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Australian court overturns 'Google is a publisher' decision

Precedent essentially meant that search results could be considered defamatory, which is dumb

Australia's High Court has overturned the 2020 decision that search results pointing to news stories make Google a publisher.

That case concerned a lawyer named George Defteros, who was charged with conspiracy alongside one of his prominent criminal clients.

The charges against Defteros were dropped, but for years afterwards Google search results produced a link to a story in local broadsheet The Age – known as "the Underworld article" – reporting he had been charged.

Defteros was miffed that the allegation remained on the record, and that Google helped people find it. So he sued – and won.

Google appealed to the High Court, Australia's ultimate jurisdiction. It won, and has had orders made against it in the lower court set aside

A statement [PDF] from the High Court explains that the article about Defteros was defamatory, but that a majority of justices felt Google "did not lend assistance to The Age in communicating the defamatory matter contained in the Underworld article to the third-party user."

"The provision of a hyperlink in the Search Result merely facilitated access to the Underworld article and was not an act of participation in the bilateral process of communicating the contents of that article to a third party," the statement adds.

Google is therefore not a publisher and can't defame people with search results under Australian common law.

The full judgement [PDF] reveals that the decision was not unanimous. Two dissenting justices worried about a number of issues –including that Google did not act to remove the offending article from its indices, and that the adtech giant surely knows it has a symbiotic relationship with newspapers.

Readers of the 97-page judgement looking for ways to keep Google on the hook for search results will therefore find some material to work with.

But in the many jurisdictions that share legal DNA with Australia, the decision will be read more closely for the reasoning that found Google is not a publisher.

The Land Down Under remains a tricky place for online defamation, as a decision that comments on social media can defame remains in place. The nation also retains powers to force tech players to identify users and produce their encrypted messages. ®

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