on the link out of mere curiosity, the statutory test could not and cannot be met in respect of those persons[163].
To explain those conclusions, it will be convenient to proceed by examining: first, the Google search engine system and Google's business model; second, the strict publication rule; and third, the objective common intention of Google and The Age Online. Against those considerations, it will then be necessary to look in some detail at particular cases and examples given significance in argument, including the "graffitied wall" cases[164] and the decision of the Supreme Court of Canada in Crookes v Newton[165]. Finally, it will be necessary to say something more about the defences relied upon by Google.

[75]

How the Google search engine system operates lies at the heart of this appeal. The relevant factual findings of the trial judge[166] were not disputed in the Court of Appeal[167] or in this Court. Those findings were consistent with earlier decisions that have considered the Google search engine system. It is to those findings I now turn.
The Google search engine system and its component programs are designed by humans who work for Google[168]. When a user enters a search query into the Google search engine system, algorithms which employees of Google have developed, but which are fully automated[169], make predictions about which webpages are of interest to that user and display search results as a list of hyperlinked text[170]. But the results - the end product - are only part of the story. It is necessary to understand how the underlying programs that comprise essential aspects of the Google search engine system were intended to and do operate.
First, there is the "web crawler" program, which is "fully automated" and "uses a large number of computers to constantly visit and process webpages on the [w]eb"[171]. That program determines which webpages to crawl, how often, and what information is to be collected from each webpage. The web crawler program has its own ranking system, and deems certain webpages to be "important", which "are crawled for new data more frequently than less important pages", and the data of re‑crawled pages is updated[172]. The web crawler program brings this data about the webpages back to Google's servers.
Second, an "indexing program" then "organise[s] the data obtained by the [w]eb crawler into a form that is more easily searched by computer algorithms"[173]. It "builds a list", which is constantly refreshed by the results of the web crawler program, of every webpage that contains "each word" found during the crawling stage, and notes other aspects, including each webpage's publication date, whether the webpage comprises text, images or video "and whether the webpage appears to be a news article"[174]. The index contains "each word and a list of the unique IDs that relate to the webpages that contain that word"[175].
Third, there is a "series of algorithms". "[W]hen a user enters a search query", the algorithms evaluate the words from that query "against the information in the index, as it is at that precise point in time"[176]. A "ranking algorithm" uses various "'signals' or clues" to identify what result the user "is most likely looking for" and displays those results to the user as a list of webpages, "ranked according to relevance, as estimated by the ranking algorithm". Those signals or clues include[177]:

[81]

The results displayed to a user are typically listed as the titles of webpages, which are hyperlinked; "snippets" of the content of the webpage; and a shortened form of the webpage's URL[178]. The user's search terms are shown in bold. There may be many pages of search results, and the first page contains those results which the ranking algorithm has determined are most relevant to the search query[179].
As has been mentioned and as is readily apparent, the web crawler and indexing programs are not reliant for their operation on, or triggered by, a particular user's search terms. It is the algorithms, especially the ranking algorithm, which are triggered by the user's search query. It is the stored and constantly updated data crawled and indexed by the web crawler and indexing programs against which the algorithms then evaluate the search terms. That is, the web crawler is always crawling and the indexing program is always indexing, and when a search occurs, the words of that search are then evaluated "against the information in the index, as it is at that precise point in time"[180]. Contrary to Google's submission, its vast repository of information obtained and organised by the web crawler and indexing programs is not "an undifferentiated mass until a search is requested". And in crawling and indexing, news articles are a particular, if not primary, focus. A webpage which appears to be a news article, importantly, is separately crawled - identified - and indexed as such a page[181]. "Important" webpages are crawled more often[182]. The web crawler program and the ranking algorithm's focus on "important" webpages, the crawling of such pages for updated data more frequently, and the PageRank and freshness clues used by the ranking algorithm then combine to produce search results in response to a search query[183].
The design of the Google search engine system as a whole is intended to, and does, affect the results that are produced when a user enters a particular search query. And it is for that reason that, in seeking protection for its search results under the First Amendment to the Constitution of the United States, Google has itself successfully argued that the design of its search engine system involves the exercise of evaluative judgment[184].
Although the operation of the Google search engine system is automated, Google can manually affect search results. By human intervention, Google can alter search results by removing a webpage from its search results, but such removal does not remove the page from the web[185]. Removal of a webpage from search results is done in limited circumstances including "legal removal"[186]. This is a process that can be triggered by a user lodging with Google a removal request, a form on Google's website which asks a user to explain why they believe that the content complained about is unlawful[187]. This was the process used in this case. It will be necessary to return to consider it later in these reasons.

[84]

Google "has a commercial interest in providing a quality service with responsive search results"[192]: more users and a more tailored search and listing of third-party content means more valuable advertising opportunities[193]. That is why Google pays particular attention to webpages that appear to be news articles[194]. Through its interactions with news outlets, Google benefits because its service is more "responsive" and of better "quality"[195]. News outlets also benefit from what is, in effect, a referral service provided by the Google search engine system[196].
That the relationship between Google and news media outlets is a two-way relationship was given statutory recognition by the enactment in 2021 of the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Act 2021 (Cth), enacted after the Australian Competition and Consumer Commission's 2019 inquiry into digital platforms[197]. One aspect of the legislative amendments was the introduction into the Competition and Consumer Act 2010 (Cth) of a "News media and digital platforms mandatory bargaining code"[198]. Under that scheme, the responsible Minister may make a declaration that a service is a "designated digital platform service"[199]. "If the designated digital platform service makes available covered news content of [a] registered news business" (emphasis added), the responsible digital platform corporation must, among other things, provide certain information to the news business[200] and, if the digital platform corporation is notified by the news business that the news business "wishes to bargain over one or more specified issues relating to the registered news business' covered news content made available by the designated digital platform service"[201], "[e]ach bargaining party must negotiate in good faith"[202]. For the purposes of the relevant Part of the Competition and Consumer Act, "a service makes content available if ... a link to the content is provided on the service"[203] (emphasis added), and in such a case "a user of a service interacts with content made available by the service if ... the user interacts with the link"[204] (emphasis added). Although the Minister has to date not designated any digital service platforms, after the amendments to the Competition and Consumer Act, and "[c]onsistent with the policy objectives of the Code", Google "reached agreements with a range of ... news businesses"[205].
The relevance of this is two-fold. First, the commercial benefit that Google obtains by creating and operating its search engine, particularly in relation to news outlets, is inconsistent with its assertion of passivity and confirms the conclusion that its acts of participation amount to publication for the purpose of the strict publication rule[206]. Second, it underlines the objective common intention of Google and news outlets, which is sufficient but not necessary to establish that Google is a publisher.

[85]

The strict publication rule was recently restated by this Court in Voller[207]. Accordingly, after Voller, the rule can be summarised as follows: first, any person who, by an intentional[208] - in the sense of active and voluntary[209] - act, participates[210], assists[211] or is instrumental in[212], or contributes to any extent to[213] the process directed to making defamatory matter available for comprehension by a third party[214] is a publisher. All degrees of such participation amount to publication[215]. Such participation may involve acts which precede the comprehension by third parties of the defamatory material[216] and, in all cases, a person is a publisher regardless of whether they knew that the matter contained defamatory content[217]. Finally, publication is a bilateral act which occurs when the matter is available to be comprehended[218], and is accessed in a comprehensible form[219], by a third party.
For an act to be "intentional" it is sufficient that it is "active and voluntary"[220]. It is not necessary for a publisher to have knowledge of the defamatory content[221]. And not every active and voluntary act which ultimately results in a third party accessing defamatory content is a publication. There must be an active and voluntary participation in the process that is in fact directed to making matter available for comprehension by a third party[222]. If a person writes a defamatory statement which is placed in a locked drawer only for a thief to break in and publish it, the writer is not a publisher of the statement[223]. The writer has not engaged in a process directed to making matter available for comprehension by a third party.
An important feature of the strict publication rule is that acts which precede the comprehension by third parties of defamatory material can amount to publication[224], and that such acts may include providing a platform for the communication of defamatory matter[225]. The principle that acts which precede the comprehension by third parties of the defamatory material can amount to publication acknowledges that publication is a process directed to making matter available for comprehension by a third party[226]. For example, the clapping down of a printing press[227] was held to amount to publication, and, in the case of Voller, so was the contracting with Facebook for the provision of a Facebook page, and posting content on that page which gave Facebook users the ability to comment on that content[228]. Put in different terms, the breadth of activity captured by the strict publication rule is vast[229].
And importantly, liability as a publisher for any degree of participation in the process of publication, including acts which precede the comprehension by third parties of the defamatory material, is dependent upon the bilateral acts of a defendant making matter available for comprehension, coupled with its actual comprehension[230]. In the context of the internet, the act of making matter available was described in Dow Jones & Co Inc v Gutnick[231] as "uploading", whereby a person places the material on a webpage, managed by a web server, from which a person wishing to have access to that material may access it in a comprehensible form by issuing a request to the relevant server in the form of nominating the webpage's URL. That is, the fact that publication requires the act of a third party does not mean that the person making that matter available is not a publisher.
Participation in a process of making matter available to be comprehended by a third party may take many forms. In addition to composing the defamatory material itself, it will include, for example, directing someone to compose material for the purpose of publication even if there was no direction that the material be defamatory[232], physically pointing to defamatory material so as to draw attention to it[233], and providing a platform for the dissemination of defamatory material, either by providing a website which hosts a discussion forum[234], or by posting an article on Facebook upon which persons can comment[235]. Common to all of these examples is that a defendant has provided some part of the means by which a third party may, by their own acts, comprehend the defamatory material. That is, the publisher's acts form part of the process directed to making matter available for comprehension[236].
Acts forming part of such a process might afford a publisher a defence of innocent dissemination, but, as Voller makes clear, those acts will still amount to publication under the strict publication rule[237]. Consistently with that principle, the statutory defence expressly assumes that a person may be a publisher even if the person[238]:

[95]

The United States authorities referred to by Abella J, which concerned the single publication rule, also appear to have been a particular influence on Abella J's reasoning[266]. The Australian law of defamation differs markedly from the path that has been taken in North America. That difference was identified and emphasised in Dow Jones[267]. The core difference is that Australia treats every publication as a separate cause of action[268], whereas the prevailing rule in the United States, originating in the courts of New York[269], has been a single publication rule[270]. Under that rule, a plaintiff can only bring one action for all publications made of defamatory material[271], unless it can be established that a subsequent publication falls within the "republication" exception to that rule[272], discussed below. Decided within a jurisdiction where the single publication rule was firmly rooted and in the context of the republication exception, the approach taken in the New York cases of Klein v Biben[273] and MacFadden v Anthony[274], endorsed by Abella J[275], was that a bare reference to an earlier publication does not give rise to a new or separate cause of action. The single publication rule was squarely considered and rejected by this Court in Dow Jones[276].
Moreover, the United States cases, and a Canadian case referred to by Abella J which applied them, were not concerned with hyperlinks. Klein[277] was concerned with whether a statement in a newspaper article that further details could be found in an earlier article constituted republication of the earlier article. MacFadden[278] was concerned with whether a radio broadcast "calling attention to" a magazine article constituted republication of the article. Carter v BC Federation of Foster Parents Assn[279], which applied Klein and MacFadden, was concerned with, among other things, whether a reference in a newsletter to an online forum constituted publication of comments on the forum. In each case, the answer given was "no". Those decisions are inconsistent with the strict publication rule as restated in Voller[280] and, in particular, the application of that rule to publication by reference, which is considered below[281].
The "simple hyperlink" with which Abella J was concerned is, in any event, not a sufficient description of the Google search engine system and the search results generated by it[282]. Abella J considered that "[a] reference to other content is fundamentally different from other acts involved in publication"[283]. Abella J went on to state that[284]:

[102]

In 2014, the Court of Appeal of England and Wales in Makudi v Baron Triesman of Tottenham[299] held that a "reference to an earlier parliamentary statement" is capable of being "taken as a fresh publication of it" and there is "no significance to the distinction ... between repetition and reference". Similarly, in the Canadian decision of Spike v Golding[300], a newspaper had published an article which made reference to an earlier defamatory article it had published after proceedings had been instituted by the plaintiff in respect of the first article. The second article referred to those proceedings and stated that the publisher "was prepared to prove all the paper had stated and a good deal more"[301]. The Nova Scotia Supreme Court held that "publication was sufficiently shown"[302]. And a reference may be made not only by the original publisher, but by another party, and yet constitute publication[303].
Second, Abella J said that hyperlinks and references both require some act on the part of a third party before they gain access to the content[304]. An act of a third party - comprehension by a third party - is a necessary element of publication, as publication is bilateral[305]. The fact that that element is addressed separately is not new[306]. A third party will often, if not always, have to act to access defamatory information - to turn their head to see a defamatory placard, to turn the pages after reading a headline on the front page of a newspaper or a chapter heading in the table of contents of a book, to scroll through their Facebook feed, or, as here, to click on a hyperlink[307].
But the two matters relied upon by Abella J - that a hyperlink is a mere reference and that to access the content requires an act of a third party - also demonstrate that observing that a hyperlink by itself is "content-neutral"[308] is itself a neutral consideration; it is not determinative[309]. Knowledge of defamatory content has never been a necessary element for publication[310]. Knowledge is addressed in the available defences.

[105]

The principles are not in dispute. Innocent dissemination is a defence to liability as a publisher, not a denial of the element of publication[319], developed by courts to mitigate the harshness of the strict publication rule[320]. To succeed in a defence of innocent dissemination at common law or under the Defamation Act 2005 (Vic), the onus, relevantly, is on a subordinate distributor who claims the benefit of the defence[321] to prove that they did not know that the publication contained a libel; that they did not know, and had no ground for supposing, that the publication was likely to contain a libel; and that their ignorance was not due to any negligence on their part[322].
The present appeal concerns the second element, which Gaudron J in Thompson v Australian Capital Television Pty Ltd[323] said "can conveniently be expressed as whether the distributor knew or ought to have known that [the publication] contained a libel". As expressed in the Defamation Act, the question is whether the subordinate distributor "neither knew, nor ought reasonably to have known, that the matter was defamatory"[324], and that that lack of knowledge "was not due to any negligence on the part of" the subordinate distributor[325].
The issue that divided the parties was precisely what knowledge was required for the common law defence and s 32(1)(b) of the Defamation Act. Google submitted that something other than a "mere notification" of a claim should be required, and that, "[a]t the very least", there should be a notice setting out "the imputations of concern and ... an explanation as to why [those imputations] cannot be justified or excused". In support of that contention, Google referred to the decision of Lord Denning MR in Goldsmith v Sperrings Ltd[326], in which his Lordship (in dissent) held that the defence should apply unless the subordinate distributor "knew or ought to have known that the [publication] contained a libel on the plaintiff ... which could not be justified or excused". Google sought to have this Court focus on the quality of the notice said to be necessary to defeat its lack of knowledge for the purposes of its defence. For reasons of principle, practicality and fairness, Google's submission should be rejected.
At a level of principle, the defence of innocent dissemination is one of "confession" and "avoidance"[327]. That is, once publication has been established, as it has been here, the onus is on the defendant to satisfy a court of its lack of knowledge or constructive knowledge of the defamatory nature of the material[328]. Acceptance of Google's submission would require that the plaintiff prove that the notice given to the subordinate distributor was sufficient to negate its presumed lack of knowledge. That is contrary to principle because it inverts the onus of proof.
Further, the requirement that the subordinate distributor lack knowledge of the defamatory nature of the material is not concerned with whether the material is actually defamatory, in the sense that it is actionable. The bar has been and remains lower. In Emmens v Pottle[329], Lord Esher MR and Bowen LJ each said that the defence will not be available if the subordinate distributor knew or ought to have known that the material was "likely" to contain a libel. Similarly, Romer LJ in Vizetelly v Mudie's Select Library Ltd[330] said that there must not have been anything in the work "which ought to have led him to suppose that it contained a libel" (emphasis added). Or, as Gaudron J said in Thompson[331], all that is required is that the subordinate distributor "neither knew nor ought to have known of the defamatory character" of that material. Such statements must be understood so as only to require, for the defence to fail, that the subordinate distributor knew or reasonably ought to have known, for any reason, that the material was "likely to lead an ordinary reasonable person to think less of the person concerned"[332]. What will be sufficient will vary from case to case and from libel to libel.
That conclusion is reinforced by matters of practicality and fairness. Google's submission, put differently, is that a potential plaintiff should only be able to defeat the defence of innocent dissemination if the plaintiff details the imputations sought to be conveyed by the allegedly defamatory content and explains why there are no available defences. To simply state that proposition is to see how impractical and unfair such a position would be to the vast majority of potential plaintiffs. The trial judge and the Court of Appeal correctly rejected Google's submission in this case[333]. The notice given to Google fixed it with knowledge that Mr Defteros claimed that the Underworld Article was defamatory. As has been explained, a solicitor completed a removal request form provided on the Google website and included the URL to the Underworld Article, which Google's employee could have clicked. The fact that inaccurate statements were made to Google in that removal request and subsequent correspondence about the Underworld Article does not and cannot alter the position that, a reasonable period after the completion of the removal request form, Google was aware of the claimed "defamatory character" of the article and could read the article[334]. In those circumstances, after a reasonable time, which on the evidence was one week after the removal request, Google could not establish its defence of innocent dissemination.

[108]

The concept of "interest" is used "in the broadest popular sense, as when we say that a [person] is 'interested' in knowing a fact - not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news"[338]. A corollary of that proposition is that an interest is generally not found if the publication is to the world at large[339] because "a person has no legitimate interest or duty" in making such a publication merely because "the subject matter of the publication is one in which the public is interested"[340]. And the emphasis is on "duties and interests rather than the state of mind of the defendant"[341]. In asking the ultimate question whether an occasion is privileged because there is such reciprocity of duty or interest between the maker and the recipient of the matter, it is to be asked, "[w]hat legal, social, or moral duties or interests were engaged between the [defendant] as publisher and those [persons] to whom it published"[342]?
In determining whether the occasion was privileged, the court examines all the circumstances of the case including "the nature of the defamatory communication, the status or position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of, and reason for, the publication"[343]. It is after considering these matters that the court "makes a judgment as to whether the publisher had a duty or interest that justified making the publication and whether the recipients, or some of them, had a duty to receive or interest in receiving"[344] the material. This usually involves questions of public policy[345].
Google submitted that the "common convenience and welfare of society as a whole" would be served by finding that Google has "an interest or duty to publish search results" hyperlinking to matter that is responsive to a user's search terms. In so submitting, it relied on the fact that the trial judge had held, under the statutory defence, that a significant number of the people to whom Google published the Underworld Article had a "legitimate interest[]" in reading it, including because they were "looking for a lawyer" or were "considering employment with [Mr Defteros'] firm"[346]. Google contended that requiring it to remove its results where it cannot prove that all users have a sufficient interest would subvert "the greater interest ... to the lesser interest", which "does not serve the common convenience and welfare of society as a whole".
Google bore the onus of establishing the defence[347]. The concurrent findings in the courts below were that Google had failed to establish that it provided its service to its users as a matter of legal, social or moral duty and failed to establish that it had a community or reciprocity of interest with those users.
That is unsurprising. Here, Google published the defamatory material to users of its search engine system, including a small number of persons who accessed it out of "idle interest or curiosity"[348]. The extent of the publication is relevant in determining whether the occasion is privileged. Publication to users without a legitimate interest is not privileged. As Higgins J made plain in Howe v Lees[349], it is not sufficient that the interest in the published material arises out of curiosity or because of the material's "mere quality as news". It is publication to a particular person that is protected[350].
Moreover, because the focus is on the community of duty or interest of the publisher and the recipient, contrary to Google's submissions, the phrase "common convenience and welfare of society as a whole" records a result and explains why the communication and the relevant duty or interest gave rise to an occasion of qualified privilege[351]. The phrase "common convenience and welfare of society" comes from the judgment of Parke B in Toogood v Spyring[352], which was endorsed by this Court in Lange v Australian Broadcasting Corporation[353] and Bashford[354]. Although in dissent in the result, McHugh J in Bashford[355] explained, in terms which are not inconsistent with those of the plurality in that case[356] and which were approved in Papaconstuntinos v Holmes à Court[357], that such concepts do not determine whether the occasion is privileged. "They must be distinguished from the question whether society would recognise a duty or interest in the publisher making, and the recipient receiving, the communication in question"[358] (emphasis added) and evidence must be adduced to show that "both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter" (emphasis in original)[359]. In this case, the trial judge had no such evidence, and her Honour and the Court of Appeal were therefore correct to hold that no duty or interest of the requisite kind existed.

[110]

At trial and before the Court of Appeal, Google was successful in establishing its defence of statutory qualified privilege in relation to a "substantial proportion"[360] of the 150 persons to whom the trial judge found it had published the Underworld Article. Its appeal to this Court in relation to the statutory defence is therefore confined to that "small number" of persons who the trial judge found had clicked on the hyperlink to the Underworld Article "out of idle interest or curiosity"[361], which her Honour assessed for the purpose of damages as 50 persons.
Google submitted that the Court of Appeal, and the Full Court in Duffy[362], erred in proceeding on the basis that, for the purposes of s 30 of the Defamation Act, Google had to establish that its users had a "legitimate" interest in matter published to them by Google. Google submitted that the statutory defence is wider than the common law defence and extends to "any matter of genuine interest or 'apparent' interest". It submitted that, on the facts of this case, it was sufficient that: users had sought information about "george defteros" and had clicked on the hyperlink to the Underworld Article; the topic of the Underworld Article was of "considerable public interest"; the Underworld Article was "published by a reputable news source"; and a Google employee decided not to remove the Underworld Article from the search results in accordance with Google's "Reputable Source Defamation Push Back Policy", which policy the trial judge found was reasonable. That submission is rejected. It ignores the express words of s 30(1)(a) of the Defamation Act - namely, that "the recipient has an interest or apparent interest" (emphasis added). That interest must be a "legitimate interest", in the sense that it is "a matter of substance apart from its mere quality as news"[363]. And the trial judge's finding that Google's "Reputable Source Defamation Push Back Policy" and its employee's reliance on it were reasonable does not alter the fact that Google's belief as to such an "apparent interest" could not be reasonable[364] in respect of persons who did not hold that requisite interest.
In support of its contention that the statutory defence extends to "any matter of genuine interest", Google referred to a number of decisions of the New South Wales Court of Appeal[365] and the decision of the Privy Council in Austin v Mirror Newspapers Ltd[366]. The most appropriate summary of those cases can be found in the judgment of Hodgson JA (with whom Mason P and McColl JA agreed) in Echo Publications Pty Ltd v Tucker [No 3][367]. Adopting that summary, Hodgson JA later explained that the high-water mark of the cases is that the sense of "interest" in the (former) New South Wales statutory defence of qualified privilege[368] is "substantially wider" than that required under the common law[369].
Even if that be accepted, as his Honour's survey of the authorities demonstrates, matters of "curiosity" or matters of interest for their "mere quality as news" are still not captured by the statutory defence[370]. Accordingly, as no challenge was, or is, made to the trial judge's finding that a small number (assessed for the purpose of damages as 50 persons) clicked the link out of such curiosity, the defence cannot be made out in relation to those persons.

[112]

The primary judge found that the Underworld article conveyed a defamatory imputation, namely that the respondent had crossed the line from being a professional solicitor to being a confidant and friend of criminal elements. That finding was not challenged. It is nonetheless noteworthy that, whilst the respondent was successful below, a consequence of the proceeding has been the reproduction of the Underworld article in the reasons of the primary judge. Anyone now using the Google search engine to find those reasons will naturally also find that article, albeit in a different place.
The learned primary judge set out in detail the operation of the internet and of the Google search engine. Her Honour observed that each webpage has a Uniform Resource Locator ("URL") and that the code commonly used for creating webpages is called HyperText Markup Language or HTML. If one knows the URL of a webpage, one can type that URL into the address bar of a web browser and be taken to that webpage. Absent such knowledge, internet search engines - such as Google - provide a critical means of navigating the internet. Entering keywords into a search engine produces relevant search results. At the very least, those search results will contain hyperlinks to the URLs of potentially relevant and useful webpages, the vast majority of which are published by third parties. Sometimes the search results might contain additional words or phrases taken from a given webpage: this additional information is called a snippet.
The Google search engine is highly successful and very popular with users of the internet. It is based upon web crawling and indexing to collate, rank, and organise the data from trillions of webpages. It then applies sophisticated algorithms to produce, within usually half a second, search results from those trillions of webpages. The algorithms yield results that are not displayed randomly but are ranked based upon an assessment of the relevance to the searched item. Every month, over 100 billion searches take place on Google. The Google search engine is fully automated; no human intervention is needed. However, humans designed the search engine and invented the algorithms it uses; thus, search engines generally operate "precisely as intended by those who own them"[371].
It is in the appellant's interest to have a popular search engine. That is because the appellant or its subsidiaries, or both, carry on an advertising business[372]. Whilst not the subject of specific findings below, using the Google search engine produces at least two different types of search results. The first set of results are advertisements that relate to the subject matter of the search; the second are the search results themselves. A different algorithm is used to produce the advertisements[373]. These proceedings were not concerned with this aspect of the appellant's global business and different considerations may apply to advertisements with respect to the issue of publication.
Googling the respondent's name in 2016 produced, amongst other things, the following result:

[118]

Each matter represented above was false. The respondent had never sued the publisher of the article; the article was never found by a court to be defamatory; the publisher never settled any proceeding with the respondent and never paid him any settlement sum; no term of any settlement existed that required the article to be removed from the internet; and no settlement of any proceeding with the publisher has ever existed.
An employee of the appellant (or of one of its subsidiaries) who worked in the Google legal removals team responded to the removal request by asking for a copy of the court order. The solicitor responded with more falsehoods. He said that the matter had been settled in a mediation before it proceeded to trial and that the terms of settlement were confidential, but that the publisher had conceded that the article was defamatory and had agreed to remove the article from its website and accordingly from the internet. Again, none of that was true.
In 2016, the appellant had a "Reputable Source Defamation Push Back Policy". That policy listed news sources that the appellant considered reputable, including The Age. In accordance with that policy, the appellant's employee sent the solicitor from Defteros Lawyers an email informing him that the appellant had decided not to remove the "content" from its search engine. The email stated that the appellant did not control the content of third‑party webpages and encouraged the solicitor to deal directly with The Age. The primary judge decided that it was reasonable for the appellant to rely on sources it knew to be reputable in order to determine what content should be removed. It was also reasonable for the appellant to refer the solicitor to The Age given that the solicitor had contended that a settlement had previously been entered into between the respondent and that newspaper. Finally, given the business environment in which the appellant operates, the primary judge also found that it was not unreasonable for it to take no further steps to determine the accuracy of the Underworld article. None of these findings was challenged on appeal.
Between 11 February 2016 and 24 December 2016, about 150 people clicked on the hyperlink to the Underworld article following a Google search of the respondent's name. The primary judge found that a substantial proportion of those who undertook the searches had a legitimate interest in receiving information about the respondent, for the purposes of the statutory defence of qualified privilege. For example, some people were looking for a lawyer, were existing clients looking for the firm's contact details, or were considering employment with Defteros Lawyers. However, a small number had no such legitimate interest and searched the respondent's name out of idle interest or curiosity.

[123]

The primary judge was also of the view that the appellant was only a secondary and not a primary publisher. The respondent did not dispute this. Given that the appellant's search engine must traverse trillions of webpages on billions of occasions each month, inferentially the appellant will have no actual knowledge of the content of those pages, save in exceptional circumstances. It will also, inferentially, and subject to exceptional circumstances, know nothing about: the authors of those webpages; why the webpages have been created; and whether the information they convey is accurate. Again, inferentially, and subject to exceptions, the appellant will know few specifics about the users of its search engine or their motivations for making particular searches.
Because of the foregoing, according to her Honour, the appellant will "almost always, if not always"[378] have a defence of innocent dissemination at common law before it is given notice that its search engine has produced a link to defamatory material. But the primary judge considered that once a proper notification has been given, the appellant would then have a reasonable period of time to remove the webpage from its search results before it may be liable. The evidence suggested that a reasonable period of time was one week.
Here, and despite its falsity, the primary judge was satisfied that the content of the removal request of 4 February 2016 sufficiently notified the appellant that its search results were producing a link to the Underworld article, which the respondent claimed was defamatory of him. It followed that, from 11 February 2016, the defence of innocent dissemination was not available to the appellant for what was said to be its publication of the Underworld article during 2016 to about 150 individuals who had googled the name of the respondent. However, a defence of statutory qualified privilege was made out in relation to a substantial proportion of these acts of publication. The primary judge awarded general damages, after mitigation, of $40,000.
The reasoning of the primary judge is consistent with the conclusion of Beach J in Trkulja v Google Inc LLC [No 5][379], where his Honour decided that it was open to a jury to conclude that the appellant was a publisher of third‑party webpages hyperlinked in results generated by using its search engine. The appellant's argument in that case - that it could not have been a publisher because of the passive nature of its involvement - was rejected. Beach J said[380]:

[130]

There are four ways in which a defendant might be found to be a publisher of a communication to a person that is defamatory of a different person. The first is where a defendant performs the actual act of communication. The other three are based on the attribution to a defendant of another's acts that form part of the process of communication: (ii) where a defendant authorises another to perform an act of communication and the communication is within the scope of that authority[391]; (iii) where a defendant assists, in the sense of procures, provokes or conduces, another in performing the act of communication[392]; and (iv) where a defendant ratifies or adopts the communication of another[393].
Putting to one side cases of negligent publication, the negligence for which, on one view, might better be treated as governed by principles developed in the law of negligence[394], a defendant will only be responsible as a publisher if the defendant intended to perform the act of communication (instance (i)) or had a common intention, in the sense of an intention to communicate that is shared with the person whose communication they were authorising, assisting, or ratifying (instances (ii), (iii) and (iv)). Again putting negligence aside, it has been established for more than a century that in every instance a person must have an intention to communicate before they can be a publisher[395].
The concept of intention in the tort of defamation is not a unique idea dreamed up by ingenious defamation lawyers. It has exactly the same meaning as the intention in other torts of strict liability such as trespass to land, trespass to goods, or false imprisonment. To "intend something is to intervene in the world to bring about a chosen consequence"[396]. In the law of defamation, the relevant intention is generally proved by showing acts that reveal an "objective or manifested intention" to communicate[397]. It is an intention that the act of communication be performed or an intention to authorise, assist, or ratify the act of communication being performed by another; it is not concerned with the consequences of the act or with issues of fault, such as the reasonableness of the act[398].
The simplest illustration of the meaning of intention for the tort of defamation is the example of Lord Esher MR[399], cited on many occasions[400], of a person who writes a defamatory letter and places it in a locked drawer which is opened by a thief who communicates the contents of the letter to the world. There has been unanimity for more than a century that the writer is not a publisher. But what is the difference between that circumstance of non-publication and the circumstance of publication where the person writes exactly the same letter but leaves it in a prominent place where it is read by a third party? Both people have performed a voluntary act. In both cases the voluntary act was central to the communication of the defamatory material. But the difference is that the acts of the person who left the letter in a prominent place are sufficient for an inference that the person had "an intent to publish"; they had performed "an act for the purpose of communicating [the matter] to a third person"[401].
The method of constituting a person as a publisher based on a common intention (sometimes described as a common design) is not confined to defamation but is applicable to all joint tortfeasors[402]. In that respect, the decision of this Court in Lee v Wilson[403] does not support any stricter and exceptional rule for the tort of defamation. In that case, Dixon J said that liability depended upon "mere communication of the defamatory matter to a third person"[404]. But when his Honour in the following sentence went on to say that "communication may be quite unintentional", he was not excluding a requirement of an intention to publish. Read in context, this was a reference to a communication regardless of knowledge as to whether what had been conveyed was defamatory. Absent the need for such knowledge, the transmission of information is but a "mere communication".
The decision of this Court in Fairfax Media Publications Pty Ltd v Voller[405] concerned the posting of potentially defamatory statements by third parties as comments on news stories posted on the Facebook pages of certain media outlets. The issue for determination was whether the media outlets were also the subsidiary publishers of those third‑party comments. This Court divided on the relevance of, and answer to the question of, whether the appellants intended the communication of all comments made by users on the appellants' Facebook pages.
Kiefel CJ, Keane and Gleeson JJ said that the "intention of the author of the defamatory matter is not relevant because the actionable wrong is the publication"[406]. However, their Honours later considered the circumstance of a person who "intentionally lent [their] assistance" to the existence of defamatory matter for the purpose of publication and described that circumstance as "apposite" to the finding by Isaacs J in Webb of the liability of the solicitor enlisted by the defendants who had composed the defamatory circular "for the purpose of publication" and subsequently "consciously distributed it"[407]. Their Honours added that the finding "points to the fact that it is the defendant's act of participation in publication which must be intentional, in the sense of being voluntary"[408].
Also in the majority, Gageler and Gordon JJ held that "all degrees of intentional participation in the process of publication constitute publication for the purposes of the law of defamation"[409]. Their Honours concluded that the appellants had posted material on their Facebook pages "with the intention that third parties [would] comment on the material posted"[410].
We dissented in Voller on the application of the concept of intention to the facts. In our view, by having on their Facebook pages the functionality for third-party "comment" upon stories posted by the appellants, the appellants could not possibly have intended to communicate, or to assist in the communication of, any and every remark by third parties upon their Facebook pages. All that they intended to communicate, or assist in the communication of, were those remarks that could genuinely be described as "comments" on the posted stories[411].

[146]

The first contention was that the appellant was the publisher of the Underworld article because of the systems it employs - its web crawler program, indexing program, and ranking algorithm - which were instrumental to the communication of the defamatory matter. This contention adopted the reasons of Beach J and McDonald J in the Trkulja cases, set out above, and was said by this Court in the Trkulja appeal to be "strongly arguable"[422]. It was also the view of the primary judge in this case. This approach rejected any suggestion that the appellant performed a merely passive role when its search engine was used to produce results that included the hyperlink to the Underworld article. The appellant was the great designer; it invented the search engine, it maintained the search engine, and, through its servers, it enabled the search engine to operate. All of these matters were vital to the appellant's business; the appellant needed its search engine to be used to maximise its users' exposure to the advertisements that appeared on its website.
It may be accepted that "but for" the appellant's search engine, the defamatory matters in the Underworld article would not have been conveyed to the 150 individuals who viewed it via the Google search results. When the hyperlink to the Underworld article appeared, the search engine was operating in precisely the way its designers intended. But the appellant's role in that conveyance rose no higher than that of mere assistance or facilitation. When the appellant provided a list of search results and snippets through the processes described above, it had no common intention shared with The Age for the publication of the Underworld article any more than it had a common intention shared with those responsible for webpages listed in the many other search results and snippets.
The critical step that results in publication is that of the person searching and clicking on the chosen hyperlink. The role of the appellant rose no higher than a mere facilitator because the appellant had no common intention shared with The Age that the searcher click on the hyperlink to the Underworld article. In that respect, a clear distinction must be maintained between the act of publishing the selection of search results and snippets, which the appellant does, and the act of conveying material on third‑party webpages.
At best, the appellant's business assumes that ordinarily one or more webpages listed in the search results may be visited, but that is a matter entirely reserved for the searcher. Once the results have been published, it is the searcher who decides whether to click on one or more of the hyperlinks. In that respect, it was accepted on the facts of this case that the appellant could not be a publisher of the Underworld article unless and until this took place. It follows that the appellant in no way participated in the vital step of publication without which there could be no communication of defamatory material - namely the searcher's decision to click on the hyperlink of a particular result[423].
This appeal therefore does not present the occasion to consider whether the conclusion would be different in respect of those hyperlinks that, by agreement with a third party, are promoted by the appellant following a search request. Nor was any issue raised on this appeal about any service provided in the aggregation of news results. It suffices to say that it is arguable that the appellant and a third party might share a common intention to publish the content of a third‑party webpage that, as a consequence of an agreement between the appellant and the third party, is promoted as a search result.
Of course, the mere fact that a person to whom the communication is made must do some act to receive the defamatory material - even when that act is beyond the control of a putative publisher - does not always preclude a conclusion that the putative publisher assisted the primary publisher with a common design or a common intention to publish. In Vizetelly v Mudie's Select Library Ltd[424], the owners of a "circulating library" circulated or lent out a book called "Emin Pasha: his Life and Work". Volume 1 of this work referred to Mr Vizetelly being "not yet sober". A third party needed to attend the library and select this book for the defamatory comment to be read. The owners of the library were sued by Mr Vizetelly. They said that when they circulated this work, they did not know that it contained defamatory material as their library was too big for them to have read everything in it. They did not employ readers to check the content of the books lent out "because it was cheaper for them to run the risk, i.e., of publishing libels and being sued for those libels"[425]. The owners were found to be publishers of the book. The owners shared a common intention with the primary publishers of the book to disseminate the book and thus communicate its defamatory contents.
The Google search engine is distinctly unlike the library in Vizetelly. The appellant does not acquire a finite number of webpages, or some part thereof, and then make them available to be searched. The appellant does not own or control the internet. Unlike the readers who might have been employed in Vizetelly to check for defamatory content, it was not suggested that the appellant has any sensible means of being able to vet the content of every website in the world. And unlike the person who borrowed the book about Emin Pasha, the user of the Google search engine is, from the perspective of the appellant, an entirely unknown, unpredictable, and uncontrollable person searching the internet, which contains trillions of unknowable, unpredictable, and uncontrollable webpages.
If any analogy might be drawn, and again putting to one side the appellant's promotion of various advertised links (which is not in issue in this case), the analogy would be to position the appellant as an extremely knowledgeable guide working for profit in an enormous library, who facilitates a reader's search by providing the reader with a number of very specific pieces of information about where to locate a selection of items in the library and some indication of what they might contain. Importantly, the analogy is entirely inapt unless the appellant is a guide who is not employed by the library, is not a contractor to the library, and shares no interest with the library. The appellant has no common intention with the library or the publishers of books contained in it.
Acceptance of the fact that the appellant carries on a business that encourages individuals to use its website to conduct internet searches does not compel any contrary conclusion. The nature of that business justifies a conclusion that there is an expectation or assumption that one or more hyperlinks in the search results will probably be engaged when a search takes place. But this expectation or assumption does not suffice for an inference that the appellant's act of communicating a link to a third‑party webpage was done with a common design or a common intention shared with the third party.
The appellant is thus not the publisher of those third‑party webpages even though the use of its search engine was important - in a causative sense - to their ultimate publication. The first basis for publication is rejected.

[147]

The second way in which it was said that the appellant was the publisher of the Underworld article was that a search result entices a searcher to click on the hyperlink contained within it. Here that conclusion depends upon the search results including, along with the hyperlink and the shortened URL of the Underworld article, the following phrases: "Underworld loses valued friend at court"; "SpecialsGanglandKillings"; and "Pub bouncer‑turned‑criminal lawyer George Defteros always prided himself on being able to avoid a king hit". This contention was accepted by the Court of Appeal.
It may be accepted that, if a search result, by its content, was likely to entice a searcher to choose a given third‑party webpage over others, then an inference might be drawn that the assistance in the search was given with a common intention shared with the third party in the sense of a concerted action to a common end. However, here, even that evidentiary foundation was absent.
Based on the foregoing finding, the words that accompanied the search result simply described a story about a criminal lawyer and his clients, and no more. They indicated what the Underworld article would contain. Of course, for the reasons already given, it may be accepted that the very purpose of the search engine is that it will produce search results that might be accessed by a given user. Depending on what a user is searching for, and why, words that indicate the contents of a given webpage listed in the search results may encourage that person to click on the hyperlink. But this is very far from a basis for a finding of enticement.
The findings in this case about the Google searches of the respondent's name bear this out. The primary judge made detailed findings about seven individuals. Three of these individuals worked at Defteros Lawyers (one of whom was the respondent's wife) and each of them had previously seen the article. The findings do not disclose why they were making these searches. Another individual was the respondent's son; he was prompted by his friends to find the article on the internet. A further individual was a friend of the respondent; he undertook a search to find the respondent's office telephone number. He clicked on the hyperlink to the Underworld article, which he had previously read. Another person had used the respondent in the past as his solicitor. In 2016, he and the respondent discussed "defamatory information on the internet" and the respondent then showed him the search result and the Underworld article. This person later undertook a Google search of the respondent's name, then found the hyperlink to the Underworld article and read it. Why he did this was not the subject of any finding. Finally, another acquaintance of the respondent, whilst searching for the respondent's office telephone number, found the hyperlink to the Underworld article (which he had previously read), clicked on this hyperlink and then read the article (again). Again, no finding was made about why he did this. There was little evidence about the motivations of the other people who clicked through to the Underworld article. The primary judge made a number of unchallenged inferences. Her Honour inferred that a significant number sought out the article in the context of the respondent's complaint to the appellant; some were looking for a lawyer; some were existing clients looking for the contact details of Defteros Lawyers; and a few were considering employment with the firm. Others made searches out of idle interest and curiosity.
Not only is there no basis for a conclusion that the snippet was likely to entice a user to click on the Underworld article, but even if the defamatory imputations in the Underworld article might be said to be enticing, the primary judge made the following finding of fact, which remained unchallenged on appeal[426]:

[152]

It is plain from the foregoing passage that the concept of incorporation that Kourakis CJ had in mind is not limited to the reproduction of defamatory material in a snippet. It would extend to any snippet - that is, words accompanying a hyperlink - that conveys "sufficient information about the contents so as to constitute a publication of the underlying webpage". It was on this basis that the Court of Appeal decided that the Underworld article was "incorporated" by the search result because of the words that accompanied the hyperlink[428]. These words were said to have a "close connection to the parts of the Underworld article dealing with"[429] the respondent and "both directed and encouraged"[430] the reader to click on the hyperlink for further information. By these means, the Google search engine lent "assistance to the publication"[431]. A distinction in that respect was, in effect, drawn between the bare expression of a URL in a hyperlink - said to be the circumstance in Crookes - and the position here.
With respect, this reasoning confuses three concepts. To the extent that it suggests that the appellant was a publisher by assisting The Age, this is insufficient to establish publication because, for the reasons given above, the appellant's assistance was not given pursuant to a common intention shared with The Age to publish the article. Moreover, for the reasons set out above concerning the issue of enticement, there is no justification for the proposition that the words accompanying the hyperlink either "directed" or "encouraged" the reader to click on the hyperlink.
To the extent that the reasoning suggests that the appellant was a publisher by incorporation of the content of the Underworld article, the conclusion has no factual basis. The appellant's search engine generates a selection of words or phrases or both from a given webpage, which give the searcher some idea of the content of the webpage. The publication of those words or phrases cannot sensibly be equated with publication of the entire contents - that is, every single word, picture or symbol - of the webpage from which those words or phrases have been taken.
To the extent that the reasoning suggests that the appellant was a publisher by ratification or adoption of the Underworld article, there is also no basis for this conclusion. The inclusion of words or phrases accompanying the hyperlink does not, with great respect, evidence or demonstrate an adoption of, or an assumption of responsibility for, the contents of a given webpage - unless some language of adoption or words that show the taking of responsibility are displayed in the search result. No such language or words may be found in the search result for the Underworld article.
Nor was the provision of notice in the form of the inaccurate removal request - which was relied upon by the respondent as an indicium of publication - sufficient to make the appellant a publisher. To so hold would be to introduce concepts of reasonableness and negligence that are foreign to the law of defamation. As senior counsel for the appellant observed on this appeal, although there was some conflation between publication and the defence of innocent dissemination in the courts below[432], the false notice given by the respondent ultimately was relevant only in relation to the defence of innocent dissemination. The third basis for publication is rejected.

At a glance

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Catchwords

Judgment (434 paragraphs)

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Legislation Cited (5)

Cases Cited (39)

Cited By (3)