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Law and Policy of Misleading Conduct and Product Liability

Table of Contents

Introduction.

Background/ Case Summary.

Case Analysis.

Implications of the decision and Possible Reforms.

Conclusion.

Bibliography.

Introduction to Defteros v Google LLC

A case note or analysis is a deducted review of the actual legal judgment of a case. It includes the critical appreciation of the legal principles involved in the case to develop a new law or to update the existing one. A case note is said to be a commentary on the decision ruled out by the court in a particular case. It may hold a point of discussion on the same whether the decision was according to the legal policy or needed some further review. The case note is mostly done in cases that involve the legal principles associated with an under-developed field of law or more precisely in a field of law where there is still a necessary scope for upgrading the principles. The objective of writing a case note is to critically analyze whether the decision given by the court contains the foundation of a ‘good law’ or an opportunity for the critics to discuss upon the principles used in the case as the grounds for developing an existing law or creating a new law. The case chosen here for the analysis is George Defteros v. Google LLC & Google Australia Pty Ltd since it involves the legal principles associated to the functioning of the search engine providers for the information which is being published through them resulting in direct defamation or defamatory statements made by authors and the same being published by the search engine providers.

Background/ Case Summary

George Defteros is a Melbourne based solicitor who has specialization in the field of practicing Criminal Law. He has been associated with the field of law since 1984. He has been associated with the Gangs of Melbourne and his major clients were the members of the Melbourne Gangs namely Mario Condello and Dominic ‘Mick’ Gato. The incident happened in the year 2004 when Mr. Defteros and Mr. Condello were charged by the police in a conspiracy to murder and incitement to murder a fellow gang man Carl Williams, his father George Williams along with his bodyguard. However, he was granted bail by the magistrate at the Melbourne court, and the charges regarding the murders and incitement to murder were also withdrawn around a year later by the Director of Public Prosecutions and Mr. Defteros was set free from the case. A separate trial was to be conducted against Mr. Condello but he was murdered in February 2006 just a day before his trial was to begin. After the surrender of his practice certificate on 20 June 2004, he did not practice for an approximate period of three years but in September 2007 he was granted a practicing certificate again on his application for the same and he also regained his certification as an Accredited Criminal Law Specialist and started reconstructing his practice and in 7 years i.e. by 2014 he had settled himself as one of the most successful advocates in the field of criminal law with an office in Prahran and a professional staff of seven employees along with a turnover of $2.5 million in fees.

Due to his association with the Melbourne gangland killings in the year 2004, 2005, and his association in the charges against the killing of Carl Williams, his father, and his bodyguard, Mr. Defteros’ name was highly reported in the media especially in ‘The Age’ newspaper. The Age newspaper has a website on which all the published articles were available. Apart from the published articles in ‘The Age’ in 2004, there was a separate article published on Wikipedia with two images of Mr. Defteros which has been the major issue of this present case of Defteros v Google.[1]

Mr. Defteros originally had a case against Google Inc. and Google Australia where he claimed that since he was living in Australia and the search results were published by Google Australia, he said that Google Australia is also a party in the search engine functioning and shall be held liable for causing defamation to him under the purposes of defamation law. However, the judge denied his request saying that the search results are being published before the public by Google Inc. and Google Australia has no control over the search engine operations thus isolating Google Australia from the case. Hence, in the year 2016, Mr. Defteros filed a case against Google for the two publications and after further knowledge of four more publications filed a second case against Google in 2017. The published Wikipedia article, the two articles published by ‘The Age’ newspaper in 2004 and the images of Mr. Defteros are the subject of the proceedings.

Claims made by Mr. Defteros in the proceedings against Google in the year 2016 and 17 consisted of several imputations which cause defamation to his name such as he was a confident and friend of the gangland members.

Reverted the course of Justice by creating false witnesses and statements to prevent his friend. He was a standover man who achieved outcomes for clients by using thread and violence instead of advocacy. He was not just Council for The Underworld figures but also criminal associate to them. He was the mastermind behind the Killing of Carl Williams and his father and his Bodyguard. Also that he is not eligible to be called a lawyer and he was a strong criminal associate of the Melbourne underworld and at last that he was an inseparable criminal associate of the underworld group ‘The Carlton Crew’.

Against these allegations made by Mr. Defteros, the counsel of Google argued that they were not the actual publishers of the defamatory content published and also that these are the newspaper reporting which has caused the defamation to Defteros hence, Google cannot be held a party of this case of defamation to Mr. Defteros. Along with this Google also raised several defenses including defense of innocent dissemination, defense of qualified privilege, and defense of triviality.

The basic issue before the court was regarding Google as the publisher of the defamatory material published which was referred to, in the search results under the hyperlink content. Additionally, whether Google was eligible to avail of the defenses provided under the defamation law. Also considering the major issue of the publication, the court decided that Google was not a ‘passive tool’[2] but, a human design that has been created to provide related and identified content against the search queries made by the users on the search engine platform. On the issue of information regarding any defamatory material on Google, it becomes the liability to cross-check the objectionable content and remove it from the search results within the specified time-period provided by the aggrieved party which was one week in this case and in the failure of removing the objectionable content, Google can be held as the publisher of the search results which a provided to the user against any search query. The reason provided behind this functioning was that Google is an automatic tool that provides search results based on the queries made by the users. However, it is subject to human intervention, therefore, Google can act by removing the disputed defamatory content from the internet. The defense was made by Google against this issue which was ultimately rejected.

Against this, the court held that Google was the authority to publish the third-party web pages in the form of hyperlinks in the Google search results provided to a user against a search query made by them. These hyperlinks hold the foundation of the relationship between the contents of the web pages and Google up to such a substantial degree that makes Google the publisher of the web pages. Therefore, Google cannot claim any defenses stating the excuse and the same was rejected by the court because Google is providing its services under its commercial interest and not as a matter of legal, moral, or any social duty against the society, thus, holding the defense of qualified privilege as void.

On the defense taken by Google regarding the innocent dissemination in circumstances, the court said that the same holds rejected since Google was informed to remove the objectionable content by the complainant in a specified period of seven days to which Google denied the removal of the content from its search results, therefore, causing failure to utilize the defense of innocent dissemination in circumstances.

Deciding over the principle of triviality the court said that Google cannot take the excuse of the principle of triviality because the content published on Google is available to the public at large and hence can cause severe damage to the reputation of Mr. Defteros as a solicitor.

Additionally, the court also decided that the search engine providers shall be very cautious while providing suggestions under the hyperlinks against any content that is published externally through any third party web page. Also, in addition to that, if in case any complaint or objection arises against the online content published by Google through hyperlinks, those objections shall be taken seriously and must be resolved accordingly with the established policy of the search engine provider. It has also to be kept in mind that, although the search engine provider is not the primary publisher of the content but a secondary publisher and the defense of innocence dissemination will not be effective after the reasonable period provided by the complainant has been passed. Also that the decision of this case will not only affect the individuals but the businesses also because employees can be considered equally responsible for the use of IT services and policies regarding the use of hyperlinks redirecting to the content it which ought to or not to be defamatory for the user.

Case Analysis

The case analysis of the case after Defteros v Google,[3] holds the basic issue of publication which raises a question as to consider who the publisher of the content on the internet. The actual publisher of the content is the search engine provider which makes the content available for the users against the search query done by them. As per the defamation, law Publication is a bilateral act that is said to occur when any content is published on the internet and is made available to a reader viewer or listener. Also, it is available in such a comprehensive form that is easy to be understood by the user. The court also distinguished that the web pages which were redirected through the hyperlinks provided in the search results of Google comprised a few lines paragraphs known as snippets which provide the details of the content present in the hyperlink. The question before the court was to decide whether the hyperlinks and snippets qualify the eligibility under publication and the answer to this question was yes, they do. The court decided that Google was the publisher of all the content available on it because it published the content through the hyperlinks which were displayed in the Google search results. The resolution of the publication issue by the court against the liability of Google was a necessary step to be taken against which Google succeed and some differences however field and the others. The court held Google liable to pay $40,000 to Mr. Defteros.

While deciding the case the court focused on the decisions based on the principles decided by McDonald J in Trkulja v Google Inc,[4] by the court of appeal in Google LLC v Trkulja (Trkulja (CA)), by Blue J in Duffy v Google Inc,[5] and by Kourakis CJ in Google Inc v Duffy (Duffy (FC)),[6] In which the court is already decided that the search engine operators could be held liable for the search results which appear to be defamatory to any person and the failure of the search engine provider in the removal of the objectionable content from the search results. In the case of Trkulja v Google, the defense faced by Google was that the search results themselves could not defame a person because search results are ware hyperlinks which connect the user to the content published on third party websites to which the high court of Australia was agreed saying that every content available in the search results of the search engine provider can cause defamation against a person since it contains text and images which can be viewed read or understood by the user. However, in the case of Duffy(FC), the South Australian Full Court decided that the search results which are extracted content from the underlying web pages where snippet during a process of creating hyperlinks for the web pages can hold Google liable for them. Justice Hinton, in this case, considered that the deep relationship of the hyperlink taken with the snippet is more than a reference. It appears as the willingness on Google's part to transport the enticed searcher immediately to the relevant webpage for more information. To publish the web page to those people who have read the snippet want more information. The role of the snippet was considered to be of high importance in all cases.

However, Richards J. in Defteros,[7] specified that the ground for denying the submission on behalf of Google stands for two reasons, the first being the limit of the established principle as to publication based on policy consideration of Google is not applicable in this court. Secondly, the argument made by the counsel of Google presents two distinct issues regarding publication and its meaning.

Moving over to the point of whether there is a need for new defenses for search engine providers, it was provided by Richards J. that, the only difference that could be provided to the search engine providers could be the consideration of ‘public interest’. However, along with that, they have to keep their checks and review process on all the complaints that have been raised against any objectionable content published in the search results by them against the search query is made by the user. Also, it was decided by the Richards J that Google's policy of encouraging the affected person or complainant to deal directly with the third party for the original author of content published on the internet shall be changed. However, the reason provided by Google over this policy was a rationale that, Google does not control the web or the internet all the content on it but only provides the reference to the content available. The maximum that Google can do on its behalf is the removal of the webpage from its surface. However, the content would still be available on the internet, therefore, making ‘The Age’ website culprit for the publication of the defamatory content and not Google. Richard J[8] also agreed and said that Google's ‘Reputable Source Defamation Push Back Policy’ is a reasonable policy given in the business environment in which Google operates and it is reasonable for Google to rely upon the sources which are considered as reputable to determine the authenticity of the content.

The case has impacted the concept of defamation in Australia in a completely different scenario. It has made the publication of the objectionable content, a necessary ground for defamation. However, it is also additionally required that finding of the facts is not important for the subsequent decisions to be taken by the court. The case also raised the question of Google’s business model along with that of the other internet search engine providers such as Yahoo! And Bing and it has been decided that how the disputes related to intermediate internet intermediaries shall be resolved. That decision given by the court, in this case, has created broader implications on Google and other search engines applicable both in Australia and internationally. In Australia where search engine operator is found liable for the publication of defamatory content within the web pages of the search engine provider, is considered while deciding the cases related to online published defamatory content. In this case, it was also decided that Google was not liable for the publication of defamatory content by default, since it was already published on the internet by the third party and Google does not control the internet but utilizes it is a medium to provide information to the users. However, once the notice period is provided by the defamed person, the liability of not taking any action on the complaint lies upon the search engine provider that has made Google liable for any Publication made even by the third party on Google. There is a defences of innocent dissemination provided under the Australian defamation law which provides that when informed for notified about any objectionable content the search engine operator must assess and respond against the complaint with a reasonable period or it will be held legally responsible for the publications made available through the search results. The said reasonable time, in this case, was seven days which was provided by Mr. Defteros to Google for the removal of the objectionable content. Also, as per the decision given by the court in this case, it shall be a persuasive precedent requiring the urgency to respond quickly to the complaints arising out of objectionable content resulting in defamation.

The court also imposed obligations on the search engine operators with the need to ensure that an overview and cross-check against all the third party websites shall be made in consideration of any defamatory content available to the hyperlinks in the search results. The significance of this decision by the court is not just limited to the search engine providers but also serves as a guide for the steps to be taken by a person against whom any objectionable content has been published on either Google or any third party website. Moreover, the liability of search engine operators in Australia automatically increases to a higher extent because of the absence of the ‘right to be forgotten’ hence, making it easier for the individuals to get the online defamatory content removed easily from the internet.

Implications of The Decision and Possible Reforms

The Law of defamation in Australia is not an enactment but is a collection of several components that hold a large part of it from the common law which is being inherited from England and developed by the Australian judiciary over the decades.[9] There are several existing defamation acts in all the states and territories of Australia.[10] However, according to Rolph D. (2008),[11] it was held that a uniform defamation law has to be enacted apart from the common law heritage that is then modified by the judiciary over time. In the year 2005, a bill,[12] comprising of model definition provisions was drafted post agreement of the attorneys general of the states and territories bringing the concept of the law of defamation. The objective of the bill was to enact the model provisions keeping the civil liabilities for defamation under the common law and the abolition of the Distinction at common law between cylinder and label also focusing on the creation of a statutory cap on the number of damages for the non-economic losses that may be awarded in the civil proceedings for defamation. Provisions to facilitate the resolution of civil disputes about the publication of defamatory matter without litigation and the evolution of punitive damages in civil proceedings for defamation considering the establishment of truth as a sole defense a civil action for defamation and the imposition of the limitation period of one-year twin extension in Limited circumstances for up to three years following Publication also the enactment of various provisions dealing with criminal defamation.

The law of defamation after the case of Defteros v Google[13] has been updated with various highlights which include a series of essentials that have to be present to cause defamation to a person and also a new set of defenses available to prevent the publisher from exploitation. The media especially which is considered the victim of defamation has been provided relief by these new defenses which are mainly Public Interest defense. The Other relief provided to the publisher is by the capping of the damages to be paid in any case of nasty reputational damage because of defamation also a new approach towards the limitation period about the content has been made to make sure removal of the content and not letting it posted online for years.

Like in the case of Geoffrey Rush v the publisher of The Daily Telegraph,[14] the complainant was awarded almost Australian Dollar 2.9 million does making in the traditional media a victim against the defamation weapon.

Although what shall be done in the cases where people are not that popular but have suffered damages due to the publications made by the search engine providers or the media. In that case inverted, ‘serious harm’ has to be presented to file a case against a publisher. Also, the judges have been encouraged to stop defamation cases that lack the content of ‘serious harm’ as soon as possible. To create a modern definition law for the sake of the public there has to be a quick and cheap mechanism that would resolve the defamation cases at a faster rate so that the response and the effectiveness of the law can be tested and the same can be made sure.

The court while discussing the legal principles involved in a publication made it clear after reviewing the authorities and their views provided in the cases of TrKulja(HC),[15] and Duffy,[16] that defamation is a tort of strict liability and the reputation of the plaintiff doesn't need to be been enjoyed by the defendant intentionally. Dependent in such a case can only be held not liable when it is intended to communicate the relevant content to the person being affected. In this case, Mr. Defteros accepted the fact that Google cannot be held liable for the publication of the content notice that the objectionable content was being provided in the search results of Google to the users in the form of hyperlinks but after the objection raised by the plaintiff Google should have acted responsibly and shall have removed the objectionable content from the search results Google was not the primary publisher but it was the secondary or subordinate publisher of the content. Richards J[17] found that Google can be held as the publisher of the content displayed in the search results against the search query entered by the user after it is the notice of the particular search result on which the objection has already been raised by the affected person. It is not necessary that the search results provided by Google main comprise of web pages or images or any news related to the person but it becomes a liability of the search engine provided to at least identify the data provided by the third party websites through the searches of the search engine operator. Also in the case of Crookes versus Newton,[18] it was held by the supreme court of Canada that the nature and role of the hyperlink are dependable on the relationship with the content to which they refer. The Internet alone cannot provide any access to information without the hyperlinks therefore the key source of information provided on the internet is the hyperlink.

Conclusion on Defteros v Google LLC

The case Defteros v Google LLC has impacted the existing defamation laws in the states and territories of Australia in a completely different scenario making it necessary for the enactment of uniform defamation law that applies to the whole of Australia. The effect of the case was decided over a variety of factors that needs to be amended such as the limitation period the role of judge and jury the defenses available and the remedies to be provided to the persons involved in this stop this also served as the grounds of the existing defamation laws. Richards J has played a significant role in deciding the case and has also evolved the concept and the overview of the defenses and the remedies available in the cases relating to defamation.

Bibliography for Defteros v Google LLC

A Articles/Books/Reports

Carrett J. (2020) Australia’s ‘outdated’ defamation laws are changing - but there’s no ‘revolution’ yet. [Online]. Available at https://theconversation.com/australias-outdated-defamation-laws-are-changing-but-theres-no-revolution-yet-143532

Rolph, D., (2008). Uniform at Last? An Overview of Uniform, National Defamation Laws. [Online]. Precedent, Vol. 76, pp. 35-38, 2006, Sydney Law School Research Paper No. 08/141, Available at SSRN: https://ssrn.com/abstract=1307421

B Cases

Crookes v Newton [2011] 3 SCR 269

Defteros v Google LLC [2020] VSC 219

Duffy v Google LLC (2015) 125 SASR 437

Google LLC v Duffy (2017) 129 SASR 304

Trkulja v Google LLC (2016) 342 ALR 504

Trkulja v Google LLC (2018) 263 CLR 149

Trkulja v Google LLC [2015] VSC 635, [23]

C Legislation

Civil Law (Wrongs) Act 2002 (ACT)

Defamation Act 2005 (NSW)

Defamation Act 2005 (Qld)

Defamation Act 2005 (SA)

Defamation Act 2005 (Tas)

Defamation Act 2005 (Vic)

Defamation Act 2005 (WA)

Defamation Act 2006 (NT)

Model Defamation Provisions 2005

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