Litigation and Dispute Resolution

Legal professional privilege clarified for multidisciplinary partnerships

12 April, 2022

In the recent decision of Defteros v Google LLC [2020] VSC 219, the Supreme Court of Victoria held search engine Google liable for “publishing” defamatory material. In doing so, the decision has extended the reach of defamation to encompass those who make available defamatory material originally published by a third party by way of hyperlinks.

Background to the matter

Victorian criminal lawyer George Defteros was charged in June 2004 with conspiracy and incitement to murder Carl Williams, his father and his bodyguard. The charges were subsequently withdrawn in August 2005.

In 2016, Mr Defteros discovered that a Google search of his name returned results including a snippet of an article titled ‘Underworld loses valued friend at court’ which was hyperlinked to a full article published by The Age in 2004. Mr Defteros consequently commenced proceedings against Google, claiming that he was defamed.

In 2017, Mr Defteros commenced further proceedings for defamation after learning that other material was available via Google comprising:

  1. an image consisting of his photo collaged with three other photos of Melbourne gangland figures, which was hyperlinked to another article published by The Age from 2004 entitled ‘Gangland’s price of peace’ which referenced him;
  2. an image of him with derisive text; and
  3. a Wikipedia article entitled ‘Melbourne Gangland Killings’ which outlined the charges against him and footnoted the ‘Underworld loses valued friend at court’ article.

Mr Defteros claimed that this material conveyed defamatory imputations that he:

  • was a confidant and friend of criminals;
  • perverted the course of justice by creating false witness statements;
  • was a ‘stand over’ man who achieved outcomes for his clients by the threat and use of violence instead of advocacy;
  • was a criminal associate of underworld figures;
  • had hatched a plot and arranged for the killing of Carl Williams and his father;
  • should not be entitled to be a lawyer and that he was a criminal associate of the Melbourne underworld; and
  • that he was a criminal associate of the underworld group ‘The Carlton Crew’.

In both sets of the proceedings, Google argued that they were not publishers of the alleged defamatory material and that Mr Defteros was not defamed. Google also raised a number of defences including innocent dissemination, qualified privilege, and triviality.

What is defamation?

The tort of defamation requires satisfaction of three elements:

  1. the material conveys a defamatory imputation;
  2. the material identifies the person defamed; and
  3. the material has been published to at least one person other than the person defamed.

Publication requires the defamatory material to become available to another person. This extends to persons who republish defamatory material created by others.

The law presumes that a person who makes a defamatory statement presumed they knew it was defamatory. However, this presumption can be rebutted in the case of a secondary publisher (like a search engine) if they can demonstrate that they “did not know and could not reasonably have known that the material disseminated contained the impugned words”.

Decision of the Court

The fundamental issues before the Court were whether Google published the material in the summaries that appear with search results and the hyperlinked text and whether Google had defences available to it.

On the question of publication, the Court found that Google was not a “passive tool” but rather, was designed to operate in a manner in which “identified objectionable content can be removed by human intervention, from the search results that Google displays to a user” Therefore, if Google was notified that material was defamatory, once a reasonable time (being one week in this matter) had passed to give them an opportunity to remove it, Google was then “a publisher of the search results that its search engine returns”.

The Court also held that Google was a publisher of third-party webpages reached by clicking on a hyperlink within a Google search result. The basis for this being that the search “facilitates the communication of the contents of the linked webpage to such a substantial degree that it amounts to publication of the webpage”.

The Court rejected the defences raised by Google, noting that:

  • Google was not providing services as a matter of legal, social, or moral duty but rather a commercial interest. Accordingly the defence of qualified privilege was not made out.
  • It could not be innocent dissemination in circumstances where a complaint had been made to Google.
  • It was not trivial as the material could damage Mr Defteros’ reputation as a solicitor.

What does this all mean?

Whilst Google has indicated an intention to review the decision, the judgment as it currently stands has significant implications for both businesses and individuals alike.

Caution should be exercised when providing hyperlinks to external content. Any complaints regarding online content should be considered seriously and in line with established policies, noting that as a secondary publisher, the defence of innocent dissemination will lapse once a reasonable period to consider a complaint has passed.

Employers should also consider updating any responsible use of IT policies to encompass the provision of hyperlinks to material where the user knew or ought to have known the content was defamatory.

McCabes Litigation and Dispute Resolution group can provide advice as to your rights and obligations at law in a cause of action for defamation. 

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Canadian Court elevates thumbs-up emoji to signature status

In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract.   Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed.   Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)."   Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and   The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and   The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter.   Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship.   Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest.   What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.

Published by Foez Dewan
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Government

Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

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The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. 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