Last month the High Court confirmed that publishing hyperlinks to defamatory material which is written by others will generally not amount to publication (or republication) of the defamatory material.
The Court has warned against applying that as a general rule and made clear that the content of the publication needs to be analysed beforehand.
Whilst the decision specifically considers the provision of hyperlinks by a search engine, such as Google, it applies equally to anyone who provides a hyperlink to material published elsewhere on the internet.
Using hyperlinks to refer people to websites and material published by third parties on the internet raises a couple of interesting (and often asked) legal questions:
- Does providing a hyperlink amount to copying and will I infringe copyright by referring to or linking the work/article?
- Will I be liable for defamation if the linked publication is defamatory?
The Court considered those questions in Google LLC v Defteros  HCA 27 which involved an article that originally appeared in The Age newspaper online in 2004. The article had ‘resurfaced’ so that when Mr Defteros typed his name into a Google search in 2016, the results displayed a snippet of the original Age article with a hyperlink to the full text.
Both the Supreme Court and Court of Appeal in Victoria found in favour of Mr Defteros, agreeing that Google was a republisher of the article and, by providing a hyperlink, was liable for defamation and ordered to pay $40,000 in damages. The High Court (by a 5:2 majority) found in favour of Google and overturned the Victorian Supreme Court decision. The High Court accepted that the generation of search results (which revealed the hyperlink when searching for Mr Defteros) had no connection to the publication of the article, as the hyperlinks were automatically created as part of a technical mechanism and were not “approved or encouraged” by Google.
Dissenting views were expressed by Justices Keane and Gordon who questioned the “passive” nature of Google’s involvement. Did Google simply assist the user in finding the searched-for information, or did Google “direct the attention of a person to the webpage of another and assist them in accessing it”, thus creating a scenario where Google had republished the article, resulting in its liability for defamation?
The facts in that case led the Court to find that Google did not promote or participate in the step which a user needed to take in clicking on a hyperlink to access the (defamatory) publication. However, the Court also drew a distinction between organic search results and sponsored links, so that the position may be different if a republisher refers to the material in paid advertising or if there is a stronger commercial link between the original content and its republication.
What that means is a closer analysis of the context in which material is made available or referred to may have to be undertaken by anyone (including search engines) promoting internet sites by hyperlinks.
Sponsored hyperlinks may be perceived as providing greater encouragement to access offending material which could lead to the position that ‘the provision of the hyperlink might combine with other factors to amount to participation in that process of publication’ [per Gaegler J – Google LLC v Defteros  HCA 27, 66]. This is more likely to occur where the republication endorses or adopts the original publication, rather than merely communicating ‘something that exists, but do not by themselves communicate its content’ [per Kiefel CJ & Gleeson J – Google LLC v Defteros  HCA 27, 150].
Whilst the decision provides a clear restatement of what was largely accepted to be existing law, it is another decision that adds to the recent clarification of the (High) Court’s position relating to (defamatory) material published online and the circumstances in which publication will be found to have occurred.
All organisations should be undertaking a review of their policies, particularly relating to the use of social media, publication, republication (including hosting forums and calling for response), monitoring, and maintenance of websites and social media pages. That should include establishing rules relating to commenting and/or participating in online forums, as well as encouraging or facilitating others to do so in light of those recent decisions.