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10 May 2020
In a widely reported decision last week, a court in Melbourne, Australia held that Google defamed someone merely for including in its index three web pages it did not create, including an article from a major newspaper and a Wikipedia article. The plaintiff, George Defteros, is a lawyer who defended gangsters in 2004, and was arrested for murder of one of them. The charges were dropped in 2005. In recent years he has had an uncontroversial legal career. This case is somewhat similar to right to be forgotten cases in Europe. According to the 100 page decision, Defteros sued Google in 2016 about four links, one to a 2004 opinion piece about the arrest in the Age, a Melbourne newspaper, the second to another Age article linked from the first but not directly from Google, the third to a vulgar private site with some comments about him, and the fourth to a Wikipedia article about the Melbourne gang wars which had a footnote that linked to the first Age article. The plaintiff asked Google to remove their three links. For the first one, falsely claimed he had sued the Age and they'd agreed to remove the page. Google said in that case you have to talk to the Age to get them to remove it, but the judge thinks (as best as I can tell) that Google should have removed it anyway based on the false claim that the Age had agreed to remove the article. For the second link, Google agreed to remove it but wrote back asking for the exact page(s) he objected to since most of the site was not about him. That message somehow got lost. They removed the objectionable page when he finally wrote back but the judge thinks Google should have been able to tell which page he objected to and removed it sooner. For the Wikipedia article, Google told him that anyone can edit the article, which appears to have led to an edit war, but the judge thinks Google should have removed it anyway. This is a lousy decision for several reasons. One is that it is technically illiterate, e.g., she writes The 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. The analogy with a reference in a library catalogue, while useful, does not quite capture what occurs when a search engine provides a user with search result that includes a hyperlink to a webpage. A hyperlink is more than simply a reference to where information can be found on the Web. A closer analogy is a librarian who, instantaneously, fetches a book from the shelf and delivers it to the user, bookmarked at the relevant page. In reality a hyperlink is exactly "a reference to where information can be found on the Web" and she confuses the link which is under Google's control, and the user's web browser which is not. There's more confusion along these lines. The Age article was available online since 2004, but the plaintiff didn't complain to Google about it until 2016. The judge found the decade delay made the defamation less severe, but still found for him, which makes it look like she just doesn't like Google. Some reports have misread this decision as treating search engines as publishers of material they link to for the first time, but in Australian law, this is not new. In a 2015 South Australia case Duffy vs. Google, the court found that Google was a publisher and had defamed the plaintiff because they had linked to a defamatory page at Ripoff Report. (The report apparently said the plaintiff was a bad psychic.) There are other cases, cited in the decision, that also treated search engines as publishers. The big problem here is not that it newly treats Google as a publisher, but that this decision provides no way for Google to know what is legal in Australia and what is not, particularly in view of the fact that the second defamatory article wasn't even in the Google search engine. Their only legally safe route now is to take down anything that anyone objects to, no matter how thin or bogus the objection. If a pair decade old articles in a reputable newspaper or a Wikipedia footnote can be defamatory, anything can be.
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