Plaintiff v Defendant [2020] VSC 219 | Case summary

Supreme Court of Victoria|2020-04-30|Before: Richards J

DEFAMATION - Publication - Whether internet search engine provider published search results and webpage reached by clicking on hyperlink within search results - When defendant was on notice that search results included matters complained of - When and to whom matters published - Whether pleaded imputations conveyed by the matters published.

DEFAMATION - Defences - Common law qualified privilege - Whether community of interest between defendant and users of its search engine - No community of interest - Statutory qualified privilege - Whether users of search engine had 'interest or apparent interest' sufficient for statutory defence - Sufficient interest established for some but not all users - Whether defendant acted reasonably in publishing matters to users with sufficient interest - Whether statutory defences of fair report, innocent dissemination and triviality established - Whether defence of consent established - (Vic), , , , .

DEFAMATION - Damages - Hurt and distress of plaintiff - Seriousness of imputations - Limited publication - No evidence of grapevine effect - Whether aggravated damages warranted by conduct of defence - Whether damages mitigated - Defamation Act 2005 (Vic) ss 34, 38.

1 George Defteros is a Melbourne solicitor who specialises in the practice of criminal law. He has been a principal of various legal practices since 1984, most recently Defteros Lawyers. During the 1990s and early 2000s, he was a partner of the firm Pryles & Defteros. A number of men who became notorious during Melbourne's 'gangland wars' were clients of that firm, including Alphonse Gangitano, Dominic 'Mick' Gatto, and Mario Condello.

2 On 17 June 2004, Mr Defteros and Mr Condello were charged with conspiracy to murder and incitement to murder Carl Williams, his father George Williams, and Carl Williams' bodyguard. Mr Defteros was arrested at his office and interviewed by police for a number of hours, before appearing at the Magistrates' Court at Melbourne where he was granted bail. In early 2005, both Mr Defteros and Mr Condello were committed to stand trial. At all times, Mr Defteros strenuously denied the charges.

3 On 22 August 2005, the Director of Public Prosecutions withdrew the charges against Mr Defteros. Mr Condello was murdered in February 2006, the day before his trial was to commence.

4 Mr Defteros surrendered his practising certificate on 20 June 2004. The firm Pryles & Defteros came to an abrupt halt, and Mr Defteros did not practise law for more than three years. In September 2007 he applied for and was granted a practising certificate. Later that year, he regained his accreditation as an Accredited Criminal Law Specialist and began to rebuild his practice. By 2014 he had re-established a thriving legal practice - opening a new office in Prahran, employing seven professional staff, and turning over about $2.5 million in fees.

5 The Melbourne gangland wars were, and remain, a matter of intense public interest to Victorians. The prosecution of Mr Defteros and Mr Condello was widely reported in 2004 and 2005, including in The Age newspaper. The Age's coverage of those events was available on its website from the time each article was published. There is also a Wikipedia article devoted to the 'Melbourne gangland killings'. The Wikipedia article and two articles published in The Age in 2004, together with two images of Mr Defteros, are the subject of these two proceedings.

6 In early 2016, Mr Defteros became aware that an internet search of his name using the Google search engine produced search results that included a snippet of an article published by The Age on 18 June 2004, the day after he was charged. The snippet (Search Result) contained a hyperlink to the full article by crime reporter John Silvester, entitled 'Underworld loses valued friend at court' (Underworld article). The Search Result and the Underworld article together comprise the Web Matter that Mr Defteros claims defamed him. In the 2016 proceeding,[1] the first of two proceedings brought by Mr Defteros against Google in this Court, he seeks damages for defamation from Google, as a publisher of the Web Matter. Google denies publication, denies that either the Search Result or the Underworld article was defamatory of Mr Defteros, and pleads a number of defences.

7 During 2017, Mr Defteros learned of four other matters on the world wide web that he considers defamed him, and which are the subject of the 2017 proceeding:[2]

(a) The First Matter was a composite image, comprising four photographs - one of Mr Defteros, and three of Melbourne gangland figures.

(b) The First Matter was hyperlinked to the Second Matter, an article published by The Age on 3 August 2004, entitled 'Gangland's price of peace' (Gangland article).

(c) The Third Matter was another image, comprising two photographs of Mr Defteros and some derisive text.

(d) The Fourth Matter was a Wikipedia article entitled 'Melbourne gangland killings' (Wikipedia Article).

Each of these matters was found by Mr Defteros by one or more Google searches conducted in 2017. In the 2017 proceeding, Mr Defteros sues Google for damages for defamation, as the publisher of these matters. Google denies that it published the Second Matter - the Gangland article - and the Fourth Matter - the Wikipedia article. It denies that any of the four matters is defamatory of Mr Defteros, and pleads various defences.

8 The agreed issues for determination in both proceedings, and my conclusions in relation to each issue, are as follows:

Issue 1: Has the plaintiff established that Google published the matters set out in Annexure A to the Amended Statement of Claim (the Web Matter)?

Yes. Google published both the search results and the Underworld article, reached by clicking on a hyperlink within the search results.

(a) from what date did Google publish the Web Matter; and

Google published the Web Matter from 11 February 2016 to 24 December 2016, to seven identified people, and to a number of other unidentified users of its search engine. Google published the Underworld article to up to 150 people who clicked through to the article from a Google search of 'george defteros'.

Issue 3: Has the plaintiff established that Google published:

Yes. Google published the images that were the First Matter and the Third Matter. It also published the articles that were the Second Matter and the Fourth Matter, reached by clicking on a hyperlink within the search results.

(a) from what date did Google publish the relevant matter; and

(b) to whom did Google publish the relevant matter?

Google published the First Matter between 27 September 2017 and March 2019, to two identified people and to a number of other unidentified users. It published the First Matter to around 500 people in total.

Google published the Second Matter between 27 September 2017 and March 2019, to a subset of the people to whom it published the First Matter, including two identified people. It published the Second Matter to around 100 people.

Google published the Third Matter between 27 September 2017 and 7 April 2018, to one identified person and to about 1,200 unidentified users of its search engine.

Google published the Fourth Matter between 27 September 2017 and the end of November 2017, to about 25 users of its search engine, including one identified person.

Issue 5: Was Google an innocent disseminator of the Web Matter?

Yes, until 11 February 2016, a reasonable time after Google received notice on 4 February 2016 that its search results included the Web Matter.

Issue 6: Was Google an innocent disseminator of:

Yes, until 27 September 2017, a reasonable time after Google received notice on 20 September 2017 that its search results included the four matters.

Issue 7: Has the plaintiff established that the Web Matter, in its natural and ordinary meaning, would have conveyed to the ordinary, reasonable reader any of the following imputations:

(a) the plaintiff crossed the line from professional lawyer for, to confidant and friend of, criminal elements (Imputation 1);

(b) the plaintiff acted to pervert the course of justice in respect of the investigation into the murder of Alphonse Gangitano by the creation of false witness statements in respect thereof (Imputation 2);

(c) the plaintiff masquerades as a lawyer when in fact he is a 'stand over' man and achieves outcomes for his clients by threat and use of violence rather than advocacy (Imputation 3)?

Issue 8: Has the plaintiff established that the First Matter, in its natural and ordinary meaning, would have conveyed to the ordinary, reasonable reader the imputation that the plaintiff was a criminal associate of the Melbourne underworld figures, Mario Condello, Carl Williams, and George Williams (Imputation 4)?

Issue 9: Has the plaintiff established that the Second Matter, in its natural and ordinary meaning, would have conveyed to the ordinary, reasonable reader any of the following imputations:

(a) the plaintiff hatched a plot to kill Carl Williams? (Imputation 5)

(b) the plaintiff attempted to arrange for the killing of Carl and George Williams? (Imputation 6)

Issue 10: Has the plaintiff established that the Third Matter, in its natural and ordinary meaning, would have conveyed to the ordinary, reasonable reader any of the following imputations:

(a) the plaintiff should not be entitled to practise as a lawyer? (Imputation 7)

(b) the plaintiff should not be a lawyer? (Imputation 8)

(c) the plaintiff is a criminal associate of the Melbourne underworld (Imputation 9)?

Issue 11: Has the plaintiff established that the Fourth Matter, in its natural and ordinary meaning, would have conveyed to the ordinary, reasonable reader the imputation that the plaintiff was a criminal associate of the Melbourne underworld group, 'The Carlton Crew' (Imputation 10)?

Issue 12: In the alternative to Issue 8, has the plaintiff established the existence of:

(a) the fact that the plaintiff is a well-known criminal lawyer and is identifiable by an image of him (Extrinsic fact 1); and

(b) the fact that Mario Condello, Carl Williams and George Williams were well-known Melbourne underworld figures and each is identifiable by an image of him (Extrinsic fact 2)?

Issue 13: If yes to Issue 12, has the plaintiff established that the First Matter would have conveyed Imputation 4 to a reasonable person with knowledge of the extrinsic facts?

Issue 14: Was the Web Matter published on occasions of qualified privilege at common law?

No. Google had no community or reciprocity of interest with the users to whom it presented the specific search results the subject of the 2016 proceeding.

were published on occasions of qualified privilege at common law?

No. Google had no community or reciprocity of interest with the users to whom it presented the specific search results the subject of the 2017 proceeding.

(f) Statutory qualified privilege (s 30)

Issue 16: Has Google established that the recipient(s) of the Web Matter had an interest or apparent interest in having information on some subject, and that the Web Matter was published to the recipient(s) in the course of giving information on that subject, and that the conduct of Google in publishing the Web Matter was reasonable in the circumstances?

Yes, in relation to a substantial proportion of the up to 150 people to whom it was published. No, in relation to a smaller number of those people.

Issue 17: Has Google established that the recipient(s) of any of the First, Second or Fourth Matters had an interest or apparent interest in having information on some subject, and that Matter was published to the recipient(s) in the course of giving information on that subject, and that the conduct of Google in publishing that Matter was reasonable in the circumstances?

Does not arise in relation to the First and Second Matters.

(g) Statutory defence of fair report (s 29)

Issue 18: Has Google established that the Second Matter:

(a) was, or was contained in, an earlier published report of proceedings of public concern; and

(b) was, or was contained in, a fair copy of the earlier published report; and

(c) Google had no knowledge that would reasonably make it aware that the earlier published report was not fair?

(h) Statutory defence of innocent dissemination (s 32)

(a) it published the Web Matter merely in the capacity of a subordinate distributor; and

(b) it neither knew, nor ought reasonably to have known, that the Web Matter was defamatory; and

(c) its lack of knowledge was not due to any negligence on its part?

(a) it published any of the First, Second, Third or Fourth Matters merely in the capacity of a subordinate distributor; and

(b) it neither knew, nor ought reasonably to have known, that that Matter was defamatory; and

(c) its lack of knowledge was not due to any negligence on its part?

(i) Statutory defence of triviality (s 33)

Issue 21: Has Google established that the circumstances of the publication of the Web Matter were such that the plaintiff was unlikely to sustain any harm?

Issue 22: Has Google established that the circumstances of the publication of any of the First, Second, Third, or Fourth Matters were such that the plaintiff was unlikely to sustain any harm?

Issue 23: Has Google established that the plaintiff consented to the publication of the Web Matter?

Issue 24: Has Google established that the plaintiff consented to the publication of any of the First, Second or Fourth Matters?

No, other than to one identified person to whom Google published the Fourth Matter.

(k) General damages (and s 38)

Issue 25: What, if any, general damages and aggravated damages is the plaintiff entitled to against Google?

Mr Defteros is entitled to general damages of $40,000 in the 2016 proceeding, taking into account mitigation. He is not entitled to aggravated damages.

Issue 26: Has Google established that general damages (if any) should be mitigated and if so, to what extent?[3]

Yes, general damages should be mitigated in the amount of $10,000.

Issue 27: What, if any, general damages and aggravated damages is the plaintiff entitled to against Google?

Mr Defteros is not entitled to damages in the 2017 proceeding.

10 The Web Matter that is the subject of the 2016 proceeding was Annexure A to the writ, and comprises print reproductions of two webpages.

11 The first webpage is a set of search results that was displayed on the website www.google.com.au in response to the search term 'george defteros'. It includes the following Search Result:

Underworld loses valued friend at court -SpecialsGanglandKillings ...

www.theage.com.au > Features > Crime & Corruption ▼

June 18 2004 - Pub bouncer-turned-criminal lawyer George Defteros always prided himself on being able to avoid a king hit - The Age Online

12 A click on the hyperlink in the Search Result displayed the Underworld article, the second of the two webpages. It is an article from website www.theage.com.au by John Silvester, entitled 'Underworld loses valued friend at court' and dated 18 June 2004. It includes a photograph of Mr Defteros, captioned 'George Defteros leaves court yesterday'. The article read, in full:

Underworld loses valued friend at court

June 18, 2004

Melbourne's villains trust lawyer George Defteros. Now he has his own troubles, reports John Silvester.

Pub bouncer-turned-criminal lawyer George Defteros always prided himself on being able to avoid a king hit. But the solicitor with a survivor's instinct was visibly shaken when arrested near his city office yesterday in connection with Melbourne's gangland war.

For more than 10 years Defteros has been the lawyer of choice for many colourful identities, although his client list has been shortened by the trend of gangsters killing each other.

Defteros was once involved in a fight with his office manager, George Marcus, outside the old City Court building in Russell Street. Marcus was shot dead in Box Hill in an unrelated incident in April 1997.

He helped finance his Monash University law studies by working part-time as a bouncer at the Croxton Park Hotel. There he learned that the gift of the gab, backed by the subtle threat of violence, helps win most arguments.

He recently recalled that more than once in his early days of practising criminal law, an offender would pull him up and ask if he was the bouncer who once gave threw him out of the "Croc". He would always plead not guilty - a course he recommends for most of his clients.

Now some of those clients will have to find a new mouthpiece - Defteros will be disqualified from appearing in matters directly relating to the underworld murders because of an obvious conflict of interest.

This will sadden his longtime confidant, Mick Gatto, who is in jail charged with the murder of Andrew Veniamin - a suspected underworld hitman shot dead in a Carlton restaurant on March 23.

Defteros was served with the police brief of evidence last week and was busy building a case for his client. Gatto was planning to apply for bail, but that may be delayed by his lawyer's own pressing matters.

Police say two warring sides are central to many of Melbourne's gangland murders. The battle is said to be between an established criminal network, the Carlton Crew, and the so-called up-and-comers.

For the Carlton Crew, George Defteros has been the lawyer of choice. He represented Alphonse Gangitano, who was murdered in his Templestowe home in January 1998; Mick Gatto; Perth criminal identity, John Kizon; kickboxing referee Dave Hedgcock; and fugitive Mexican banker Carlos Cabal Peniche, who was wanted over a misunderstanding involving $1.12 billion.

Another prominent client was St Kilda footballer Stephen Milne, investigated over rape allegations earlier this year.

He also represented lawyer-turned-alleged crime figure Mario Condello. Last week police arrested four men over an alleged plot to kill Condello. One of those was Carl Williams, a key figure in the up-and-comers group and central to a number of the Purana taskforce's murder investigations.

Yesterday police charged Condello and Defteros with conspiracy to murder Williams, his father George and the unidentified minder for the father-son team.

In the life of George Defteros, the line between client, associate and friend has become blurred over the years.

He considered Graham "the Munster" Kinniburgh a friend and would sometimes dine with the suspected organised crime figure. Kinniburgh was murdered on December 13 last year.

He also enjoyed the company of Gangitano, so much so that he agreed to provide him with something most lawyers hate - a fee discount, from $100,000 to $70,000 as part of an informal customer loyalty program. He described Gangitano as a respected businessman, devoted family man and loyal friend. Police found the description overly generous.

Their relationship was long and mutually beneficial. Gangitano was charged with the 1995 murder of standover man Greg Workman, shot outside an underworld party in 1995.

Gangitano was in serious trouble because the police had two female witnesses. But the women became disenchanted with the police protection program and rang Gangitano's right-hand man, Jason Moran.

According to a confidential police report: "Both witnesses were then debriefed by Defteros and a staged audio tape made of both women recanting their statements".

The witnesses were then sent overseas (Gangitano paid) and the murder case collapsed.

Police investigated whether they could charge Defteros with conspiracy to pervert the course of justice but were told they didn't have a case. To make matters worse, Defteros sent police a legal bill for $69,975.35 - Gangitano's defence fee.

In recent months, as his clients have taken a higher profile, so has he. Recently Defteros has found himself the victim of regular threats. He told the Herald Sun: "I think people should calm down and people should appreciate that we, as lawyers, act in the criminal law area for the best interests of the client ... I am concerned, however, to portray myself first and foremost as a criminal lawyer, and nothing else."

Police have been concerned for some time that a few lawyers have, in their view, crossed the line and become players in the underworld rather than remaining neutral advocates.

High-profile lawyer Andrew Fraser was seen as one who ran with his clients. He is now serving a minimum of five years for cocaine trafficking.

Another lawyer may soon be asked questions about using court documents to identify an informer in major drug cases and whether that information was passed on to clients.

But legal and ethical dilemmas are no longer the concern of Mario Condello. He was once a practising solicitor but lost his ticket when convicted of a series of offences, including arson and a $1.4 million art fraud.

Last week Mario Condello spoke to The Bulletin magazine. He was photographed in the laneway near his office and about 50 metres from Defteros's city office.

Condello no longer speaks like a lawyer, preferring the language of the colourful Carlton identity he has become. Once criminals liked to conduct business in the shadows. Today's underworld figures agree to photo shoots and compete to produce media one-liners. The only time it seems they respond with "no comment" is when police are asking the questions.

In his interview, Condello showed himself to be somewhat of a criminal snob, claiming moral superiority over the up-and-comers. "We really didn't have a problem with them because we are not in the line of business they are in. We don't have anything to do with their line of business and, quite frankly, we despise anyone who has anything to do with that line of business."

He was referring to allegations that the up-and-comers were involved in amphetamine trafficking, although he apparently did not mention his own conviction over a cannabis plantation.

"No one wants any further destruction of life. No one wants any further traumas, stress or anything of the like least of all taking a life. It's absolutely absurd," he said.

Condello said he had been involved in peace meetings with Carl and George Williams. On Wednesday last week police arrested two men outside the Brighton cemetery near Condello's home. Police alleged the pair intended to kill Condello as he walked his dogs.

Condello talked tough to The Bulletin. "Once they reached the other side of the road where my place was, they would not have been able to walk back to the car, I can assure you they would not have been able to return. Now you make your own assessment of what I'm saying and thank God it turned out the way it did. Thank God for them and thank God for me."

But the truth was that Condello had moved from the house months earlier. It was the police Special Operations Group (known as the Sons of God) who made the arrests.

Condello said the peace talks with the Williamses had occurred before police foiled the alleged plot against his life. But despite the alleged conspiracy to kill him, he said he was prepared to turn the other cheek. "I didn't like what happened. I hope it just doesn't continue to happen to others or to myself for that matter because ... I am prepared to forgive once and that's as far as it goes. No more," he said.

Detectives are not so sure.

Police believe that another man, Lewis Caine, first took the contract to kill Condello, but the Carlton Crew learned of the plot and Caine was murdered first. His body was found in Brunswick on May 8. (In a touching side story, Caine's lawyer girlfriend worked for Defteros. She successfully asked for sperm to be taken from Caine's corpse so she could have his baby.)

Condello had something to say to his would-be hunters. "My message is stay away from me. I'm bad luck for you people. Stay away, don't come near me, please." But there was another group hunting Condello - the Purana investigators, who came knocking yesterday.

13 The First Matter that is the subject of the 2017 proceeding is a composite image comprising four head and shoulders photographs of, from left to right, Mario Condello, Carl Williams, George Williams, and George Defteros. The First Matter is one of a number of images that was displayed on the website www.google.com.au in response to a search of the terms 'george defteros lawyer', 'george defteros lawyers', 'defteros', 'defteros lawyers', or 'george defteros'. It appeared in middle of the second row of images. Clicking on the image caused a larger version of it to be displayed, in the centre of the page of image search results.

14 The Second Matter was reached by clicking again on the First Matter. The Second Matter was an article on The Age website by Stephen Moynihan dated 3 August 2004, entitled 'Gangland's price of peace' (Gangland article). The image that is the First Matter appeared at the top of the article, above the words 'Mario Condello, Carl Williams, George Williams and George Defteros'. The article read, in full:

Gangland's price of peace

By Stephen Moynihan

August 3, 2004

It was the plot they said would end Melbourne's six-year long underworld war.

Hatched during meetings in country Victoria and the cafeteria of a city department store, alleged crime boss Mario Condello, criminal lawyer George Defteros and a police informer hatched a plot to kill crime identity Carl Williams, a court heard yesterday.

Condello, the alleged leader of the so-called "Carlton Crew" and the main rival of Williams, is said to have wanted his enemy dead to end the gangland war.

According to police evidence in the Melbourne Magistrates Court, Defteros made contact with the informer, asking him to kill Williams, his father, George, and a third man, believed to be a bodyguard.

Defteros is alleged to have set up a meeting between the informer and Condello, then removed himself from the plot.

The informer was to have been paid $150,000 for each killing and the deal formalised with an extra $50,000 deposit.

However, neither Condello nor Defteros knew the man they allegedly hired to kill Williams was a police informer. Nor did they know that their conversations were being recorded and listened to by the Purana taskforce, investigating the war.

As the alleged plot to kill Williams mounted, so too say police did the evidence against Condello and Defteros. It culminated in their arrests on June 17.

A week earlier, Carl Williams and three other men were arrested and charged with plotting to kill Condello.

A court was told then that the two main rivals in the gangland war were simultaneously plotting to kill each other.

At least 27 people have been killed in the war, which has embroiled Victoria Police and the State Government in allegations of police corruption.

Condello, 52, applied for bail. He is charged with conspiracy and incitement to murder.

Purana taskforce member Detective Senior Constable Dean Grande opposed bail.

Condello sat in the dock wearing a navy double-breasted jacket and black shirt done up to the collar. He was flanked by three security guards.

He was supported by his wife, Vanda, and daughter Vanessa.

He listened as Senior Constable Grande gave evidence on the alleged murder plot.

"Until this f---ing c--- (Williams) is put in a hole, there will be no peace," Condello is alleged to have said.

This snippet is one of the conversations allegedly taped and that police say will form part of the case against Condello.

Senior Constable Grande said the investigation into Condello began in early March, using the police informer, who allegedly met Defteros in country Victoria.

Defteros allegedly told the informer that the Carlton Crew was under threat and that the group could not afford to pay "people in Western Australia" to carry out the killings because their prices were too high.

Police said Condello had assumed leadership of the Carlton Crew after his friend Dominic "Mick" Gatto was arrested in March after shooting Williams' bodyguard, Andrew Veniamin, in a Carlton restaurant. Gatto claims self-defence.

Defteros is alleged to have asked the informer to come to Melbourne and said: "Do you have what it takes to kill someone?"

Two more taped conversations between Defteros and the informer occurred before Defteros organised for Condello to meet the informer in Hardware Lane around March 12.

It was at this meeting, Senior Constable Grande said, that Condello ordered the killings.

The following day, the two men allegedly sat in the cafeteria of Myer's city store, where Condello told the informer that Carl Williams "hangs around" the Marriott Hotel in the CBD.

Condello is alleged to have told the informer to kill Williams at the hotel if he had the chance.

Not only did Condello want to kill Carl Williams, he wanted Williams' father, George, dead too. He said "the old man" was often in the company of two "heavies" and it would be a good idea to kill "the heavies" first.

The next day, Condello and the informer are alleged to have met in another city department store, this time David Jones, and discussed their need to buy new mobile phones.

Senior Constable Grande opposed Condello's bail application, saying that Condello would continue to plot the murder of George Williams. He said Condello had intimate knowledge of the informer's family and would cause the informer harm.

Condello's lawyer, Brian Rolfe, said Condello's health was deteriorating while being locked up for 23 hours a day in a maximum-security cell.

Mr Rolfe said his client was not a risk to flee the country.

Magistrate Lisa Hannon is expected to make a decision on Condello's application today.

15 The Third Matter is an image that was displayed on the website www.google.com.au in response to a search of the terms 'george defteros lawyer', or 'carlton crew'. It comprises two photographs of Mr Defteros. In the first photograph he is wearing a suit and tie with a briefcase under his arm, and appears to be leaving court. In the second photograph he is seated behind a desk, wearing a jacket and open necked shirt, leaning back in his chair and smiling. The image also includes some text:

George Defteros. Carlton Crew lawyer. Recently got his license back. And got thru the ordeal alive! Fuckin lawyers!

16 The Fourth Matter comprises a search result that was displayed on the website www.google.com.au in response to a search of the terms 'melbourne convicted underworld', 'melbourne underworld figures', or 'melbourne convicted mafia', together with the web page reached by clicking on the search result. The pleaded search result read:

Melbourne gangland killings - Wikipedia

https//en.wikipedia.org/wiki/Melbourne_gangland_killings ▼

The Melbourne gangland killings were the murders in Melbourne, Victoria, Australia of 36 criminal figures or partners between 16 January 1998 and 13 August ...

Timeline of deaths - 2000-2002 - 2003 - 2009

The print reproduction of the search result that was Annexure D to the statement of claim contained a different snippet below the hyperlink to the Wikipedia article, as follows:

Jump to arrests and sentencing - In May 2005 Carl Williams was additionally charged with the ... other underworld figures were arrested in Melbourne.

Melbourne gangland killings - Carl Williams - Mario Condello

17 The web page was a Wikipedia article entitled 'Melbourne gangland killings'. The introduction read:[4]

The Melbourne gangland killings were the murders in Melbourne, Victoria, Australia of 36 criminal figures or partners between 16 January 1998 and 13 August 2010. The murders were in a series of retributional murders involving various underworld groups. The deaths caused a sustained power vacuum within Melbourne's criminal community, as various factions fought for control and influence. The majority of the murders are still unsolved, although police from the Purana Taskforce believe that Carl Williams was responsible for ten of them. The period culminated in the arrest of Carl Williams, who pleaded guilty on 28 February 2007 to three of the murders.

Since the confession of Williams, the ultimate source of the violence has become public knowledge. On his 29th birthday while meeting with Jason Moran and his half brother Mark Moran on 13 October 1999 at a suburban park in Gladstone Park, Jason Moran shot Carl Williams in the stomach over a dispute about money earned in the amphetamine trade. Through the period after his run-in with the Moran family, Williams commenced a war with the aim of killing all of the Moran clan.

The murder of former lawyer Mario Condello on 6 February 2006, caused speculation of a possible resurgence in the killings, although this was denied by police.

On 19 April 2010, Carl Williams died while incarcerated at Barwon Prison after being attacked by an inmate. Williams would have been 71 before becoming eligible for parole.

After the table of contents, the first section of the article was headed 'Background'. It read:

The majority of underworld crime figures and major incidents can be traced back to the Painters and Dockers Union that existed on Melbourne's waterfront after the Second World War. The Union had a Mafia-like structure, and most criminal activity was centred around control of the Union, and the cut associated with the drugs (primarily heroin and cocaine) that passed through the port. The Melbourne Markets were seen as a natural distribution point for these illegal substances (they were just across the road from the docks area).

By 1990 the local manufacture of amphetamines had increased to the point where the Police described Melbourne as the "amphetamine capital of Australia". As well as drug dealing, criminals received income through protection rackets in King Street nightclubs, as well as in prostitution, illegal gambling, and armed robbery.

Groups and factions

The following groups of people were connected to the murders. A number of those named below were members of more than one group at the same time.

The Honoured Society

A Calabrian 'Ndrangheta group that has long been linked with control of Melbourne's fruit and vegetable markets. Frank Benvenuto, Frank Tizzone, Robert Trimbole and Domenico Italiano are reported to have been associated with this group.

A loose association of Irish waterfront workers and ex-members of the Painters and Dockers Union. Brian, Les, and Ray Kane, Graham Kinniburgh, Victor Pierce, Lewis, Mark, and Jason Moran have all been associated with 'the Dockers'. The Moran family operated jointly with the mostly Italian Carlton Crew.

An independent cosa nostra group created by Alphonse Gangitano. Domenic "Mick" Gatto and his lawyer George Defteros, Matt Tomas, Mario Condello, and brothers Vincenzo and Gerardo Manella are also associated with this group.

Led by Nikolai "The Russian" Radev, a convicted drug dealer and career criminal who was shot in Queen St, Coburg in 2003. No killer has been formally identified, although several possibles have been named (see Nik Radev). Mark Mallia, Housam Zayat, lstvan Gulyas and Willie Thompson were known associates.

Led by Paul "PK" Kallipolitis. Dino Dibra, Andrew 'Benji' Veniamin, Rocco Arico, Mark Mallia, Bluey Watkins, Johnny Auciello, Mark Morrison, Michael Dewhirst and Terrence Chimmiri were also members. All members of the group had been friends from their childhood. Benji Veniamin took over the group when Paul PK Kallipolitis was murdered.

Led by Carl Williams, his father George Williams. Antonios Mokbel, Andrew Veniamin, Dino Dibra, Alfonso Traglia, Damien Cossu, Victor Brincat, Terrence Chimmiri, Hizir Ferman, Chris Orfandis and Robert Musso were known associates.

An endnote [8] appeared next to the name George Defteros under the heading 'The Carlton Crew'. The endnote referenced, by means of a hyperlink, an archived copy of the Underworld article as follows:

Silvester, John (18 June 2004), "Underworld loses valued friend at court" (https://web.archive.org/web/2090625065342/http://www.theage.com.au/articles/2004/06/17/1087245041025.html), The Age. Archived from the original (http://www.theage/com.au/articles/2004/06/17/10872445041025.html) on 25 June 2009. Retrieved 19 April 2010.

18 The Wikipedia article continued on for several more pages. There were two other mentions of Mr Defteros. The first was in the detailed timeline of deaths, for the year 2004:

Purana Taskforce detectives arrested Carl Williams for conspiracy to murder on 9 June. His associates Sean Sonnet and Gregg Hildebrandt were arrested only metres from the home of Mario Condello. Victoria Police said the raids had "absolutely" saved Mario Condello from becoming the 28th gangland victim. Eight days later Mario Condello and Mick Gatto's solicitor, George Defteros, were arrested over a simultaneous plan to murder George Williams and Carl Williams.

The final mention of Mr Defteros was under the heading 'Arrests and sentencing'. The third paragraph of that section read:

Conspiracy to murder charges against George Defteros and Mario Condello were dropped nolle prosequi by the DPP in June 2005.

19 The first issue for determination in both proceedings is whether Google published the matters complained of by Mr Defteros. Before turning to the legal principles, it is necessary to refer to the evidence about the internet and the operation of the Google search engine.

20 Dr Raghava Kondepudy, a software engineer employed by Google, gave evidence explaining the operation of the Google search engine. The following paragraphs are drawn from Dr Kondepudy's evidence.

21 The World Wide Web is a vast system of linked documents accessed by the internet. It comprises trillions of pages generated by millions of people and organisations worldwide, and is constantly changing and expanding.

22 Each webpage has a unique Uniform Resource Locator or URL, which acts as an address for that webpage. The code commonly used for creating webpages is called HyperText Markup Language or 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.

23 A webpage typically contains hyperlinks to other webpages. A hyperlink is some HTML code that contains a URL for another webpage. When a user clicks on a hyperlink on one webpage, the browser on the user's computer displays text and images from the other webpage. It is the myriad of hyperlinks between webpages that makes the Web what it is today.

24 The Web is something like a constantly growing, rapidly changing, vast digital library, and navigating it can be a challenge. It is easy enough to find a particular website if one knows the URL for the website. A user can type that URL into the browser's address bar, and can then follow hyperlinks within the site or use the site's search function. Similarly, a user who knows the exact URL for a specific webpage can type that in to the browser's address bar, and be taken directly to the webpage. However, users who do not know the URL for the webpage containing the information they seek need other tools to find their way around.

25 One popular tool for locating information on the Web is a search engine, which is an automated information retrieval system designed to allow a user to navigate the extensive information on the Web by the use of user-designed queries. The Google search engine is one of a number of search engines that are available; two other well-known search engines are Yahoo! and Bing. A user of the Google search engine can use it to search the entire Web, using Google Web Search. Google makes other more specific search functions available, for searching images, maps, videos, news, flights, and books.

26 Search engines use computer algorithms to make predictions about what webpages among the trillions of pages constituting the Web are most likely to be of interest to a user, by responding to the user's search query. Typically, a search engine returns a list of results in response to a search query, in the form of hyperlinks to webpages on the Web.

27 The Google search engine does this by first identifying what information is available on the Web, using a Web crawler program. This fully automated program uses a large number of computers to constantly visit and process webpages on the Web. The crawler program determines which websites to crawl and how often, as well as what information is collected from them. Webpages that it ranks as important are crawled for new data more frequently than less important pages. Every time a webpage is re-crawled and new data is detected, the stored data relating to that webpage is updated.

28 Next, the Google search engine uses an indexing program to organise the data obtained by the Web crawler into a form that is more easily searched by computer algorithms. The indexer program builds a list of every webpage that contains each word found during the crawling stage. The indexer program also notes other aspects of a webpage, such as the date it was published, whether the page comprises text, images or video, and whether the webpage appears to be a news article. The resulting index contains each word and a list of the unique IDs that relate to the webpages that contain that word. The index is constantly refreshed as the Web crawler detects new data on the Web.

29 Then, when a user enters a search query in Google Web Search, the words from that query are evaluated by a series of algorithms, against the information in the index, as it is at that precise point in time. The search result that Google presents to the user is a list of links to webpages, ranked according to relevance, as estimated by the ranking algorithm. The ranking program uses various 'signals' or clues to identify what results the user is most likely looking for. Some of the signals used by the Google search engine are:

(a) the number of times one or more of the user's search terms appear on the webpage, as indexed by the indexer program;

(b) how often other web pages link to that web page, and the importance of the linking webpages (this signal is known as PageRank);

(c) how recently the content of that webpage was published or updated (freshness);

(d) evaluating the order in which the search terms appear on a webpage;

(e) the location of the user, as determined from the user's Internet Protocol or IP address; and

(f) the user's previous search history.

30 The format of the search results that Google presents to a user may vary depending on the user's device and browser. Typically, for each webpage listed in the search result, the user is shown the title of the webpage, with the search terms in bold. The title is also a hyperlink, which the user can click to reach the webpage. The result also contains a 'snippet' of the content of the webpage, and a shortened form of its URL. There may be many pages of search results, with the webpages that the algorithm determines to be most relevant appearing on the first page of results.

31 A Google image search results in a display of a collection of image 'thumbnails', each of which contains a hyperlink to an interstitial page that provides more information about the image. A click on the interstitial page then takes the user to the webpage where the image was found by the Google search engine.

32 The Google search engine conducts a Web search almost instantaneously - the average search response time is about half a second. Every month, over 100 billion searches are made by users of the Google search engine. Of these, 15% or more than 500 million searches each day are searches that have not been made using the Google search engine before.

33 Although humans who work for Google design the search engine and its component programs, a Google search is a fully automated process that operates without human intervention. The Google search engine is not capable of evaluating the meanings conveyed by the words and images on a webpage, including whether they are true, false, or defamatory.

34 However, Google can, by human intervention, alter the search results that are returned to a user. It does this in only limited circumstances, one of which is known as 'legal removal'. I discuss Google's removal process and policies below, in relation to the defence of qualified privilege. What matters for present purposes is that Google can, if it chooses, remove a webpage, identified by its URL, from the search results that are returned by the Google search engine. This does not remove the webpage from the Web, which can still be accessed directly, or found using other search engines. Google does not control the Web, or the content on it.

35 While the law as to publication is 'tolerably clear', its application to particular facts can be difficult, 'especially in the relatively novel context of internet search engine results'.[5] The relevant authorities were comprehensively reviewed by McDonald J in Trkulja v Google Inc,[6] by the Court of Appeal in Google LLC v Trkulja (Trkulja (CA)),[7] by Blue J in Duffy v Google Inc,[8] and by Kourakis CJ in Google Inc v Duffy (Duffy (FC)).[9] I will not attempt to replicate those surveys here. It is enough to state some general principles, and to identify how those principles have been applied by Australian courts in claims against a search engine provider such as Google.

36 To publish a libel is 'to convey by some means to the mind of another the defamatory sense embodied in the vehicle'.[10] Publication is a bilateral act that occurs when a publisher makes defamatory matter available and its meaning is comprehended by another person.[11]

37 A defendant publishes defamatory matter if the defendant is instrumental to the publication, by intentionally lending assistance to its existence for the purpose of being published, 'without reference to the precise degree' of assistance.[12] Any person who is 'in any degree accessory' to the publication is a principal in the act of publication.[13] This includes any person republishing matter originally published by another person.[14]

38 The tort of defamation is a tort of strict liability, in that it is not necessary that the defendant intend to injure the reputation of the plaintiff. A defendant will not be liable, however, unless it intended to communicate the relevant content.[15]

39 Mr Defteros framed his case against Google on the basis that it was a secondary or subordinate publisher. He accepted that it could not be liable for publication of any of the matters until it had notice that its search engine was returning results that included the images and hyperlinks to the articles he complains about in these proceedings.

40 Google submitted that it could not be liable as a secondary publisher, because its search engine is fully automated and does not intend the communication of any particular words or images, including any third party webpage to which a user might navigate. I do not accept this submission, which is at odds with the reasoning of Beach J in Trkulja v Google Inc (No. 5),[16] with the dicta of the Court of Appeal in Trkulja (CA),[17] and with the reasoning of the South Australian Full Court in Duffy (FC).[18] The Google search engine, described above, is not a passive tool. It is designed by humans who work for Google to operate in the way that it does, and in such a way that identified objectionable content can be removed, by human intervention, from the search results that Google displays to a user.

41 On that basis, I find that Google becomes a publisher of the search results that its search engine returns to a user who enters a search query, after it has notice of particular search results.[19]

42 As discussed, Google search results are presented as a list of webpages that respond to the query. Typically, each item on the list includes the title of the webpage, a hyperlink to it, and a snippet of its contents. Search results often include images relevant to the search query. Images displayed within search results are also published by Google when they are viewed by a user.

43 A Google search may return pages and pages of search results, many of which are never viewed by the user. Only the first page of results is presented to the user, and often only the top of that page is immediately visible to the user. The user may or may not scroll down to the bottom of the page, click on 'Images' or 'News' or other tabs, or click through to the second and subsequent pages. A search result is only published by Google when it is viewed by a user on the user's device. In this case, all of the search results in question appeared near the top of the first page of results returned by the Google search engine.

44 A more difficult question is whether Google is also a publisher of a third-party webpage that is reached by a user who clicks on a hyperlink within a search result.

45 The question was considered by the Full Court of the Supreme Court of South Australia in Duffy (FC), a case in which the plaintiff alleged that Google had published certain webpages that were defamatory of her. Kourakis CJ described the question as 'finely balanced':[20]

In one sense, the search results may be viewed as an invitation but the critical question is whether Google has, through the search facility it offers, republished the defamatory material in the Ripoff Report. Ultimately I have concluded that the paragraphs incorporate the contents of the Ripoff Report. I do so because Google's facilitation of the reading of the Ripoff Report is both substantial and proximate. Google has republished the Ripoff Reports by abstracting sufficient material to inform the searcher of its contents, by repeating and drawing attention to the defamatory imputation, and by providing instantaneous access to it though the hyperlink. The very purpose of an internet search engine is to encourage browsing and it is designed to achieve that purpose.

46 This conclusion followed from the Chief Justice's preference for the analysis of Abella J in Crookes v Newton,[21] a decision of the Supreme Court of Canada. Central to this analysis was the nature and role of the hyperlink, discussed by Abella J as follows:[22]

Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral - it expresses no opinion, nor does it have any control over, the content to which it refers.

...

The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential 'chill' in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.

...

Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content should that content by considered to be 'published' by the hyperlinker ...

47 As Kourakis CJ pointed out,[23] this analysis emphasised the importance of control over both content and reach as an element of publication, although control of that kind is often absent for secondary publishers. Nevertheless, the Chief Justice preferred it to the approaches of McLachlin CJC and Fish J in Crookes v Newton.[24]

48 In the end, the Full Court concluded that Google had published the defamatory material on the hyperlinked Ripoff Report webpages because its search results incorporated the defamatory material. It is notable that Duffy was not a case in which the Google search results were neutral, and it did not decide the question that must be addressed in this case - namely, does Google publish defamatory material on a third-party webpage that is reached by a user who clicks on a hyperlink within an apparently neutral search result?

49 Based on the conclusion and analysis in Duffy (FC), Google submitted that it does not publish a defamatory article on a third party webpage, reached by clicking on a hyperlink in a Google search result, unless the search result itself incorporates the defamatory material from that webpage. Otherwise, Google submitted, the search result and the hyperlink within it is content neutral.

50 I do not accept this submission, for two reasons. First, it would require me to limit the application of established principle as to publication based on policy considerations that are not matters for this Court. Second, the argument appears to me to conflate the two distinct issues of publication and meaning.

51 As to the first, the approach of the Full Court in Duffy (FC) was influenced by the conclusion of Abella J in Crookes v Newton that 'a hyperlink, by itself, should never be seen as "publication" of the content to which it refers'.[25] That conclusion was, in turn, influenced by her Honour's assessment that the contrary conclusion could have a 'devastating' chilling effect on the functioning of the internet.[26] That assessment might be thought to underestimate the vitality and resilience of the internet. More to the point, whether there are policy reasons to limit the extent to which a search engine provider is a publisher, for the purposes of the law of defamation, is a matter for law reform bodies to consider and, ultimately, for legislatures to address.

52 As the law stands in Australia, the common law casts the publication net wide. The liability of publishers is then limited by a range of common law and statutory defences. In particular, the common law 'defence' of innocent dissemination operates to limit the potential liability of search engine providers. Later in this judgment, I also consider the application of the statutory defence of qualified privilege to Google search results.

53 My second reason for rejecting Google's submission is that, as a matter of logic, whether a person publishes a matter cannot depend on whether the matter carries a defamatory meaning. It is one question whether a defendant publishes a matter - whether it be a book, a newspaper article, a cartoon, or a webpage - and another question whether the matter carries defamatory imputations. Both are elements of the tort of defamation. In this case, both are in issue.

54 Applying the principles enunciated by the High Court in Webb v Bloch,[27] I conclude that Google 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. This is exactly what the Google search engine is designed to do, consistent with Google's mission 'to organise the world's information and make it universally accessible and useful'.[28]

55 The 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. The analogy with a reference in a library catalogue, while useful, does not quite capture what occurs when a search engine provides a user with search result that includes a hyperlink to a webpage. A hyperlink is more than simply a reference to where information can be found on the Web. A closer analogy is a librarian who, instantaneously, fetches a book from the shelf 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. In 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.[29]

56 The parties also had different positions on the question of what amounted to sufficient notice to activate Google's liability as a secondary publisher. Mr Defteros submitted that it was sufficient that Google knew that its search results included the content that he claimed to be defamatory, and that it need not have known that the images and articles defamed him. Google submitted that it could not be liable unless it knew or ought reasonably have known that the content in question was defamatory of the plaintiff.[30]

57 Google acknowledged, however, that this submission was rejected in Duffy (FC). In that case, Kourakis CJ held:[31]

Knowledge that the words carry the imputation, let alone knowledge that they cannot be justified, need not be proved by the plaintiff or rebutted by the defendant. That would impose an impossible burden on the plaintiff and swing the pendulum radically in favour of freedom of expression and against the interest of the individual in protecting his or her reputation. Ignorance of the law is generally not an excuse or justification in any field of the law. The ignorant should not be allowed to wreck reputations with impunity. Once knowledge, actual or constructive, of the presence of the words is proved, the secondary publisher who persists in dissemination of the material carries the risk of the ultimate findings as to their meaning and absence of justification which may be made in any action brought by a primary publisher. The contrary position taken by Lord Denning in Goldsmith v Sperrings Ltd has not been accepted.

58 To put it a different way, knowledge of the presence of defamatory material is presumed against a primary publisher. The presumption can be rebutted by a secondary publisher who shows that it 'did not know and could not reasonably have known that the material disseminated contained the impugned words'.[32] Hence, the operator of a search engine will 'almost always, if not always' have a defence of innocent dissemination at common law before it is notified that the alleged defamatory material is being returned in the results produced by the search engine.[33] After notification, the secondary publisher has a reasonable time to consider the notice and remove the webpage from future search results.[34]

59 Based on my conclusions at [41] to [42] above, I find that Google published:

(a) the image that is the First Matter in the 2017 proceeding; and

(b) the image that is the Third Matter in the 2017 proceeding.

60 Google also published the Search Result that is part of the Web Matter in the 2016 proceeding, and the search result containing a hyperlink to the Wikipedia article that is the Fourth Matter in the 2017 proceeding. No complaint is made that those search results, on their own, defamed Mr Defteros. The complaint is about the webpages that the search results were hyperlinked to.

61 Based on my conclusions at [50]-[55] above, I find that Google published:

(a) the Web Matter in the 2016 proceeding, comprising both the Search Result and the Underworld article;

(b) the Second Matter in the 2017 proceeding, being the Gangland article reached by clicking on the hyperlink in the First Matter; and

(c) the Fourth Matter in the 2017 proceeding, being the Wikipedia article titled 'Melbourne gangland killings'.

62 I make these findings based on my view of the significance of the inclusion of a hyperlink in a Google search result. There was nothing in the search results themselves that incorporated or drew attention to the defamatory imputations that Mr Defteros alleged were conveyed by the Underworld article, the Gangland article and the Wikipedia article.

63 I now turn to the questions of when each of the matters was published, and to whom.

64 As a secondary publisher, Google could not be liable for publication of any of the matters complained of until a reasonable time after it was notified that its search results included those matters. The evidence of two Google employees, Ms Rachel Ahn and Dr Kondepudy, was that Google could consider and respond to a removal request within a week. I find that a week after notification is a reasonable time for Google to consider the notice and remove the URL from its future search results.

65 On 4 February 2016, Kevin Dorey, a solicitor employed by Defteros Lawyers, completed a removal request form on the Google website. He provided the full URL of the Underworld article. In answer to the request to explain in detail why he believed the content on the URL was unlawful, he wrote:

In 2007 the subject of this article, Mr George Defteros, sued the publisher in defamation in the Victorian (Australia) Law Courts. The article was found to be defamatory and the publisher settled the matter, paying a confidential settlement sum. It was a term of the settlement that the article be removed from the internet.

Mr Dorey further advised that the entire article was found to be defamatory.

66 Some of the information provided by Mr Dorey with that initial removal request was not accurate. In particular, Mr Defteros has never sued the publisher of The Age in defamation in respect of the Underworld article, and The Age had not agreed to remove the article from its website.

67 Despite these inaccuracies, I find that this removal request was sufficient to notify Google that its search results included the Underworld article and that Mr Defteros claimed that the article was defamatory of him. Although Google decided not to remove the Underworld article from its search results, it could reasonably have done so by 11 February 2016.

68 The Age removed the Underworld article from appearing at the URL to which the Search Result linked on 24 December 2016.[35]

69 Google could therefore have published the Underworld article to a user of its search engine between 11 February 2016 and 24 December 2016.

70 On behalf of Mr Defteros, Mr Dorey sent two concerns notices to Google, notifying Google of publication by its search engine of various material that Mr Defteros claimed was defamatory. The material notified included the First Matter. The first notice was dated 22 August 2017, and the second was dated 12 September 2017.

71 There was no evidence that the first notice was either sent by Mr Dorey at Defteros Lawyers or received by Google. It was addressed to the email address removals@google.com, but was not sent in response to an email from that address. Google later advised Defteros Lawyers that emails to removals@google.com 'are not received unless you are responding to an email from that address using exactly the same subject line'.[36]

72 The second notice was sent by email to removals@google.com and also by registered mail to Google's head office in California. It enclosed a copy of the earlier notice of 22 August 2017. While the email was not received, Google received the physical letter and its enclosures on 20 September 2017.[37]

73 On that basis, by 27 September 2017, Google had been notified of the First Matter and had a reasonable time to consider and remove it from its search results.

74 Google could therefore have published the First Matter to a user of its search engine from 27 September 2017. Mr Defteros claimed that it did so until March 2019.

75 The Second Matter was the Gangland article, which could be reached by clicking on the hyperlink in the image that was the First Matter. It was notified to Google in the same concerns notice dated 12 September 2017 from Mr Dorey of Defteros Lawyers, which was received by Google on 20 September 2017.

76 Google could therefore have published the Second Matter to a user of its search engine from 27 September 2017. Again, Mr Defteros claimed that Google published the Second Matter until March 2019.

77 Google was also notified of the image that is the Third Matter by 20 September 2017, when it received the concerns notice dated 12 September 2017.

78 The notification was that searches of the terms 'george defteros lawyer' and 'carlton crew' resulted in the publication of material that included:

Image, and then hyperlink to slide, of George Defteros with the caption "George Defteros. Carlton Crew lawyer. Recently got his licence back. And got thru the ordeal alive! Fuckin lawyers!" (URL giving rise to image: http://slideplayer.com/slide/15 82274/)

Imputes that:

Our client should not be entitled to practise as a lawyer.

Our client should not be a lawyer.

Our client is a criminal associate of the Melbourne underworld.

79 A printed copy of the image was among the material enclosed with the notice.

80 Rachel Ahn is an employee of Google who was, in 2016, a member of the Google legal removals team with particular responsibility for Australia. She was the member of Google's legal removals team who received and considered this removal request. She decided that the Third Matter should be removed, because it was an image with 'some very crude language' and was not from the website of a reputable news source. The email that she wrote in response to the concerns notice included the following:

In relation to 1, images, we are minded to remove the image which your client alleges arises from the webpage at http://sliderplayer.com/slide/1582274. However, in order for us to review properly the images in question, and to process any removal which we decide to make, please provide the exact link to the image you wish to have removed from Image Search. To find this exact image URL:

1. Search for the image in Google Image Search

2. In the search results, click on the image in question

3. Click the 'View Image'

4. Copy and paste the URL in your email reply to us

If we do not receive further information from you as requested above, we will be unable to take further action on your removal request.

81 Delivery of this email failed. It was not received by Defteros Lawyers until 29 November 2017, when Google's solicitors sent a copy to Mr Dorey at Defteros Lawyers.[38] By that time, Mr Defteros had commenced the 2017 proceeding.

82 Defteros Lawyers did not provide Google with the full URL for the Third Matter until 3 April 2018.[39] Google prevented the image from being returned to Australian users of its search engine from 7 April 2018.[40]

83 Google argued that it was not notified of the Third Matter until 3 April 2018, when Defteros Lawyers provided the full URL that Google's policy requires.

84 Ms Ahn explained that she asked for the full URL for the image to make sure that the correct image was removed:[41]

We need the specific image URL to make sure that we target the exact image that the - um, the requestor is requesting for removal, so that we don't remove the incorrect image or, ah, we don't spend forever trying to figure out which one, like, back and forth, right. We could claim to have removed something, because we thought we removed the right image, um, and the complainant continues to see it, um, which is why we require the exact full URL.

85 Ms Ahn's request for the full URL was in accordance with Google's policy. As explained by Dr Kondepudy, there are two main rationales for that policy. The first is to ensure that removals are not overbroad. In this case, acting on the URL that was initially advised would have blocked an entire set of images in a slide deck from appearing in Google's search results, not only the image complained of by Mr Defteros. The second reason for the policy is that it eliminates any ambiguity about what is to be removed and what is not. By asking the person seeking removal to identify all URLs at which the objectionable material is located on the Web, Google can be confident that it has removed all of those webpages from its search results, and nothing else. If it is left to Google staff to identify which URL is to be removed, there is a danger that they will not identify the correct webpage.

86 While I accept that there are sound reasons for Google's policy, it is a policy and not an immutable law. The policy should be applied flexibly and sensibly in each particular case. Here, there was one distinctive image, which could have been located by Ms Ahn if she had simply followed the steps set out in her own email of 6 October 2017. The image had not been reproduced on multiple webpages, and there was sufficient information to locate it within the slide deck. There was no real obstacle to removing the Third Matter from Google's search results at any time after 27 September 2017.

87 Google could therefore have published the Third Matter to a user of its search engine between 27 September 2017 and 7 April 2018.

88 Google was notified of the Wikipedia article that is the Fourth Matter on 20 September 2017, when it received the concerns notice dated 12 September 2017. It could therefore have published the Wikipedia article 'Melbourne gangland killings' to a user of its search engine from 27 September 2017.

89 However, it is apparent from the evidence of Mr Defteros that the content of the Wikipedia article changed from time to time after it first came to his attention. In cross-examination, he was taken to a concerns notice dated 24 May 2018, sent by Defteros Lawyers to the Wikimedia Foundation. It enclosed a copy of the Wikipedia article, printed on 24 May 2018, that was in substantially the same form as the Fourth Matter. In particular, it contained the reference to Mr Defteros under the heading 'The Carlton Crew'. The letter noted 'despite our attempts to edit the Article in 2017 to remove the reference to our client, the reference to our client has returned and remains on the Website'.[42]

90 Mr Defteros agreed that was what had happened. He understood that he could edit a Wikipedia entry. At some stage in 2017, he was able to achieve a removal of the references to him in the article. From time to time the article reappeared in its original format. He was not able to say when, during the period September 2017 to March 2019, the article referred to him.[43]

91 I will return to this feature of the Fourth Matter in making my ultimate findings about publication.

92 Publication by a search engine provider to a user of the search engine is a bilateral act. The search engine returns a list of search results that respond to the user's search query, which are displayed on the user's device. If the user clicks on a hyperlink in any of the search results, the third-party webpage is also displayed on the user's device and (as I have found) published to the user. In this case, there is specific evidence of publication to a number of witnesses who viewed the matters complained of after conducting a Google search. In addition, there are admissions as to the number of searches conducted for the relevant search queries over the period in question, and the number of click throughs to the Underworld article, the Gangland article, and the Wikipedia article.

93 Mr Defteros also asked me to infer that there was substantial publication to unknown recipients during the relevant period. He accepted that this inference cannot be drawn as a matter of course in the case of a Google search, which involves interactive use of the internet by individual users.[44] I consider below whether the facts and circumstances support such an inference, in relation to each of the matters complained of.

94 There was evidence that the Web Matter was published to seven identified people in 2016 as follows.

95 Kevin Dorey was employed by Defteros Lawyers as a solicitor from 2013 to 2018. In about February 2016, he conducted a Google search for the name 'george defteros', which produced results including the Search Result. He clicked on the hyperlink in the Search Result, which took him to the Underworld article, which he read. He had seen the article before, in about 2007 or 2008. He believed that he conducted the same search at a later time, before Mr Defteros commenced the 2016 proceeding, and the 'same result came back'. Mr Dorey did not say whether he clicked through to the Underworld article on the second occasion.

96 Jenisa Vick worked at Defteros Lawyers between 2015 and 2018, as personal assistant to Mr Defteros. Some time in 2016, on Mr Defteros' instructions, she googled the name 'george defteros'. The search produced results that included the Search Result. She clicked on the hyperlink in the Search Result, which produced the Underworld article. Ms Vick read the article at that time. She was already aware of the article, having read it before 2016.

Plaintiff v Defendant

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