"[Google] had not participated in the (..) disseminating of the defamatory matter" is an _interesting_ take. Many websites rely on search engines for a significant part of their traffic, and the fact that people pay for ads in search results underwrites this. If Google plays a significant part in getting content to people's eyeballs, how do they not "participate in disseminating"?
Furthermore, the judgement makes it sound like Google's algorithm is fully neutral, that the results are the outcome of a simple mathematical algorithm. But Google is well-known to alter search result by manually boosting or banning websites. Given that Google has editorial control over the results, does the continued showing of misleading search results not count as defamation? How is it not the same as a newspaper continuing to call someone an "accused murderer" years after they have been acquitted?
In my opinion, Google gets to eat its cake and have it: full control over the content and none of the responsibility.
Seems like a dodged bullet. There is little to no constitutional protection for free speech in Australia and defamation is routinely employed successfully in fairly speculative situations (for example, politicians, as public figures, suing journalists they don't like). Every time a question comes up like this it is genuinely an unknown what the court will do and no clear precedent suggesting they weigh potential broad impact of decisions heavily in their judgement.
So this could easily have come down the other way and we could have a precedent suggesting potential liability for literally anybody who links to anything.
As an Australian, I'm actually a little bit surprised that, seemingly, common sense has prevailed over what appeared to be the preference of the politicians.
Take a look at our (Australian) anti-spam rules and how they were exploited by Clive Palmer, Craig Kelly and the United Australia Party to spam a huge percentage of Australian mobile numbers, for months[1].
Because the messages were from a political party, they were exempt from anti-spam rules, and despite the protests from people sick of getting the messages - there was no requirement for any ability to unsubscribe.
I don't know that it's that simple. The point that Australia's defamation laws probably allow for overreach is hard to argue against, but at the same time, I don't think we should give companies free rein. Search engine companies undeniably influence what they present; in some cases, through manual interference. How much would they have to interfere before they could be considered a publisher? Arguably, there should be some system of legal accountability here, but the law is behind the times, as it always is (especially in Australia)
yes, it's depressing ... perhaps we just don't hear about the "common sense" ones but perception wise it feels like common sense is the exception rather than the rule for sure.
As another Australian, I'm unclear why you think politicians preferred the opposite outcome.
The TL;DR of the case is that a lawyer involved in some criminal gang cases sued Google because the reports by newspapers about him were available in Google search results.
I don't think many Australian politicians would take the side of the lawyer in this case.
Free speech does not seem to be enjoying much love from the population either.
In the whole West, people who call themselves liberals demand further and further restrictions on speech in the name of niceness (no hate!) and accuracy (no misinformation!)
It is a road to hell paved with good intentions as usual, but we will have to relive the anti-utopia again to understand why free speech is valuable.
That seems entirely reasonable. They were publishing the comments on their website with the story and the comments were defamatory. Why shouldn't they be found liable?
Free speech shouldn't mean someone is free from the consequences of that speech.
Hyperlinking can still be constrained by other laws. So, this has high specificity as I see it. The specific constraints applied in the suit which led to the High Court have been found not to apply.
I don't have a list of what do, I just hypothesise there could be other constraints. Private agreements, CSAM laws, IPR laws, which go to why you cannot provide a hyperlink.
Indeed: “To accept that the provision of a hyperlink is not enough to amount to participation in the process of publication which is completed when a third party clicks on the hyperlink so as to view the webpage, however, is not to deny that the provision of a hyperlink might combine with other factors to amount to participation in that process of publication of matter on that other webpage. […]” [¶66]
Given how the HCA has taken so many traditional (archaic) views on media publication recently (see Voller 2020) I wonder to what degree this a political decision. The respondent is a very unsavoury figure in the legal world. Any lawyers able to interpret how narrow or broad the ruling is?
The Australian High Court is generally not partisan or political. The Justices are not generally predictable in their rulings, unlike in the US. So, if you're right that it's an archaeic view, I wouldn't put that down to politics.
An example is a recent hot button issue where the Court ruled Aboriginal Australians could not be classified as "aliens" under the Constitution (Love v Commonwealth). The decision was condemned by conservative media as judicial activism. The majority comprised Bell, Gordon, Nettle and Edelman JJ, the latter 3 were conservative government appointments.
I found the ruling to be pretty cognizant of the nature of the web, drawing apt analogies with librarians looking up and leaving post-it notes on books while following references, and (importantly) noting where the analogy breaks down in places relevant to the decision at hand.
Even the dissent shows cluefulness, pointing out that “although the Google search engine system operates in a "fully automated" manner 140 , the systems of which it is comprised are designed by humans and operate as they are intended to operate” [¶108].
“Here, Google was fixed with knowledge that Mr Defteros claimed the material was defamatory when a solicitor [...] lodged a removal request on Google's website for the Underworld Article to be removed from Google's search results. Google was provided with the Uniform Resource Locator ("URL"). The removal request form was provided and generated by Google. [...] Google was therefore aware of the defamatory character of the Underworld Article a reasonable time after having been given notice and the defence of innocent dissemination cannot be established.” [¶113]
“Contrary to Google's submission, its vast repository of information obtained and organised by the web crawler and indexing programs is not "an undifferentiated mass until a search is requested". And in crawling and indexing, news articles are a particular, if not primary, focus. A webpage which appears to be a news article, importantly, is separately crawled – identified – and indexed as such a page 181 . "Important" webpages are crawled more often 182 . The web crawler program and the ranking algorithm's focus on "important" webpages, the crawling of such pages for updated data more frequently, and the PageRank and freshness clues used by the ranking algorithm then combine to produce search results in response to a search query 183.
The design of the Google search engine system as a whole is intended to, and does, affect the results that are produced when a user enters a particular search query. And it is for that reason that, in seeking protection for its search results under the First Amendment to the Constitution of the United States, Google has itself successfully argued that the design of its search engine system involves the exercise of evaluative judgment 184.” [¶123-124]
Essentially saying that “hey, you said (and the US supreme court agreed) your results are protected as free speech because you're exercising judgement in preparing them, so why should we agree that you're not exercising judgement in preparing them now?”
It's a defamation case and you will note the main question was whether or not publication occurred. The rules governing dissemination of copyrighted material are completely different.
if providing a link by google to an article is not publishing then why do you think providing e.g., a hyperlink to a magnet link by a torrent search engine becomes publishing of a copyrighted material?
(torrent search engine shows links to a link to a "link" to a material)
So long as they didn't encourage discussion of the contents of the torrent (paragraph 33) nor enticed the user to choose that torrent over another one (paragraph 51). Or anything else considered in the decision (I'm only a quarter of the way through reading it :p)
It is an interesting point though, it's not publishing but in my limited understand it just means that Google isn't bound by links that it has on its pages.
As much as I'd like torrents to be more tolerated, there is a difference in that the torrent sites contain the .torrent files which contains all the necessary info to download files. ie, They're supplying more than just a link.
“To accept that the provision of a hyperlink is not enough to amount to
participation in the process of publication which is completed when a third party
clicks on the hyperlink so as to view the webpage, however, is not to deny that the
provision of a hyperlink might combine with other factors to amount to
participation in that process of publication of matter on that other webpage.” [¶66]
“It will be recalled that the Court of Appeal in this case adopted the possibility of defamatory matter being published by way of incorporation by reference into a search result. In our view, this suffers from two difficulties. The first is that whereas incorporation by reference clearly has a place in contract law 64 and other areas of law, such as patent law and the law relating to wills, it can have no place in the law of defamation, which requires that the defamatory meaning be conveyed for publication to be complete. [...]” [¶45]
I'd be wary of claims that this is broad decision affecting all areas of Australian IP law. Also be mindful that “publication” has a technical meaning; one of the dissenting opinions makes a good case that the majority is erring [¶149-154].
So you'd be liable for having helped people download some material, rather than being liable for publishing the material. That seems like a reasonable distinction, but not helpful for the person wanting to run ThePirateBay.
Magnet links are especially interesting in this context as they're essentially a 20-byte number, and contain no data about what they link to aside from the hash.
Magnet links can specify a name for the download ('dn'), tracker addreses to find peers ('tr') (but DHT can be used these days), and actual links to the files on the web via web seeds.
Lawyer was charged with murder. Google linked to an article which said that as a result organized crime had lost an important friend. Search result of his name turned up this article. Lawyer sued Google for publishing defamatory material. Google argued they weren't a publisher, but had merely hyperlinked to it. High Court agreed.
Just a short note that whilst this seems very obscure, Mick Gatto and Mario Condello were major figures in the Australian crime scene. They took out one of the most notorious Australian gangland murderers in history, Carl Williams. Believe me, they were all terrible.
Was having dinner at an Italian restaurant in Melbourne and when we didn’t order dessert they hurried us off the table, I was a bit annoyed until years later realised that the man they sat down in what had been our spot was Gatto.
> Mick Gatto and Mario Condello were major figures in the Australian crime scene. They took out one of the most notorious Australian gangland murderers in history,
That kind of makes them sound like heroes, but a quick scan of their wikipedia articles makes me think that's probably not the case...
It's the usual nonsense. Old media, newspapers, television broadcast, etc... would like to extract tax from Search engines like Google, Yahoo, Bing, etc... who hyperlink to media on their websites. They would very much like the courts to determine, in their favor, that a hyperlink is effectively re-publication of their copyrighted materials, thus entitling them to compensations.
I wouldn't be so quick to dismiss this as Murdoch machinations (old media tax extraction - besides, that's settled law here). During oral arguments one of the justices rightly pointed out that Google has a financial incentive in hyperlinking. Consider that Google may summarise a news article and display it in the search results - effectively stealing the ad traffic from the news publisher.
That is a specific legislation which is dumb, but is limited to specific designated properties under specific circumstances, and doesn't modify liability.
Readit News
Furthermore, the judgement makes it sound like Google's algorithm is fully neutral, that the results are the outcome of a simple mathematical algorithm. But Google is well-known to alter search result by manually boosting or banning websites. Given that Google has editorial control over the results, does the continued showing of misleading search results not count as defamation? How is it not the same as a newspaper continuing to call someone an "accused murderer" years after they have been acquitted?
In my opinion, Google gets to eat its cake and have it: full control over the content and none of the responsibility.
Not Disseminating: "Hey man, I really liked the new season of Stranger Things, you should check it out on Netflix"
Disseminating: "Hey man, you should check out the new season of Stranger Things, here's the DVDs."
> Does the continued showing of misleading search results not count as defamation?
Defamation: "You shouldn't trust Ted Cruz, he's the Zodiac killer."
Not Defamation: "Hey you should go read the Post's article about Ted Cruz, they're saying he's the Zodiac killer."
So this could easily have come down the other way and we could have a precedent suggesting potential liability for literally anybody who links to anything.
Because the messages were from a political party, they were exempt from anti-spam rules, and despite the protests from people sick of getting the messages - there was no requirement for any ability to unsubscribe.
[1] https://www.abc.net.au/triplej/programs/hack/craig-kelly-uap...
The TL;DR of the case is that a lawyer involved in some criminal gang cases sued Google because the reports by newspapers about him were available in Google search results.
I don't think many Australian politicians would take the side of the lawyer in this case.
Basically no media outlet in Australia allows comments unless they have a moderator (they never do) since this little gem.
> High Court rules media liable for Facebook comments on their stories
https://eresources.hcourt.gov.au/downloadPdf/2021/HCA/27
In the whole West, people who call themselves liberals demand further and further restrictions on speech in the name of niceness (no hate!) and accuracy (no misinformation!)
It is a road to hell paved with good intentions as usual, but we will have to relive the anti-utopia again to understand why free speech is valuable.
Free speech shouldn't mean someone is free from the consequences of that speech.
Deleted Comment
I don't have a list of what do, I just hypothesise there could be other constraints. Private agreements, CSAM laws, IPR laws, which go to why you cannot provide a hyperlink.
Not a Lawyer.
An example is a recent hot button issue where the Court ruled Aboriginal Australians could not be classified as "aliens" under the Constitution (Love v Commonwealth). The decision was condemned by conservative media as judicial activism. The majority comprised Bell, Gordon, Nettle and Edelman JJ, the latter 3 were conservative government appointments.
“Here, Google was fixed with knowledge that Mr Defteros claimed the material was defamatory when a solicitor [...] lodged a removal request on Google's website for the Underworld Article to be removed from Google's search results. Google was provided with the Uniform Resource Locator ("URL"). The removal request form was provided and generated by Google. [...] Google was therefore aware of the defamatory character of the Underworld Article a reasonable time after having been given notice and the defence of innocent dissemination cannot be established.” [¶113]
“Contrary to Google's submission, its vast repository of information obtained and organised by the web crawler and indexing programs is not "an undifferentiated mass until a search is requested". And in crawling and indexing, news articles are a particular, if not primary, focus. A webpage which appears to be a news article, importantly, is separately crawled – identified – and indexed as such a page 181 . "Important" webpages are crawled more often 182 . The web crawler program and the ranking algorithm's focus on "important" webpages, the crawling of such pages for updated data more frequently, and the PageRank and freshness clues used by the ranking algorithm then combine to produce search results in response to a search query 183.
The design of the Google search engine system as a whole is intended to, and does, affect the results that are produced when a user enters a particular search query. And it is for that reason that, in seeking protection for its search results under the First Amendment to the Constitution of the United States, Google has itself successfully argued that the design of its search engine system involves the exercise of evaluative judgment 184.” [¶123-124]
Essentially saying that “hey, you said (and the US supreme court agreed) your results are protected as free speech because you're exercising judgement in preparing them, so why should we agree that you're not exercising judgement in preparing them now?”
(torrent search engine shows links to a link to a "link" to a material)
It is an interesting point though, it's not publishing but in my limited understand it just means that Google isn't bound by links that it has on its pages.
But doesn’t this mean having a site with bit torrent magnet links would be legal as you’re not hosting or publishing copyrighted material?
“It will be recalled that the Court of Appeal in this case adopted the possibility of defamatory matter being published by way of incorporation by reference into a search result. In our view, this suffers from two difficulties. The first is that whereas incorporation by reference clearly has a place in contract law 64 and other areas of law, such as patent law and the law relating to wills, it can have no place in the law of defamation, which requires that the defamatory meaning be conveyed for publication to be complete. [...]” [¶45]
I'd be wary of claims that this is broad decision affecting all areas of Australian IP law. Also be mindful that “publication” has a technical meaning; one of the dissenting opinions makes a good case that the majority is erring [¶149-154].
https://en.wikipedia.org/wiki/Illegal_number
However they can be as bare-bones as you say.
Deleted Comment
Why didn't the lawyer sue the actual publisher?
Dead Comment
Just a little context.
That kind of makes them sound like heroes, but a quick scan of their wikipedia articles makes me think that's probably not the case...
Dead Comment
That is a specific legislation which is dumb, but is limited to specific designated properties under specific circumstances, and doesn't modify liability.