Google has warned of a "devastating" impact on the internet if a court ruling that the search giant is liable for defamatory material contained in hyperlinked pages is not overturned.
Google warned in a submission to the high court it will be forced to "censor" its search results if a $40,000 defamation damages award to George Defteros, a solicitor who represented Melbourne gangland figures, is allowed to stand.
Defteros successfully sued Google, arguing its publication of search results that included a 2004 article in the Age about his arrest on conspiracy to murder charges - which were later dropped - defamed him.
In 2020, the Victorian supreme court justice Melinda Richards ruled the article had implied that Defteros crossed a line from professional lawyer to confidant and friend to criminal elements. Victoria's court of appeal rejected a bid from Google to overturn the result.
Defteros' lawyers had contacted Google in 2016 asking for the article to be removed but it refused on the basis the Age was a reputable source.
Google's lawyers told the high court the notice contained "false" claims that Defteros had sued the Age in defamation and the Age had agreed to remove it from its website.
Google warned if the court of appeal judgment stands "Google will be liable as the publisher of any matter published on the web to which its search results provide a hyperlink" after a person complains the matter defamed them - "regardless of the quality" of that notice.
Even if many of those accessing the article had a "legitimate interest" in it, which should enable the defence of qualified privilege, the search engine would be required to block search results for everyone or else be held liable for those accessing it out of "idle curiosity", Google said.
The tech company argued that it was not a publisher of the material because "a hyperlink is not, in and of itself, the communication of that to which it links". Websites should only be liable if the hyperlink "actually repeats the defamatory imputation to which it links", Google said.
"The inevitable consequence of leaving the court of appeal's decision undisturbed is that Google will be required to act as censor by excluding any webpage about which complaint is made from its search results, even when, as here, the webpage may be a matter of legitimate interest to the substantial portion of people who search for it and is published by a reputable news source."
Google argued it should be entitled to the "innocent disseminator" defence unless a complainant could explain what the defamatory meanings of the article were and why they could not be defended.
It also asked the high court to reconsider the defence of qualified privilege, arguing it "believed on reasonable grounds" that its users had a legitimate interest in accessing the article.
In 2018, the court gave the green light to defamation claims against search engines in a case brought by Milorad Trkulja against Google for a series of images, autocomplete predictions and results that he alleged were defamatory.
In September last year, the high court ruled in the Dylan Voller case that social media users, including media companies, were liable as publishers for defamatory third-party comments on their social media posts.
In December, the Coalition released draft legislation to counteract the Voller decision by deeming that an Australian person or company with a social media page was not the publisher of third-party comments made by other users.
If passed, the bill would deem the social media company the publisher but would provide them with a defence if they had a complaints procedure to help identify anonymous commenters.
