Australian court overturns 'Google is a publisher' decision Australia's High Court has overturned the 2020 decision that search results pointing to news stories make Google a publisher. That case concerned a lawyer named George Defteros, who was charged with conspiracy alongside one of his prominent criminal clients. The charges against Defteros were dropped, but for years afterwards …
Defamation is very tricky.
Now, if I now would suggest that all of the Aussies are idiots, would that be defamation? Australian law does have a lot in common with British law. By that standard, should calling the island dwellers(*), west off of the continental European land, all a bunch of daft fuckers be considered defamatory? Or do I need to specify each single person and give each a label of "suck it" before it becomes defamatory?
Imagine a search engine finding this comment...or even the internet archive... Tricky business indeed.
(*)El Reg excluded, of course, being Spanish by name and containing French contributions.
I believe historically your comments regarding the dwellers of this green and pleasant land would have been ignored, shrugged at or (more likely) entirely agreed with.
Defamatory or not, they're not going to cause a level of offence that (again, historically) might have, for instance, led to the invasion and subjugation of your homelands.
At the same time, if you were to impugn the reputation of an individual then yes, that may well provoke an appropriate response.
Google may also link to your derisory view of that individual, but in so doing would be merely pointing out 'over there is something said about someone', which I believe is different to Google saying it about them.
Of course, this being the Internet Australian and UK law are mere nodes within the virtual landscape. That's where life does however get complicated, and is why the US has the 2010 SPEECH Act to protect Americans against the laws of other countries.
I'm not sure any of this forgives the horrific insult you threw at our poor hosts. I refer you to Wesley's polite rejection of Montoya's initial proffering of his word.
> Google may also link to your derisory view of that individual, but in so doing would be merely pointing out 'over there is something said about someone', which I believe is different to Google saying it about them.
I believe the issue isn't that Google is linking to a defamatory article, but that Google chooses (by way of how they design their algorithms) which links to deliver for a search term, and so is choosing to associate the defamatory link with this person.
It is well within Google's power - and I would argue in their interest as a search engine - to remove eg. untrue, out of date, or irrelevant links from their search index (or at least heavily penalise them in the rankings). That they choose not to - until forced by courts - is presumably because they have no meaningful competition as a search engine.
...and I would further point out that what he's asking for isn't outside of Google's current technological capabilities: they've implemented right-to-be-forgotten for GDPR compliance, and they could (if they chose to) provide those same mechanisms to people outside of EU jurisdiction.
That's the angle I'd've been pushing if it was me: Google can take reasonable steps to mitigate harm, so they should take steps to mitigate harm. The fact that they implemented that for another jurisdiction is by-the-bye -- once the infrastructure exists, it's arguably a reasonable step.
With a right to be forgotten there's a legal basis, the scope is defined and it's up to the data subject to be pro-active. In the general case the legal basis is dubious, the scope is far from well defined and these, I think, are good arguments for the search engines not to be pro-active.
Look at the OP's criteria: untrue, out of date or irrelevant.
Who decides on those instances where the truth is disputed? Do you wish to have Google usurp what might reasonably be a court's prerogative?
Who decides when something is out of date? What if you have a web page where you rely to a large extent on search engines bring you traffic? Would you be happy if search engines ignored you because your page was a year old but you believed its content was still current? Who would get to decide whether it was still current or, indeed, what the cut-off period should be?
And who gets to decide on what's irrelevant? That, I find an easy one: it's the person making the search. It would be nice if there were some effective means of communicating that to the search engine but IME the trend over the years has been away from such a facility.
@AC "It is well within Google's power - and I would argue in their interest as a search engine - to remove eg. untrue, out of date, or irrelevant links from their search index"
It may be within Google's power but it is not their job to to decide what we can and cannot search for. A search engine should return what matches the search query.
In this case what was found was true he was charged. When is something out of date a day a year a century? As for irrelevant how does Google know, I just searched for the article because of Australia's High Court decision (Streisand Effect) and found it. It was certainly relevant to my search.
If the article is on the web why should Google not link to it? In this case if the article is defamatory why is it on The Age's website. Should not The Age be required to remove it? If The Age removed it then Google or any other search engine would not be able to find it and link to it.
"If the article is on the web why should Google not link to it?"
Google are not just linking to it. They are duplicating, indexing and monetising from it. Passing the searcher to the relevant website is just a convenient after affect of Google's publishing.
The days of just linking are long gone. Google duplicate webpages in their vast database and re-publish page contents each time a search is performed.
@Phones Sheridan "Google are not just linking to it. They are duplicating, indexing and monetising from it. Passing the searcher to the relevant website is just a convenient after affect of Google's publishing."
The case was about linking to the website hence my question "why should Google not link to it?"
Even if Google are duplicating, indexing etc that does not change the fact that the publisher is The Age an Australian newspaper and website. If the webpage the source of the defamation was removed then Google would not find it to link to or duplicating, indexing etc nor would any other search engine.
Funnily enough I could not find the page in Google's search but I did in Bing as the page is still up.
https://www.theage.com.au/national/underworld-killings-20040323-gdxjnq.html
So explain to me why Google should be responsible for the web page but not the actual publishers of the web page?
"So explain to me why Google should be responsible for the web page but not the actual publishers of the web page?"
I said no such thing.
The original publisher is liable for what they have published. Google are choosing to make a copy, and distribute it even further than the publisher did. Google are now liable too. Google are trying to pull the wool over the courts eyes by pretending all they do is link to websites, they have not done this for a very long time. They rip content en-masse, and produce their own edited copy of it in search results. If you click on it, only then you are sent to the end website.
"It may be within Google's power but it is not their job to to decide what we can and cannot search for. A search engine should return what matches the search query."
I'm sorry, but you are mistaken : Google's job is not returning searches that match a query. It is to sell advertisements, and to harvest your personal information to target those ads more precisely.
Different people will literally see different search results for the same query, because Google tailors those results to match who asks for them.
@AC yes you are right job was the wrong word I was struggling to phrase what I meant.
This is what I meant to convey. "It may be within Google's power but they should not be allowed to decide what we can and cannot search for. A search engine should return what matches the search query."
> A search engine should return what matches the search query.
The days of returning simply what matches the query are long gone. Killed decades ago by keyword spam. Every search engine now necessarily must curate what is shown, filtering out or burying what they have internally (and usually secretly) deemed to be irrelevant.
"It is well within Google's power - and I would argue in their interest as a search engine - to remove eg. untrue, out of date, or irrelevant links from their search index (or at least heavily penalise them in the rankings). That they choose not to - until forced by courts - is presumably because they have no meaningful competition as a search engine."
Well and good. What Google really could be doing is, when an article has been superseded by say, a court ruling overturning something, to embed a reference to the newer news right there within the search result make it unmissable.
If the original judgement held, that would mean all libraries would have to go through their stock ripping pages out of newspapers, go through all their bibliographies ripping pages out, people would be banned from answering the question: do you remember that article last year where X....? 1984 IS NOT AN INSTRUCTION MANUAL!
But we're not talking about the content, we're talking about searching for the content.
There's a teacher in Bath who was falsely accused of murder a couple of decades ago. Should it be impossible to finds reports about that without already knowing where the reports are? Should a search for "bombing in Guildford" not report any matches for bombings in Guildford? The whole point of any search system is that you are searching for things.
Agreed, the newspapers are accountable. That was not at issue.
But if you hold Google accountable do you or do you not also hold the libraries than make newspapers available to the public also accountable? If not, why not? And if you don't hold the libraries accountable why would you hold Google accountable?
One reason is that libraries don't tell you which books to read unless you ask, whereas Google is specifically for providing recommendations based on popularity and relevance metrics. This isn't unreasonable; it's what a search engine is for, after all. But it does bestow some degree of responsibility on them for the output of their algorithm.
However you are asking Google, and Google's search engine is returning the results that it has ranked to match your query. This is, in principle, no different to you asking a librarian for books on a particular subject - where does this search result come from? Either their own personal knowledge (flawed) or an index search of the books that they hold - which depends solely on the books held and the accuracy of the index materials. The library or librarian is not copying or publishing the content, they are not the writers of the content of the books.
In this particular instance regarding the article on a third party website, it is not Google's responsibility if the content is out of date or not been updated. In this case it could be considered a historical record: a person was held in suspicion of an event, which is accurate. That this person was later found not-guilty or guilty is a different matter of record. Perhaps a more responsible website would provide a link on their article page to further articles on the same subject, but that's not Google's responsibility.
I chiefly agree with you, especially about Google not being responsible for other people's content, but there is a difference. If you ask a librarian for books on hornswoggling, they'll direct you to the Hornswoggling section but then let you choose a book for yourself. Typically they won't also recommend specific books on the subject, which is what Google does by putting certain "books" on top.
Now Google can't realistically be expected to know everything and thus fake or outdated content can be prioritised just because it's popular without it being their fault. But they also take money both for their data and to boost the visibility of certain data. It's that extra step that makes them responsible for the validity of their results in a way that a librarian is not responsible for the content of books in the library.
I don't know what your experience with librarians is, but it seems rather limited or idiosyncratic.
My mother was a librarian. My daughter is a librarian who's worked for academic and public libraries, in general and special collections, in archiving, etc. I've interacted with a great many librarians in public, academic, and specialist libraries over the years.
They quite often do provide specific texts in response to queries – not merely specific works, but specific passages. That is, in fact, part of the job description.
Because they are seen as an authority does not make it so - that is just down to ignorance of how technology works. There are many search engines, all have some degree of algorithm to improve search accuracy (otherwise they are useless)
You shouldn't legislate ignorance!
(See also Twitter - not a public square and yes, you can shout Fire in a theatre)
"The nation also retains powers to force tech players to identify users and produce their encrypted messages"
There encrypted message can be produced still encrypted? Or I assume they want them unencrypted, in which case how do you do that with E2E encryption on apps such as Whatsapp, signal etc?
Of course Australia is the country where their PM famously said 'The laws of mathematics are very commendable, but the only law that applies in Australia is the law of Australia' So i am sure they have a way around it, or else they will just arrest and lock up mathematics for breaking AU law.
End to End Encryption (E2E) is true but it's largely marketing fluff as it's the end points that are where things happen.
For example, when a message is typed keywords in it are extracted and these are used for "advertising refinement" - i.e. spamming the user with related adverts in other services. E2E is still true, the messages are encrypted in transit, and there is no central system parsing these messages for keywords. Instead, there's a much more scalable source of computing power to do this that directly scales with the number of users: the users' own devices.
It's perfectly within Facebook's capability to intentionally not provide end to end encryption for messages between users, for example message a user deemed to be "Australian" and it's not enabled. Most users of such systems won't even notice this happen.
As for records of the messages... these are available on the devices themselves, often in online backups of the devices as well, and there's nothing stopping the application itself being configured to make copies of messages available elsewhere.
This post has been deleted by its author
And, frankly, Google would survive just fine if it were immediately and forever cut off from all newspaper content. There's a lot of information, and even more noise, on the Internet, and people still want to be able to find it. Few would stop using Google just because search results didn't include newspaper articles.
Does Google not allow the lawyer to use the google right to be forgotten request process because he's outside the EU or did the lawyer try to get some extra cash from google suing for defamation?
Google apparently does not allow you to file a request unless you're from Europe:
https://www.google.com/webmasters/tools/legal-removal-request?complaint_type=rtbf
Also, from what I understand, even if an EU citizen files a request and the request is accepted, this will only impact search results for queries made within Europe. Australians can still find everything.
Someone who owns a printing press? A broadcast transmitter? Some other means of communication?
Or is "publisher" defined by someone playing an editorial role? Making decisions about what does, and does not appear on the page, on-air, or on-line?
The problem that I have here is that Google, Facebook, Twitter and company all want freedom from responsibility for what they disseminate, yet also want the right to ban, block, filter, and otherwise select the content that is displayed on their web sites.
The problem is that when you choose to say "these things will not be allowed on our web sites" you are by definition also saying "but we're fine with everything else."
Unless, of course, you fall back on the old and equally questionable argument that neither Google staff, not their algorithms, are actually reliable enough to police what they display. In which case the question becomes : is being negligent a valid defense?
Surely there wasn't just one result in the search results.
Wouldn't an average person, even an Australian average person, review several articles linked and quickly discover the lawyer in question was not in fact convicted? Or even prosecuted?
This is called cherry picking. The one "defamatory" voice in a crowd of "100,000" links is not a convincing argument.
"Person not prosecuted for x" doesn't make the news unless its a big controversial case. So it's likely the only results one would find for most dropped cases is the initial "Person arrested/charged with x".
So, given one can't discover that which hasn't been reported, and with human cognitive biases being what they are (jumping to conclusions, "no smoke without fire", etc.), only the association of Person with action x is going to stick.
Sending any court finding, even if it was later reversed, down the memory hole is undesirable. Open information is important. This won't always be perfect, but it's better than the alternative.
Another problem I see is the cost to the search engine provider. It's easy to say Google and Bing have a lot of money so can pay an army of censors but there are other search engines and possible startups who might find it just too hard to manage huge numbers of no go pages across multiple jurisdictions. They are not the source, it's not their page.
If the original publisher was required to place a header on their web article saying that the information is flawed and briefly why that would be good with me. It only needs to be done once in source page. That's would show up in the search result and allows the publisher to keep a record of what they published at the time.
I'm against actual libel, abuse or hate speech but this is a different situation. It's the wrong target.
The Register 
Biting the hand that feeds IT
Copyright. All rights reserved © 1998–2024
