Google and Melbourne lawyer George Defteros are set for a showdown in the High Court of Australia over whether the search engine giant is classified as a publisher or not.
Mr Defteros successfully sued Google in 2020 for $40,000, after it failed to take down a story he said had defamed him.
The story was originally published in The Age newspaper, and detailed how, in 2004, Mr Defteros had been charged with conspiracy and incitement to murder underworld figures, including Carl Williams.
But in 2005 the charges were withdrawn.
The initial ruling found that the article had conveyed the defamatory imputation that the respondent had crossed the line from professional lawyer for, to confidant and friend, of criminal elements.
Mr Defteros had reached a settlement by way of mediation, with the author and publisher of a book that had included a chapter based on the Age's article, in 2010.
In 2016, a removal request was made to Google, which was still directing searches to the article.
Google refused after it emerged the lawyer who made the application had misrepresented the situation, when he said Mr Defteros had sued the Age and it had agreed to remove the article as part of a settlement.
Mr Defteros had not sued the Age and the newspaper had not agreed to remove the article, although it did take it down in December 2016.
Court to determine if Google is a navigator or an active participant
Submissions by Google to the High Court rejected the assertion the link to the story amounted to publishing.
"Just as in the case of a modern-day telephone call, where the caller communicates directly with the listener … with no publication by the company itself."
But lawyers for Mr Defteros said Google was an active participant.
"The Google search engine is not a passive tool, such as the facility provided by a telephone company," submissions from Mr Defteros argue.
Google also argued it had a common-law qualified privilege defence.
But in their submissions, lawyers for Mr Defteros suggested they would tell the court that qualified privilege only applied if the person searching had a legitimate interest in the information beyond gossip or curiosity.
His lawyers said that the common law rules about publication were clear, and there should be no special rule for providers of hyperlinks.
Both sides have referred to last year's landmark High Court ruling, which found major media companies were liable for comments posted on their Facebook pages about Northern Territory man Dylan Voller.
Mr Voller's treatment as a detainee sparked a royal commission into the Northern Territory's youth detention system, after images of him shackled to a chair wearing a spit hood were revealed by the ABC's Four Corners program.
Lawyers for Google said the ruling affirmed that the process in which a defamatory matter was communicated must be active and voluntary, which it argued it was not.
But lawyers for Mr Defteros said Google was the publisher under principles developed by the Voller ruling, by facilitating and providing a platform, even if it did not intend to communicate the defamatory matter in question.
"The search result enticed the searcher to click on the hyperlink," submissions from Mr Defteros said.
The hearing is expected to last a day.
