Google has again come into the firing line in a recent defamation case, revealing that Australian courts are prepared to hold digital platforms to task. As the power and influence of digital platforms grows, so has the controversy around just how liable Google, Twitter, Facebook and other online intermediaries should be for the content they share. In this piece, advertising and media legal experts Heidi Bruce, principal, and Winnie Lok, solicitor, of Anisimoff Legal, join B&T to discuss these developments and the broader media impact.
Pressure has been mounting in Australia for digital platforms to be held to higher standards of accountability as shown by the ACCC Digital Platforms Inquiry and the regulatory outcomes of that Inquiry which are now unfolding. This issue has hit the headlines in a big way with the US President Trump recently commencing a war on Twitter and pushing for stronger regulation of Twitter and other social media platforms.
Google was recently ordered by the High Court to pay $40,000 in damages to Melbourne lawyer George Defteros for publishing results that associated him with gangland figures and defamed him.
Bruce told B&T: “The Google and Defteros decision is controversial as it shows this legal trend in Australia, towards stronger liability for digital platforms. The court had to consider whether Google was simply an innocent messenger, or whether it was liable as a publisher.
“The High Court decided here that Google is liable. There is a push towards evening up the balance between digital platforms on the one hand and traditional publishers like news outlets and broadcasters on the other. Our laws are out of step with the influence and reach of these technologies, but our courts are willing to stretch them to hold these parties accountable.”
Lok added: “The case stretches beyond the social media giants, it has broader impacts for other online providers, including businesses that operate forums, online tools or comparison services, or Facebook pages. They can’t simply continue to view themselves as if they are innocent bystanders.”
In the early 2000s, Defteros ran a criminal law firm in Melbourne whose clients included many prominent gangland figures. In 2004, Defteros was charged with conspiracy to murder Carl Williams, his father and bodyguard. Defteros denied the charges and the charges were withdrawn.
In 2016, Defteros became aware that when searching his name on Google, the search results produced an article published by The Age in 2004 in relation to his charges, headed ‘Underworld loses valued friend at court’.
Defteros notified Google and requested that the article be removed from the search results. After Google’s failure to remove the article, Defteros sued Google for defamation, as the search results would lead readers to think that he was more than just a lawyer, he had become a confidant and friend of criminals.
The big issue in the Defteros case was whether Google could be liable as a publisher for the content that appears in its search results. At first glance, this may seem outlandish. How could Google be responsible for automated results of third-party content that depend on keywords entered by users?
The court found Google was liable for the publication by way of omission. Google’s failure to remove the article after being notified by Defteros meant that Google was responsible for the continued publication of the defamatory content. The court importantly held that, even though Google’s search engine was fully automated, Google was still considered a “publisher” on the basis that with human intervention, objectionable content could be identified and removed.
Google tried to rely on the defence of ‘innocent dissemination’ under section 32 of Defamation Act 2005 (Vic), that as a secondary publisher exercising reasonable care, they did not or would not have known that the material was defamatory. However, the court found that innocent dissemination was not available to Google as they were aware of the material after being notified by Defteros.
The court found that the defence had lapsed seven days after Google had been put on notice. Lok says, “So in a nutshell, as Google had the ability to remove content, and it was aware of the defamation and did nothing, it was liable. They were no longer an ‘innocent messenger’. You could say that once Google is put on notice it has at the most, 7 days to remove the content before it loses its defence.”
This is not Google’s first brush with a defamation lawsuit. In a similar scenario in 2016, Milorad Trkulja was successful in claiming that Google was responsible for search results and auto-completions that were defamatory as it linked Trkulja’s name and image to Melbourne’s criminal underworld. The High Court ruled that Google’s participation in showing the results to users made it the publisher.
Google has also been sued by the ACCC for misleading or deceptive conduct, for displaying sponsored ads that were generated through its AdWords by advertisers in its search results. The High Court here decided that Google was not liable. In publishing the sponsored ads, Google was simply carrying out the advertiser’s instructions, and Google was not endorsing the information displayed in the advertisement. The Court considered that consumers would understand that the ‘sponsored’ links are ads that have been paid for by businesses to appear on search results pages.
Google successfully relied here on an “innocent messenger” defence, in Section 251 of the Australian Consumer Law. This defence provides that a party is not liable for breaching the Australian Consumer Law if they a) publish or arrange for the publication of advertisements; b) received the advertisement for publication in the ordinary course of business; and c) did not know or had no reason to suspect that the publication of the advertisement would breach the Australian Consumer Law.
Bruce commented: “Unlike in Defteros, the ‘sponsored links’ case was favourable for Google and digital platforms. However, if Google had been notified that the sponsored ads contained misleading claims and failed to remove it, Google may very well have been liable. The current thinking of the courts as we have now seen is, once Google knows about a breach and does nothing, it is no longer an innocent messenger. This could leave digital platforms in uncomfortable situations where they receive complaints on content that look fine on the surface, but they take a risk by turning a blind eye.”
The Defteros case has broader implications on digital platforms, but also operators of online forums, Facebook pages or review platforms. This is strengthened by a very recent NSW Court of Appeals decision, holding media companies (ie Fairfax Media, Nationwide News and Australian News Channel), liable for allegedly defamatory comments made on their Facebook pages. These comments were written by third party users, under stories on the media companies’ Facebook pages. They were not pre-vetted. However as they allowed people to post comments, and had the means to delete posts when they became aware they were defamatory, they were liable as a publisher.
These cases show that a business does not need to be the original publisher to be liable for defamation law. Even if the content is written by a third party user on a Facebook page, or shared on Facebook, or comes up on a Google search, an online business may not be merely an innocent messenger, free from liability. Once it is notified that material is potentially defamatory or misleading, it then risks being liable if it does nothing. The Australian Government has flagged a major overhaul to defamation laws, and also set up a road map for changes to the regulation of digital platforms.
Bruce said: “We are seeing a move towards stronger liability for digital platforms. The regulators and the courts are seeing that the freedoms enjoyed by digital platforms in their formative years are now out of date. We still have traditional news publishers and broadcasters very heavily regulated, but a much lighter set of rules for digital platforms. In Australia the future looks to be heading towards evening up that balance.”
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