George Defteros in 2005 (Image: AAP/Joe Mann)

If Australia isn’t careful, Google will just delete us. It has that power. The tech monolith has been having a bad time lately with us, which may or may not have a symbolic attachment to Google’s decision in 2018 to remove the words “don’t be evil” from its corporate code of conduct.

It was bad enough that Treasurer Josh Frydenberg had decided to staple himself to the desires of Rupert Murdoch and announce that Google will be forced to start paying the media companies for the content it hoovers from the internet and repackages as search results. Google has not responded favourably to this idea.

Another blow fell last week in the Supreme Court of Victoria, when a judge handed down a decision that extends the reach of defamation law way further into the search engine’s bowels than had previously been thought possible.

The Melbourne gangland wars of the early ’00s have provided not just endless seasons of Underbelly, but also the fuel for a number of major developments in defamation law. The latest is the case of Melbourne lawyer George Defteros, who was famously arrested back in 2004 and charged with conspiring to murder gang boss Carl Williams. The charges were later dropped, but the sensational media reporting at the time lived on online.

Defteros eventually returned to legal practice and repaired his reputation. In 2016, however, he became concerned when he did a Google search of his name and realised that the search results were still turning up old newspaper reports that painted him as an alleged criminal. A casual reader who did not know that he was later cleared may have drawn some very unfortunate conclusions about his character from what was available via such a search.

Defteros notified Google and asked it to take down the search results, which it did not do. So he sued Google, not the media publishers, for defamation, and last week was awarded $40,000 in damages.

The aspect of this case that will be giving Google serious unhappiness is not the finding that Defteros was defamed, or that Google’s defences failed. It will be the judge’s conclusion about just how far Google’s legal responsibility extends.

Google’s main line of argument has always been that it is not a publisher at all. It provides a service, of gathering up everything on the internet, indexing it in real time and making it dynamically searchable by reference to search terms. Its algorithms order the results on a complex mix of criteria, intended to give the user exactly what they’re looking for even when they don’t know exactly what that is.

The courts have already rubbished that simplistic world view, determining that Google is a publisher of at least its own search results. These aren’t just random words; they incorporate headings and short descriptions or extracts, along with the hyperlink to the source material. They also include images, maps and so on, which can convey the whole of what the link would reveal anyway.

To take a simple example, if a headline of a media story is defamatory of a person, and Google’s search result replicates the headline, then Google is a “secondary” publisher of the defamatory material. The significance of it being secondary is that, unlike the primary publisher, the courts have said Google will not be liable unless it has been put on notice of the publication and failed to take it down. That recognises that its publication processes are, in the first instance, automated.

What had been understood up to now was that Google’s potential liability stopped at what actually appeared on its search results page. It could not be liable for defamatory content that the reader could only get to by clicking on a hyperlink in the results and being taken elsewhere, to the original source (such as a newspaper article archived on the publisher’s website).

The judge in Defteros’ case, however, disagreed, on this logic:

Its provision of a hyperlinked search result is instrumental to the communication of the content of the webpage to the user. The 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. This is exactly what the Google search engine is designed to do, consistent with Google’s mission ‘to organise the world’s information and make it universally accessible and useful’.

The judge went on to support her finding with an impressively tortured analogy:

…a librarian who, instantaneously, fetches a book from the shelf and delivers it to the user, bookmarked at the relevant page. All that is left for the user to do is to open the book and read it.

That’s strange logic, since nobody in the history of defamation law has ever suggested that a librarian could be liable as a publisher of defamatory material for just doing their literal job.

Google will appeal, for sure, and I expect it will win because there is no sensible reason why it should be liable for merely pointing internet users towards things that other people have put online. Evil or not, there’s a limit to that for which even Google should have to carry the can.