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In a huge win for internet giant Google, the court found the search engine was not legally responsible for defamatory news articles as it was not the publisher of said content.
Defamation lawyers told AAP they were surprised by the decision, saying it would have major implications for people trying to defend their reputation.
“The majority decision may seem intuitive to some, but it came as a shock to myself and my colleagues who practice as defamation lawyers,” UWA law professor Michael Douglas said.
“The only beneficiaries are massive tech companies, who pay little tax, and the losers are ordinary Australians who want to defend themselves against horrible things said online.”
Prof Douglas said the ruling meant Google could “wash its hands” of defamation action brought by Australians over search results linking to material that could harm their reputation.
Prior to the decision, Google already had several defences to protect itself in defamation cases, including innocent dissemination and serious harm, Monash University expert Neerav Srivastava said.
“We’ve got to remember that defamation law is about protecting reputations, and reputations are made and broken online,” he said.
“What we’re really starting to understand in the past few years is how damaging content can be.
“You’ve got to be careful about not giving people remedies when they’re genuinely being affected.”
Srivastava gave the example of employers using Google to search for information about job applicants.
“If you’re in that position, you don’t want defamatory material to be out there,” he said.
Removing Google as a legal recourse means people may have to go after every individual website with defamatory material to ensure it’s not listed on the search engine, he said.
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“It’ s a big company, but we’re saying policy favours not holding them potentially responsible. The bigger you are, the more you’ve got an ability to do something about it.”
The ruling came days after proposed reforms to national defamation law were released focusing on the extent to which search engines and social media sites are liable for defamatory material posted by third parties.
But Prof Douglas said the High Court’s decision had made the reform process redundant.
“The defamation law reform process needs to start again. It was premised by an understanding of the law, which is no longer correct,” he said.
But University of Sydney professor David Rolph, a member of an expert panel advising on the reforms, said the ruling would help make defamation law clearer.
“The significance here is that you can finely point to what is not considered to be publication for the purposes of defamation law,” he told AAP.
However, Srivastava disa greed saying the decision was inconsistent with previous case law on the issue.
“I don’t think it makes it clearer, it’s like a carve-out for search engines. It’s going to cause trouble,” he said.
In a decision by five out of seven justices, the High Court found Google was not the publisher of a 2004 defamatory article by The Age about Victorian lawyer George Defteros.
Google successfully argued that providing a hyperlink to a story through its search engine did not amount to publication and therefore was not defamation.
AAP has approached Google for a response.
With AAP. (Content has been tweaked for length and style.)
Jaw de Guzman is the content producer for Comms Room, a knowledge platform and website aimed at assisting the communications industry and its professionals.
