In the decision of Defteros v Google Inc LLC, the Supreme Court of Victoria found in favour of Google, asserting that an internet search engine is not necessarily a publisher of material produced in a search.
The applicant to the proceedings, George Defteros, is the plaintiff in a defamation proceeding currently before the courts, whilst Google, the respondent, is the defendant to that proceeding. In his amended statement of claim, Defteros contends that in 2016, Google published online material that was of a defamatory nature. Specifically, that material is alleged to consist of;
- A search result returned from the entry of certain search parameters into Google’s search function; and
- An underlying webpage, accessed via a publication that presented as a result of using Google’s search engine.
In its defence, Google denied publishing the web matter. In doing so, it submitted that it is not the publisher of results that are returned to a user of its search engine, that it is not a publisher of any third-party documents hyperlinked to the result of a search using its search engine; and that it is not the publisher of any third-party document to which a user of the search engine may navigate as a result of performing a search using its search engine.
In May, Defteros filed a summons seeking to strike out various paragraphs of Google’s defence pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015, to the extent that those paragraphs asserted that Google was not a publisher of the results that were returned to a user of Google, and that it was not a publisher of any third-party documents connected to any such search result. However, that application was later dismissed by Macaulay J.
Defteros subsequently brought this action, seeking leave to appeal. In doing so, he claimed that the primary judge ‘erred in narrowly and therefore wrongly construing r 23.02’ when he concluded that ‘a pleading was only to be struck out under the rule where there is some defect in the pleading’ and that ‘essentially, the power to be exercised under r 23.02 concerned the form of a pleading rather than the legal or factual merit or substance of what is pleaded.’
However, the court held that there was no substance to either of Defteros’ proposed grounds for appeal. In doing so, it contended that the issue of being a publisher is still a question of both law and fact. Moreover, it held that the primary judge was not bound by the decision in Duffy, as at no point did that case articulate any relevant principle of law that required the judge to strike out Google’s plea that it was not a publisher. Lastly it held that there was no rule of law preventing Google from leading fresh evidence in a separate trial, as it intended to do so here.
Ultimately, the court held that the primary judge’s determination that he was not bound by the Full Court’s decision in Duffy to strike out any parts of Google’s defence was correct.
