Google recently lost a lawsuit in an Australian court. The Supreme Court of Victoria handed down a decision on 30th April 2020 finding that Google had published a defamatory article about a Melbourne lawyer, Mr George Defteros, by continuing to return a search result to a number of people providing a link to an online newspaper article that was 12 years old, and that included incorrect information about him, after he had requested the search engine be programmed to disregard that material.

Background

Mr Defteros is a Melbourne lawyer. In 2004, he was arrested by police and accused with conspiring with one of his clients to kill a notorious criminal. He denied the allegation, and later the prosecutor withdrew the charges. In the meantime, he stopped working as a lawyer, and did not return to work for some time. In 2016, a number of people, including his own son, discovered that Google was returning a search result for "George Defteros" which linked to an old newspaper article which accused him of being a friend of criminals. Mr Defteros arrange for one of his staff to request Google to block that article from search results. Google declined to do that, on the basis that the newspaper concerned was a reputable publication.

Can search engines commit defamation?

The legal definition of "defamation" (which can vary from country to country) is to communicate untrue information about someone which lowers their reputation. It may come as a surprise to some readers that a search engine operator can be blamed for content created by a newspaper and placed online. After all, a search engine is automated, and simply indexes online material created by other persons. Google argued this exact point, in this case. The judge found that the situation is more complicated that that. Key elements covered by the court's judgment include the following:

• Once Google was alerted to the existence of the defamatory material, it became a "secondary publisher" when it kept returning search results which included the article. The court said Google should be allowed a reasonable amount of time to suppress the result, about one week. After that, it became responsible for republishing the content by showing a link to the article in search results.
• A person becomes equally liable with the original author for publishing defamatory material by being "instrumental" to the publishing, and "lending assistance". 
• A person cannot commit defamation as a secondary publisher accidentally. The publication must be intentional.
• The Google search engine is not a passive tool. It is designed by humans to work in a particular way, and can be programmed to remove objectionable content.
• Images and snippets of the original material that are displayed in search results are published by Google when they are viewed by a user.

Possibly controversially, the judge also held that Google republished the original defamatory webpage by presenting users with a hyperlink to that online article. Damages were awarded to the plaintiff.

Implications of the Case

This is not the first time that Google has been involved in a lawsuit alleging that it defamed someone. Google does have a procedure for suppressing search results when asked to do so for a legitimate reason. That procedure obviously did not work very well in this case, resulting in Google losing the lawsuit. One of the problems posed by these cases for Google and other search engine operators is that the courts seem to be widening the concept of defamation gradually. The law of defamation, like many aspects of the legal system, is evolving and adjusting to the new scenarios posed by the internet and other technological developments.

[Photo credit: Photo of the Melbourne Law Courts by  J Walker, a public domain image courtesy of Wikimedia Commons. This post is a a basic level, educational and informational discussion of legal concepts. It does not constitute legal advice for any person, nor does it create a lawyer/client relationship with any person. Although care has been taken to ensure that the law is described correctly at the time of publication, no guarantee of accuracy is provided.]