Are you legally liable for the contents of every web page you link to? Australia finally gets sensible

Back in February, I wrote about some remarkable twists and turns in Australian media law, which is weirdly where much of the Western world has been looking for ideas lately. One of those was particularly threatening to news organizations and other online publishers because it threatened the fundamental atomic unit of the internet: the link.

A lawsuit named Defteros v. Google argued that a website could defame someone without writing anything about them — or even knowing who they are. It was enough simply to link to another web page that contains defamatory content.

As a principle, that’s pretty terrifying for an open internet. Every URL you link to becomes a potential liability timebomb. So it was a little stunning when the Supreme Court of Victoria endorsed it last summer, ruling that Google owed a Melbourne lawyer $40,000 for including an Australian newspaper’s article in its search results.

Well, we have good news: Australia’s High Court — its SCOTUS — just reversed that decision, saying that the “provision of a hyperlink in the Search Result merely facilitated access to the…article and was not an act of participation in the bilateral process of communicating the contents of that article to a third party.”

But linkers aren’t out of the woods yet.

This dispute all began, oddly enough, in the world of Melbourne organized crime. Between 1998 and 2010, there were 32 murders of underworld figures in Melbourne, the product of internecine warfare between groups with names like “The Honoured Society” and “The Sunshine Crew.” A lawyer named George Defteros had long represented underground figures, and in 2004, he was arrested and charged, alongside one of his clients, with conspiring to murder a rival gang leader.

The day after his arrest, Melbourne daily The Age ran a story headlined “Underworld loses valued friend at court,” which, as a court later put it, “implied that Defteros crossed a line from professional lawyer for, to confidant and friend of, criminal elements.” (You can read the article in this court ruling. We can still link to court rulings, can’t we?)

A year later, the charges against Defteros were dropped, and he restarted his legal career. In 2007, he complained to The Age about the article still being up, but the paper didn’t agree that it was defamatory, and Defteros didn’t sue them. He did, however, sue the author of the article and a colleague who had turned it into a chapter in their book on the Melbourne underworld — but they settled that case out of court in 2010.

So no court had ever ruled that the article was defamatory. And it had never been taken down.

Fast forward to 2016 — almost 12 years after The Age’s article was published. A lawyer working for Defteros formally asked Google to remove the story from its search results, writing:

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.

(There are a lot of problems with all that. Defteros had not sued the publisher, The Age. The article had not been found to be defamatory “in the Victorian (Australia) Law Courts.” And The Age had not agreed to remove the article from the internet; indeed, that’s why it was still online more than a decade later.)

Google responded to the request by asking for a copy of the court order that had declared it defamatory. Defteros’ lawyer replied that there was no such court order, because of the confidential settlement, but that The Age had conceded the article was defamatory and agreed to have it taken down. (The Age had, in fact, done neither of things.) Google said, essentially, that this wasn’t their problem to deal with: If you think an article in The Age is defaming you, you should try to get The Age to take it down. If The Age decides to take it down — or if a court orders them to — Google can remove it from its search results.

Defteros did go back to The Age, but the newspaper still kept the story online. After a few more months, Defteros sued Google — not only for The Age’s article, but also for other content on the web Defteros objected to, including a Wikipedia article. And three weeks later, The Age finally took the story down.

There’s a lot there, so let’s bring it back to general principles. A Publisher made a web page about a Prominent Person on the Internet. Someone else — we’ll call them the Linker — made a link to that web page. Twelve years later, the Prominent Person tells the Linker that the Publisher’s web page is defamatory, even though no court has so ruled. The Prominent Person then sues the Linker because it didn’t immediately take down the web page on the Prominent Person’s word that it was defamatory. And a court says, yes, the Linker owes the Prominent Person $40,000 because linking to a web page “amounted to publication of the webpage.”

That the Linker here is Google is a distraction. The Linker could be anyone — a random Facebook user, a news organization, a politician. Every Australian who shared a link to The Age article on social media is just as liable, under this theory, as Google here — if anything, even more so, since their sharing it was an active choice, not a list of links generated by a search engine. Can you imagine being held legally liable not just for your own words, but also for the complete contents of every web page you’ve ever linked to, anywhere online?

The High Court of Australia’s ruling, then, is a welcome relief. It ruled 5–2 that holding Google liable for the content of every web page on the internet is…a stretch. You can find the decision here; some highlights (emphases mine) follow. First, from the majority decision, co-written by Chief Justice Susan Kiefel and Justice Jacqueline Gleeson:

The question of whether the appellant could be said to participate comes down to the assistance provided by the hyperlink to move to another webpage. This is not a strong basis for liability and it finds no support in existing authority in Australia or recent cases elsewhere. As observed in Crookes v Newton, a hyperlink is content-neutral. A search result is fundamentally a reference to something, somewhere else. Facilitating a person’s access to the contents of another’s webpage is not participating in the bilateral process of communicating its contents to that person.
The aim or purpose of the appellant in making information universally accessible should not be confused with whether it is motivated to and does produce income by providing hyperlinks, conducting a business in that sense. Neither factor is relevant to whether there is a publication. That question focuses upon what the appellant in fact does.

From Justice Stephen Gageler’s concurring opinion:

The conclusion of the primary judge that Google was a publisher, which was upheld by the Court of Appeal, was instead based on the broad proposition — necessarily applicable to the results of all Google searches — that the inclusion of a hyperlink in a search result is enough for the provision of the search result to amount to active and voluntary participation by Google in the process by which the matter referenced in the hyperlink is published to a user of the Google search engine. Her Honour said that “provision of a hyperlinked search result is instrumental to the communication of the content of the webpage to the user”, that “[t]he 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”, and that “[t]he 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.” I cannot accept a proposition of that breadth.

Gageler also quotes Australian media lawyer Matthew Collins in his opinion:

Hyperlinks are the synapses connecting different parts of the world wide web. Without hyperlinks, the web would be like a library without a catalogue: full of information, but with no sure means of finding it. Almost every web page contains hyperlinked information, so that content is endlessly connected to other content.

Justices James Edelman and Simon Steward also co-authored a concurrence. They’re quite harsh on Defteros’ lawyer’s initial statements to Google (“Each matter represented above was false”; “The solicitor responded with more falsehoods”; “Again, none of that was true.”)

Given that the appellant’s search engine must traverse trillions of webpages on billions of occasions each month, inferentially the appellant will have no actual knowledge of the content of those pages, save in exceptional circumstances. It will also, inferentially, and subject to exceptional circumstances, know nothing about: the authors of those webpages; why the webpages have been created; and whether the information they convey is accurate. Again, inferentially, and subject to exceptions, the appellant will know few specifics about the users of its search engine or their motivations for making particular searches.

…it has been established for more than a century that in every instance a person must have an intention to communicate before they can be a publisher. The concept of intention in the tort of defamation is not a unique idea dreamed up by ingenious defamation lawyers. It has exactly the same meaning as the intention in other torts of strict liability such as trespass to land, trespass to goods, or false imprisonment. To “intend something is to intervene in the world to bring about a chosen consequence”…

The Underworld article was not written by any employee or agent of the appellant; it was written by a reporter with no connection to the appellant, and published by an independent newspaper over which the appellant had no control or influence. The appellant did not in any way authorise the article to be written or published. And there was no submission that the appellant had ratified the communication of the article. Indeed, it was not suggested that the appellant had any prior knowledge of the existence of the article until February 2016, some 11 years after it first appeared in The Age.

But there were also opinions from the two justices who ruled against Google, Patrick Keane and Michelle Gordon. They both argue that Google, legally speaking, “published” the article in The Age by including it in its search engine, and are thus liable for its contents. Keane:

Google provided search results in response to users’ search queries. Those search results directed its users to The Age’s webpage containing the Underworld article. Through the hyperlinks provided by Google, users were thereby enabled to have direct and nearly instantaneous access to the Underworld article. All this occurred as Google intended by the operation of its search engine in accordance with its design and in the ordinary conduct of Google’s business. Google thereby participated in the publication of the Underworld article to a user of its search engine for the purposes of the law of defamation in Australia

Google’s search engine, and its component programs, are both designed by humans. They operate as they are intended to do in accordance with that design. That is so, even though the component processes of a Google search are fully automated and completed without human intervention. Further, while the Google search engine is not capable of evaluating the meanings conveyed by the words or images displayed on a webpage, including whether they are true, false or defamatory, human intervention can, and does, occur at the point of Google’s “legal removal” process.

So if Google indexes everything on the web, he seems to be arguing, it should be held legally liable for, well, everything on the web. And so would any search engine — watch out, DuckDuckGo.

…Google’s search engine generates results ranked in a specific order through the use of Google’s confidential and proprietary algorithms and methodology as the intended response to a query by Google’s users. Success for Google in its business of operating its search engine consists of its users clicking on a hyperlink because they are satisfied with Google’s response. This is as Google intends. To satisfy its users, Google ensures that its search engine is constantly learning from the large volumes of query data that it accumulates and processes: over 100 billion searches are made by its users every month, and of those more than 500 million each day have never been made before.

…it cannot sensibly be denied that a person who aids another to comprehend defamatory matter does participate in the publication of that matter to that person. There is nothing novel in this: a person who reads a defamatory writing to a blind or illiterate person publishes that writing, just as a person who reads a newspaper article aloud over the radio publishes the article

And here’s Gordon’s opinion, which to me seems to come from an alternate universe:

The ranking algorithm uses various signals or clues to determine the order in which to display results to users. Those clues include another important rank called PageRank, which evaluates how often other webpages link to that webpage, and the “importance” of those linking webpages. Creation and continuous operation of that system is the antithesis of passivity.

Google published the Underworld Article…Google intended to publish the Underworld Article in the sense that its conduct was active and voluntary. Google intentionally participated in, lent its assistance to, was instrumental in and contributed to the communication of the Underworld Article by identifying, indexing, ranking and hyperlinking it within the search result. It matters not that Google was unaware of the alleged defamatory content of the Underworld Article.

…Google’s attempt to portray itself as passive has an air of unreality. Having taken action to obtain a commercial benefit by creating and operating a search engine that facilitates access to news articles, it cannot deny that it is involved in the publication of those news articles.

Gordon also finds, astonishingly, that as soon as Google received that first takedown request from Defteros’ lawyer — the one, remember, another opinion described as “each matter…was false” — “Google was therefore aware of the defamatory character of the Underworld Article.” (Wait — so as soon as someone tells you something is defamatory — even if no court has agreed! — you’re legally aware that it is defamatory?)

She also — perhaps just to enrage me — finds that Google is legally liable for The Age’s article because Australia’s awful News Media Bargaining Code “underlines the objective common intention of Google and news outlets.” It’s an Aussie bad-idea twofer!

Nothing in Keane or Gordon’s opinions, to my reading at least, does anything to differentiate this specific case from the broader universe of Things That Happen On The Internet. They don’t say anything like: Well, of course, making every search engine liable for the content of every web page ever published would be absurd — but this case is different because [x, y, and z]. They don’t argue that this liability is limited to search engines, as opposed to any random social media user who links to a news story. Gordon, in particular, rejects a string of Google defenses — that “its users had a ‘legitimate’ interest in” the story; the story’s subject “was of ‘considerable public interest’”; that it “was ‘published by a reputable news source’” — completely out of hand.

Luckily, Keane and Gordon were the 2 in a 5–2 decision. And Australian libel and defamation law derives from the notoriously weak-for-publishers British system; I have a hard time imagining a U.S. court finding The Age liable for defamation in this case, much less a search engine that linked to an article.

But this dodged bullet in Australia is a useful reminder of all the people who are eager to “open up” American libel law to make it easier to shut down critical press. It sometimes seems that reining-in-Big-Tech is the one bipartisan issue left in American politics. But if you want to make it easier to sue Big Tech over someone else’s speech, you’ve got to make sure you’re not also making it easier to sue everyone else.

Photo of the High Court of Australia at night by Photoma* used under a Creative Commons license.

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