Top Legal Authorities Dive Into Murky Digital Waters

Michael Hedges August 22, 2022 - Follow on Twitter

The dynastic war between new digital media platforms, no longer so new, and legacy publishers, widely seen as elderly, over legal provenance has taken many turns and twists. Publishers turned to lawmakers for financial redress. The digital platforms, largely owned by American technology concerns, mounted defence in the courts. The battle over links and snippets is entering a new phase.

The High Court of Australia - the country’s court of last resort - ruled (August 17) that a search engine - in this case Google - providing hyperlinks is not a publisher. The decision closes, at least in Australia, a key argument of publishers in a variety of claims against digital media. If search engines were deemed publishers, anything posted - even parts - from a third source without permissions or compensations would constitute copyright infringement. “A hyperlink is merely a tool which enables a person to navigate to another webpage," said the High Court ruling, quoted by technology portal Ars Technica (August 17).

Decided was a years old defamation case and publishers were only ancillary. A 2004 article in Australian daily The Age, currently published by Nine Entertainment, referred to an individual as part of “the underworld.” That individual filed suit against Google in 2016 for defamation on discovering The Age article in search results. A lower court ruled in the individual’s favor in 2020, citing Google for “publishing the defamatory matter” and awarding monetary damages. Google appealed to the High Court, which reversed the lower court ruling. “The provision of a hyperlink in the search result merely facilitated access to the … article and was not an act of participation in the bilateral process of communicating the contents of that article to a third party,” said the majority opinion of the High Court justices.

While Google lawyers are likely pleased with the High Court dismissing the “publisher” designation, a separate but related observation in the same opinion may push a different button. The High Court distinguished between sponsored links and search results. “Using the Google search engine produces at least two different types of search results,”the High Court observed, noting it is separate from the defamation ruling. “The first set of results are advertisements that relate to the subject matter of the search; the second are the search results themselves. A different algorithm is used to produce the advertisements. These proceedings were not concerned with this aspect of the appellant’s global business and different considerations may apply to advertisements with respect to the issue of publication.” This suggests that sponsored links, a revenue source, should be considered separate from “search results,” which are not.

In the copyright zone, where the big money is, publishers are faring only slightly better. After the adoption of the EU Copyright Directive in 2019 publishers in European Union jurisdictions benefitted from compulsory negotiations with search engine and other digital portals for compensation. Publishers set their sights high, looking to squeeze big “Google money.” Alphabet, parent of Google, and other digital providers took arbitration more seriously, countering every demand.

In Germany, rights “collecting society” Corint Media are at an impasse with Alphabet (Google) lawyers over settlement terms. Corint Media represents nearly all German publishers, digital and otherwise. Both sides were meeting regularly with the arbitration team with the German Patent and Trademark Office (DPMA). All they can agree to, noted German media news portal Meedia (July 27), is “that they disagree.”

See also...

• Hot Topics - Defamation

• Hot Topics - Copyright Law

• Hot Topics - Google / Alphabet