Does the law of defamation apply in search engine results?
The Court has left open the possibility that publication results could expose Google to liability
Following a recent High Court Decision, a plaintiff will be able to proceed in litigation against Google LLC for claims that Google defamed him by its publication of certain search engine results.
In 2015, Mr T commenced defamation proceedings against Google in the Supreme Court of Victoria.
Mr T claimed that, by publishing certain search results in response to particular searches made using the Google search engine (for example, using the search phrase ‘Melbourne underworld crime’), Google had defamed him.
When search terms such as ‘Melbourne criminal underworld photos’ or ‘Melbourne underworld crime’ were entered into the Google search engine, the relevant search results displayed images of Mr T mixed with images of convicted Melbourne criminals. Mr T also alleged that, when the term ‘[his name]’ was entered into the search engine by a user, the Google autocomplete predictions returned included ‘[his name] criminal’, and ‘[his name] Melbourne crime’ .
Mr T argued that the search results and autocomplete predictions were defamatory and implied that he was a "hardened and serious criminal in Melbourne", an associate of convicted criminals and underworld killers, and "such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a website that chronicles crime".
Mr T sought by way of relief damages (including aggravated and punitive damages) and an injunction against Google.
In the Supreme Court and the Court of Appeal
The originating process was issued on Google in the United States. Google brought an application seeking to set aside the proceeding and its service outside jurisdiction, relying on three grounds:
- that it had not published the allegedly defamatory search results
- that the search results in issue did not defame Mr T
- that it was entitled to immunity from suit.
The primary judge rejected the application. On appeal, the Court of Appeal upheld the second ground, finding that Mr T could not possibly succeed in showing that the search results and autocomplete predictions relied upon conveyed any of the defamatory imputations alleged. The Court of Appeal accordingly held that Mr T’s proceeding had no real prospect of success and ordered that the proceeding, and its service, be set aside.
The Court of Appeal also found that, while a search engine proprietor like Google is a publisher of search results (including autocomplete predictions), an innocent dissemination defence will almost always, if not always, be maintainable in a period before notification of an alleged defamation (Publication Finding).
In the High Court
Mr T was granted special leave to appeal to the High Court. In a unanimous decision, the High Court allowed Mr T’s appeal.
The Court identified the relevant test in relation to capacity to defame as "whether any of the search results complained of are capable of conveying any of the defamatory imputations alleged". The Court of Appeal, in considering whether "any of the defamatory imputations which are pleaded [are] arguably conveyed", applied the wrong test.
The High Court concluded that it was evident that at least some of the search results complained of had the capacity to convey to an ordinary reasonable person viewing the search results, that Mr T was somehow associated with the Melbourne criminal underworld, and, therefore, that the search results had the capacity to convey one or more of the defamatory imputations alleged.
The High Court also found that it was inappropriate for the Court of Appeal to make the Publication Finding. While the law as to publication is "tolerably clear", the Court noted that the application of that law is difficult, "especially in the relatively novel context of internet search engine results". Although it was not the basis on which it decided the appeal, the Court of Appeal had erred in making the Publication Finding, being a purportedly determinative finding of mixed fact and law. The High Court held it was inappropriate for the Court of Appeal to summarily determine issues relating to publication and Google’s possible defences at least until after discovery, and possibly at all.
The Court of Appeal had therefore erred in determining that the proceeding had no real prospect of success. The order of the Court of Appeal dismissing the proceeding was set aside, and Mr T is able to continue his defamation proceeding against Google in the Supreme Court of Victoria.
It is important to note that the High Court did not make any actual findings as to whether Google is liable for defamation for its search results.
As the Court recognised, whether the law of defamation can apply in the "relatively novel context" of search engine results remains a matter for a trial, which will no doubt involve complex evidence and significant legal argument.
However, the Court has left open the possibility that publication of search engine results could expose search engine proprietors such as Google to liability for its search engine results in defamation.
 Because the substance of the proceeding involves claims of defamation arising from the link between Mr T’s name, to avoid similar issues arising here in this article the appellant will be referred to as ‘Mr T’. Further information is available in the full judgment of the High Court available here:  HCA 25.
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