High Court of Australia rules hyperlinking is not publishing [pdf](eresources.hcourt.gov.au)
eresources.hcourt.gov.au
High Court of Australia rules hyperlinking is not publishing [pdf]
https://eresources.hcourt.gov.au/downloadPdf/2022/HCA/27
150 comments
Judgment summary: https://cdn.hcourt.gov.au/assets/publications/judgment-summa...
"[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.
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.
> How do they not "participate in disseminating"?
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."
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."
Yes, that's probably a better link than the full judgement.
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.
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.
[1] https://www.abc.net.au/triplej/programs/hack/craig-kelly-uap...
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...
Can Android and iOS block such messages if large number of users report that its spam.
In this vein, my phone helpfully lists a lot of spam calls as "Scam Likely" but I've yet to figure out how to make it just send those calls straight to voicemail instead of letting them ring through since I don't want to talk to scammers at all.
Same, I also wish there was a way to just block all calls from numbers not in my address book. Would also be great to not let "scam likely" numbers leave voicemails because they always do.
> Same, I also wish there was a way to just block all calls from numbers not in my address book.
Depending on your phone/dialling app, you can already do this.
For me on a Pixel 3a, using the default Google Dialler I go to the Dialler app (where you dial numbers from), tap the three dots, settings, Blocked Numbers and there's a toggle "Unknown - block calls from unidentified callers".
iPhone has something similar, and I think Samsung's dialler also does too.
From the Parent Commenter:
> my phone helpfully lists a lot of spam calls as "Scam Likely" but I've yet to figure out how to make it just send those calls straight to voicemail
Similar to my other reply, you may be able to do this with the right phone/dialling app.
Again, for the Pixel 3a with the default Google Dialler: tap the three dots, settings, Caller ID and Spam, and there are three toggles.
See Calller and Spam ID. This shows if a caller is suspected as spam.
Filter spam calls. This rejects calls from suspected spammers (your carrier's normal rejected call handling then applies - i.e if you normally reject a call and it goes to Voicemail, then this is what will happen)
Verified calls. This allows companies which participate in the Verified Caller program to send the business information/reason for calling to your phone when they ring.
Depending on your phone/dialling app, you can already do this.
For me on a Pixel 3a, using the default Google Dialler I go to the Dialler app (where you dial numbers from), tap the three dots, settings, Blocked Numbers and there's a toggle "Unknown - block calls from unidentified callers".
iPhone has something similar, and I think Samsung's dialler also does too.
From the Parent Commenter:
> my phone helpfully lists a lot of spam calls as "Scam Likely" but I've yet to figure out how to make it just send those calls straight to voicemail
Similar to my other reply, you may be able to do this with the right phone/dialling app.
Again, for the Pixel 3a with the default Google Dialler: tap the three dots, settings, Caller ID and Spam, and there are three toggles.
See Calller and Spam ID. This shows if a caller is suspected as spam.
Filter spam calls. This rejects calls from suspected spammers (your carrier's normal rejected call handling then applies - i.e if you normally reject a call and it goes to Voicemail, then this is what will happen)
Verified calls. This allows companies which participate in the Verified Caller program to send the business information/reason for calling to your phone when they ring.
Thanks for this!
well I do have such feature in my android phone.
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.
Uncontroversial decisions don't make the news, as a rule.
Common sense isn't.
I'd rather be right than popular, and I often am.
Sadly, these days being right is often a quick path to being unpopular. :(
These days? Ever heard of Socrates?
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.
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.
This was my interpretation of attaching the concept of 'publisher' to Google in relation to the recent-ish "news" aggregation debacle whereby Google and Facebook were eventually made to pay news companies for linking to their articles in an oh-so-obviously punitive pursuit by the Australian Government of the day protecting their, umm, "political campaign contributors".*
Someone else commented that this is a very 'thin' interpretation, and so there may be no implications to the above. Were there to be any implications, however, they would most certainly go against the above 'protection payments' being enforceable.*
*Personal opinion, do not misinterpret as fact, please do your own research to misinterpret in your own, personal way.
Someone else commented that this is a very 'thin' interpretation, and so there may be no implications to the above. Were there to be any implications, however, they would most certainly go against the above 'protection payments' being enforceable.*
*Personal opinion, do not misinterpret as fact, please do your own research to misinterpret in your own, personal way.
> This was my interpretation of attaching the concept of 'publisher' to Google in relation to the recent-ish "news" aggregation debacle whereby Google and Facebook were eventually made to pay news companies for linking to their articles in an oh-so-obviously punitive pursuit by the Australian Government of the day protecting their, umm, "political campaign contributors".
Sure, but that's a very different issue to this one.
The wacky "make big tech pay" thing is dumb populism but appears pretty unrelated.
Sure, but that's a very different issue to this one.
The wacky "make big tech pay" thing is dumb populism but appears pretty unrelated.
I think you're right, but the terminology 'publisher' joins the two together in my mind.
Actually I think you're right.
There is no technical understanding of any of this in the minds of the people making these decisions. The distinction between republishing via AMP and linking takes longer than 5 seconds to explain, so will be ignored by everyone involved.
Google & Facebook were being attacked (at the behest of Murdoch) on multiple fronts. This was one of them, the news mess was another.
I think (again, personal opinion, ignore at will) that this is the last remnants of that broohaha being put to rest.
There is no technical understanding of any of this in the minds of the people making these decisions. The distinction between republishing via AMP and linking takes longer than 5 seconds to explain, so will be ignored by everyone involved.
Google & Facebook were being attacked (at the behest of Murdoch) on multiple fronts. This was one of them, the news mess was another.
I think (again, personal opinion, ignore at will) that this is the last remnants of that broohaha being put to rest.
You are misunderstanding the problem.
The were converting the links, using AMP for instance, and driving traffic away from the publisher
The were converting the links, using AMP for instance, and driving traffic away from the publisher
Free speech needs some love in our laws for sure.
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
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
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.
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.
> we will have to relive the anti-utopia again to understand why free speech is valuable.
Aren't we already in a privacy anti-utopia, with pervasive, nearly universal surveillance by the large tech companies and the info going to the US government and perhaps its "five eyes" allies?
Aren't we already in a privacy anti-utopia, with pervasive, nearly universal surveillance by the large tech companies and the info going to the US government and perhaps its "five eyes" allies?
> liberals demand further and further restrictions on speech in the name of niceness (no hate!) and accuracy (no misinformation!)
if you cant control your own forums, wont your service quickly get overwhelmed by trolls and scammers?
Not everywhere is the USA and erosion of speech rights in some other countries has already reached the level of "causing emotional distress is a crime".
> some other countries has already reached the level of "causing emotional distress is a crime".
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.
Free speech shouldn't mean someone is free from the consequences of that speech.
That is not what free speech means. Why should the publisher be liable for the posts of their commenters? If that were the case worldwide, we would essentially see the end of communication on the internet.
Because they're participating in the dissemination of those posts? If you send a defamatory "letter to the editor" to a traditional newspaper and they publish it, they'll be on the hook as well.
You cannot liken internet comment sections to individually selected letters to the editor. We have seen judicial precedent that social media functions more as a public forum than editorialized publications. It is an impossible burden for websites to individually review every single comment - it would be unimaginably damaging to freedom of speech and the dissemination of information worldwide.
> It is an impossible burden for websites to individually review every single comment
Yes. So they don't have comment sections or they have expensively moderated comment sections. Both are preferable to unmoderated comment sections. I thought this had been the norm in many countries for years now?
Note that newspaper sites are very different from any random "forum". They typically enjoy very special legal protections and in return have legal responsibilities with a responsible publisher.
This meant that they review "letters to the editor" and take responsibility for them before publishing. And of course they can't do that with the comment section under an article online. And the simple solution is: for these specific types of publishers, just skip having comments or moderate the comments like the paper content is moderated.
Yes. So they don't have comment sections or they have expensively moderated comment sections. Both are preferable to unmoderated comment sections. I thought this had been the norm in many countries for years now?
Note that newspaper sites are very different from any random "forum". They typically enjoy very special legal protections and in return have legal responsibilities with a responsible publisher.
This meant that they review "letters to the editor" and take responsibility for them before publishing. And of course they can't do that with the comment section under an article online. And the simple solution is: for these specific types of publishers, just skip having comments or moderate the comments like the paper content is moderated.
> This meant that they review "letters to the editor" and take responsibility for them before publishing.
The reader's letters editor reads the letter, and decides whether to publish it. The paper takes responsibility.
The comments editor reads the comment, and decides whether to publish it. The website takes responsibility.
I really can't see the difference.
The reader's letters editor reads the letter, and decides whether to publish it. The paper takes responsibility.
The comments editor reads the comment, and decides whether to publish it. The website takes responsibility.
I really can't see the difference.
The "comments editor" is normally called a "moderator" in the web, but yes, there really is no difference.
Now, if by "comments editor" you mean the person that wrote the comment and hit "comment" on the site, that is perfectly equivalent to the person sending the letter to the editor, but has 0% equivalence to the person deciding whether the letter will be published.
When you comment on a site, the mechanism goes your computer -> server -> other users. There is no obligation for the server to make it available to other users just because it accepted your request. And indeed, the vast vast vast majority of sites on the internet that accept user content (far more than 99.9%) engage in moderation - some before the fact (moderator must approve content before it is published to other users), some after the fact (moderator sometimes deletes content that was previously published).
Now, if by "comments editor" you mean the person that wrote the comment and hit "comment" on the site, that is perfectly equivalent to the person sending the letter to the editor, but has 0% equivalence to the person deciding whether the letter will be published.
When you comment on a site, the mechanism goes your computer -> server -> other users. There is no obligation for the server to make it available to other users just because it accepted your request. And indeed, the vast vast vast majority of sites on the internet that accept user content (far more than 99.9%) engage in moderation - some before the fact (moderator must approve content before it is published to other users), some after the fact (moderator sometimes deletes content that was previously published).
> The "comments editor" is normally called a "moderator"
I know! I wanted to emphasize the equivalence between a print letters editor and a comments moderator.
Obviously it's hard to unpublish a letter to the editor in a print organ (you could leave it out of the second edition, I guess). So print editors are forced to pre-moderate.
I know! I wanted to emphasize the equivalence between a print letters editor and a comments moderator.
Obviously it's hard to unpublish a letter to the editor in a print organ (you could leave it out of the second edition, I guess). So print editors are forced to pre-moderate.
Also worth noting: print letters editors don't just moderate; they edit.
I once had a "letter to the editor" published. They cut an important chunk of my prose, and added a misleading headline. That was 30 years ago, and I've never written to an editor since.
When I used to moderate the comments section on a political site, I would edit, but very cautiously. Mainly, I would remove addresses and phone numbers of people being criticized in a comment, and removed completely most kinds of bigotry and prejudice, and most exhortations to criminal acts. This was an "open posting" site - very strongly anti-censorship - but we still got attacked regularly for moderating at all.
I once had a "letter to the editor" published. They cut an important chunk of my prose, and added a misleading headline. That was 30 years ago, and I've never written to an editor since.
When I used to moderate the comments section on a political site, I would edit, but very cautiously. Mainly, I would remove addresses and phone numbers of people being criticized in a comment, and removed completely most kinds of bigotry and prejudice, and most exhortations to criminal acts. This was an "open posting" site - very strongly anti-censorship - but we still got attacked regularly for moderating at all.
Note the nuances of this decision.
Facebook wasn't found liable - they were seen as public forum.
But the newspaper by deciding to include comments on the article was found liable.
Facebook wasn't found liable - they were seen as public forum.
But the newspaper by deciding to include comments on the article was found liable.
So if I defame someone in this comment, you believe Y Combinator should be held liable?
If it's drawn to their attention and they don't remove it, that seems reasonable.
But doesn't that effectively deprive the commenter of their legal rights? Instead of suing the commenter for defamation and them then having the opportunity to defend themselves in court, you can just threaten to sue Y Combinator who will then remove the comment without any due process. Unlike the person who posted the comment, Y Combinator has no particular reason to care whether a particular comment stays up; certainly not enough to go to court over it at any rate.
How can a random commenter on HN have legal rights over Y Combinator? Clearly this site is a private organization and not run via the authority of the government.
That's precisely my point. By making Y Combinator the target of the lawsuits, you would deprive the actual accused person of the ability to defend themselves when Y Combinator inevitably capitulates. I can mount a legal defense against a defamation lawsuit; I can't mount a legal defense against Y Combinator deleting my comments because they don't feel like going to court on my behalf.
What are you speaking of? who is defending themselves against who?
Let's say I post a comment on Hacker News critical of some big megacorp. Megacorp threatens to sue YCombinator if they don't take down my comments. Hacker News deletes my comment because they don't want to get into a legal fight with Megacorp over a random comment. I can't sue Hacker News because they have a right to delete my comments for any reason, and I can't sue Megacorp because they didn't delete my comment, they just asked Hacker News to delete it. I'm SOL.
Contrast that to the following: I post a comment on Hacker News critical of some big megacorp. Megacorp can't credibly threaten to sue YCombinator over that because they are legally protected from being sued over the actions of their users. Megacorp sues me instead. I now have the ability to defend myself in court against Megacorp should I choose to.
Contrast that to the following: I post a comment on Hacker News critical of some big megacorp. Megacorp can't credibly threaten to sue YCombinator over that because they are legally protected from being sued over the actions of their users. Megacorp sues me instead. I now have the ability to defend myself in court against Megacorp should I choose to.
*OBLIGATORY IANAL!*
If we were to apply US law, specifically the infamous "Section 230", then that would depend on whether Y Combinator actively engages in moderation (aka editorializing) of comments.
If Y Combinator only engages in moderation of comments merely to satisfy other legal requirements (eg: remove illegal materials), then Y Combinator is a platform and cannot be held liable for comments.
If Y Combinator engages in moderation of comments beyond any requirements mandated by law (eg: remove some comments because the moderators don't like them), then Y Combinator is a publisher editorializing its content and can be held liable for comments.
A simplification is if Y Combinator has anything to do with a comment other than blindly disseminating it, then Y Combinator can be held liable for the comment. If not, whoever wrote the comment is liable.
And yes, if you think social media is getting away with moderating and editorializing its contents (eg: "this is disinformation" notices) while evading any and all liability under the guise of being a platform, you are absolutely right.
If we were to apply US law, specifically the infamous "Section 230", then that would depend on whether Y Combinator actively engages in moderation (aka editorializing) of comments.
If Y Combinator only engages in moderation of comments merely to satisfy other legal requirements (eg: remove illegal materials), then Y Combinator is a platform and cannot be held liable for comments.
If Y Combinator engages in moderation of comments beyond any requirements mandated by law (eg: remove some comments because the moderators don't like them), then Y Combinator is a publisher editorializing its content and can be held liable for comments.
A simplification is if Y Combinator has anything to do with a comment other than blindly disseminating it, then Y Combinator can be held liable for the comment. If not, whoever wrote the comment is liable.
And yes, if you think social media is getting away with moderating and editorializing its contents (eg: "this is disinformation" notices) while evading any and all liability under the guise of being a platform, you are absolutely right.
> If Y Combinator engages in moderation of comments beyond any requirements mandated by law (eg: remove some comments because the moderators don't like them), then Y Combinator is a publisher editorializing its content and can be held liable for comments.
Just because many people wish Section 230 says that, it doesn't. The the contrary it gives fairly broad protection to moderation efforts and does not say that moderation amounts to becoming a publisher. (hence various people calling for changes to this, restricting platforms ability to moderate)
Just because many people wish Section 230 says that, it doesn't. The the contrary it gives fairly broad protection to moderation efforts and does not say that moderation amounts to becoming a publisher. (hence various people calling for changes to this, restricting platforms ability to moderate)
And the author of the comment can be sued for defamation.
This is what DMCA section 230 settled in the US.
This is what DMCA section 230 settled in the US.
[deleted]
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.
Not a Lawyer.
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.
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.
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?”
“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?”
I wonder how this would impact a torrent search engine hosted in Australia
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)
(torrent search engine shows links to a link to a "link" to a material)
The laws in Australia refer to "facilitating" copyright infringement. Whether or not a torrent website is a publisher is entirely immaterial
By this logic, google "facilitates" the defamation by providing hyperlinks to the article. The court disagrees.
"Facilitating" defamation isn't defamation, so not a crime. Facilitating copyright infringement is explicitly prohibited, whatever the definition of "publish" is.
This is absurd. Where does it end? iphone allows to watch copyrighted material. Should apple be responsible for any infringement?
I didn't make the law!
You're right; my spectacles-supplier makes it possible for me to watch infringing videos. So they're "facilitating".
Arguably a website operator can do something about it; Vision Express can't, and nor can Apple.
The battle between copyright maximalists and the "information wants to be free" crowd won't end until there's a copyright regime that most people think is fair. I think that means that (a) all copyright expires on the authors death, or after 70 years, whivhever comes first; (b) copyright infringement is a purely civil affair; (c) copyright holders get to sue for lost royalties, which they have to demonstrate, thus suppressing actions against people whove never made a penny from infringement.
That's how it was when I was a kid, and it seemed pretty fair. All the subsequent changes have been to favour the RIAA and the MPAA, enacted by the US government, and then rammed down the throat of the rest of the world through trade agreements and so on.
You're right; my spectacles-supplier makes it possible for me to watch infringing videos. So they're "facilitating".
Arguably a website operator can do something about it; Vision Express can't, and nor can Apple.
The battle between copyright maximalists and the "information wants to be free" crowd won't end until there's a copyright regime that most people think is fair. I think that means that (a) all copyright expires on the authors death, or after 70 years, whivhever comes first; (b) copyright infringement is a purely civil affair; (c) copyright holders get to sue for lost royalties, which they have to demonstrate, thus suppressing actions against people whove never made a penny from infringement.
That's how it was when I was a kid, and it seemed pretty fair. All the subsequent changes have been to favour the RIAA and the MPAA, enacted by the US government, and then rammed down the throat of the rest of the world through trade agreements and so on.
I guess it means they couldn't be sued for defamation because of the contents of one of the torrents?
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)
I doubt it would 'allow' it, given that the Federal Court has ordered ISP to 'censor' certain torrent websites. https://en.m.wikipedia.org/wiki/Internet_censorship_in_Austr...
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.
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.
This isn't true for magnet links, which are just hashes that are used as keys in the DHT'S KV store.
Example is btdigg which exclusively crawls and indexes magnet links from the DHT
Example is btdigg which exclusively crawls and indexes magnet links from the DHT
There is legally and effectively nothing different about the two. They both give you what you need to get the file. The extra layer of indirection of having to get peers from DHT rather than a tracker doesn't matter.
> They both give you what you need to get the file.
I can give you what you need just by telling you to torrent f09c8d0884590088f4004e010a928f8b6178c2fd
That's even less than a hyperlink. It would be absolutely ridiculous to say that I'm publishing the torrent.
I can give you what you need just by telling you to torrent f09c8d0884590088f4004e010a928f8b6178c2fd
That's even less than a hyperlink. It would be absolutely ridiculous to say that I'm publishing the torrent.
There is nothing logically different between providing a .torrent file and a magnet URI. They both point you to the file.
If sharing .torrent file is illegal, then so is the magnet. The court doesn’t care about “Um technically there is a DHT in the middle here”.
If sharing .torrent file is illegal, then so is the magnet. The court doesn’t care about “Um technically there is a DHT in the middle here”.
Given the topic is the difference between an article and a link to it (one level of indirection), the indirection does matter (at least, if you are google).
A torrent file only contains a hash checksum of the data and a tracker url (basically a "link" to the tracker). A magnet has the same hash but uses the DHT to find seeders while a torrent file looks for seeders connected to the tracker.
Personally I don't see that as being materially different to a magnet link.
The only difference is the DHT is acting like a kind of super-tracker.
Personally I don't see that as being materially different to a magnet link.
The only difference is the DHT is acting like a kind of super-tracker.
Would that be more akin to facilitating a crime? (I don't know anything about law - and even less about Aussie law)
It’s interesting, right? I’ll bet it depends on the relative wealth of the parties.
> I’ll bet it depends on the relative wealth of the parties.
Sure, in the same way that the outcome of an election depends on the relative amount of campaign spending by each side.
This is an example of a belief that is extremely common despite the fact that there is a mountain of evidence contradicting it and almost nothing in support.
Sure, in the same way that the outcome of an election depends on the relative amount of campaign spending by each side.
This is an example of a belief that is extremely common despite the fact that there is a mountain of evidence contradicting it and almost nothing in support.
In the UK one of the two wealthiest parties always wins. Strangely enough, they've set up party financing and spending rules to suit themselves.
I'm not sure what you mean by a mount of evidence contradicting?
https://fivethirtyeight.com/features/money-and-elections-a-c...
Obviously it's not going to be 100% success... but are you saying that marketing doesn't work?
https://fivethirtyeight.com/features/money-and-elections-a-c...
Obviously it's not going to be 100% success... but are you saying that marketing doesn't work?
> I'm not sure what you mean by a mount[ain] of evidence contradicting?
> https://fivethirtyeight.com/features/money-and-elections-a-c...
Your own link is fairly explicit about this:
> “I think where you have to change your thinking is that money causes winning,” said Richard Lau, professor of political science at Rutgers. “I think it’s more that winning attracts money.”
> decades of research suggest that money probably isn’t the deciding factor in who wins a general election, and especially not for incumbents.
> Most of the research on this was done in the last century, Bonica told me, and it generally found that spending didn’t affect wins for incumbents and that the impact for challengers was unclear.
> the strong raw association between raising the most cash and winning probably has more to do with big donors who can tell (based on polls or knowledge of the district or just gut-feeling woo-woo magic) that one candidate is more likely to win — and then they give that person all their money.
> 80 to 90 percent of congressional races have outcomes that are effectively predetermined by the district’s partisan makeup — and the people that win those elections are still given (and then must spend) ridiculous sums of money because, again, big donors like to curry favor with candidates they know are a sure thing.
> https://fivethirtyeight.com/features/money-and-elections-a-c...
Your own link is fairly explicit about this:
> “I think where you have to change your thinking is that money causes winning,” said Richard Lau, professor of political science at Rutgers. “I think it’s more that winning attracts money.”
> decades of research suggest that money probably isn’t the deciding factor in who wins a general election, and especially not for incumbents.
> Most of the research on this was done in the last century, Bonica told me, and it generally found that spending didn’t affect wins for incumbents and that the impact for challengers was unclear.
> the strong raw association between raising the most cash and winning probably has more to do with big donors who can tell (based on polls or knowledge of the district or just gut-feeling woo-woo magic) that one candidate is more likely to win — and then they give that person all their money.
> 80 to 90 percent of congressional races have outcomes that are effectively predetermined by the district’s partisan makeup — and the people that win those elections are still given (and then must spend) ridiculous sums of money because, again, big donors like to curry favor with candidates they know are a sure thing.
> Turns out, advertising, the main thing campaigns spend their money on, doesn’t work all that well.
But
> unlike in the general election, early fundraising strongly predicted who would win primary races.
But
> unlike in the general election, early fundraising strongly predicted who would win primary races.
Partiality in law is clear and the evidence is overwhelming. Poor defendants lose while wealthy defendants can drag out the process indefinitely. Wealthy plaintiffs can bankrupt individuals trying to defend themselves: the music industry used this strategy during the time of Napster -- feel free to look it up.
Impartiality is the hypothetical story we tell ourselves to make us feel good about, for example, Hunter Biden taking selfies with 20g of crack cocaine while black men do 10 years or more for the same crime. There are so many examples that if this one offends your politics, let me know, and I'll provide you with examples that will comport with your preferred media source.
Impartiality is the hypothetical story we tell ourselves to make us feel good about, for example, Hunter Biden taking selfies with 20g of crack cocaine while black men do 10 years or more for the same crime. There are so many examples that if this one offends your politics, let me know, and I'll provide you with examples that will comport with your preferred media source.
Problems in the law are clear; partiality less so. Are there more black men who post selfies online with 20g of crack and never get charged for it, or more who go to jail for having 20g of crack?
When Hunter Biden gets extra protection from the law, does that source more from his money or from his political status?
When Michael Milken got extra persecution from the law, was his wealth an asset or a liability?
When Hunter Biden gets extra protection from the law, does that source more from his money or from his political status?
When Michael Milken got extra persecution from the law, was his wealth an asset or a liability?
When high-status individuals get away with well-documented crimes with zero or minimal consequences while low-status individuals are taken to the cleaners by zealous prosecutors eager to pump their conviction rates, the public learns that all men are not equal before the law and that corruption is acceptable to the people that matter.
This is well-understood and I’m not breaking any new ground here by saying so.
What I am saying that is perhaps offensive or provocative is that this happens in the USA.
This is well-understood and I’m not breaking any new ground here by saying so.
What I am saying that is perhaps offensive or provocative is that this happens in the USA.
Sorry, were we talking about partiality to high-status individuals or partiality to wealthy individuals?
These tend to be the same group.
Not even close.
I'm not sure how you've come to the conclusion that wealth and power are unrelated, but best of luck to you.
Why would you try and find physical evidence of a mental hallucination except brain activity?
Capitalism does not “actually exist”. It’s learned constraints on agency. I can’t just walk into Musks house and eat his food.
I can’t walk into Tesla and alter products due to my meat bag not being referred to as billionaire Elon Musk.
How much more evidence story mode still runs the world do you need?
Capitalism does not “actually exist”. It’s learned constraints on agency. I can’t just walk into Musks house and eat his food.
I can’t walk into Tesla and alter products due to my meat bag not being referred to as billionaire Elon Musk.
How much more evidence story mode still runs the world do you need?
This might be a dumb question…
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?
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?
“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].
“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.
https://en.wikipedia.org/wiki/Illegal_number
https://en.wikipedia.org/wiki/Illegal_number
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.
However they can be as bare-bones as you say.
However they can be as bare-bones as you say.
[deleted]
i thought that was already the case. or at least legally grey
Anyone in the know care to summarize what this is more specifically, for those of us not eager to read 97 pages of legalese?
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.
So how does this bode for the lobbying by Ruper Murdoch and co to force search engines to pay for linking to news articles ?
I think it would be irrelevant, since a specific law was passed in Australia forcing them to pay. I think it applies even to bare hyperlinks?
https://www.bbc.com/news/world-australia-56410335
https://www.bbc.com/news/world-australia-56410335
Happening in UK too.
https://inews.co.uk/news/technology/tech-giants-google-faceb...
Public broadcasters like the BBC love to gloat every few pixels about how trustworthy they are. Yet, they will have more secret commercial deals with tech giants to get automatic prominent positions in feeds, regardless of quality. They're already spending up on ads on those platforms, and now the money will move in both directions. What could go wrong?!
In addition, the scheme involves harvesting data of users on the social platforms. It's a messy conflict of interest that encourages high volumes of low quality. Because that's all that's needed to get paid.
https://inews.co.uk/news/technology/tech-giants-google-faceb...
Public broadcasters like the BBC love to gloat every few pixels about how trustworthy they are. Yet, they will have more secret commercial deals with tech giants to get automatic prominent positions in feeds, regardless of quality. They're already spending up on ads on those platforms, and now the money will move in both directions. What could go wrong?!
In addition, the scheme involves harvesting data of users on the social platforms. It's a messy conflict of interest that encourages high volumes of low quality. Because that's all that's needed to get paid.
Lol wtf does he think would happen if successful? That Google would pay the fee or just drop fox from all search results?
Part of the law was that you couldn't drop one publisher, you had to pay for all news links or drop all news from the platform. Facebook claimed they would and actually did drop news for a few weeks but eventually backtracked and agreed to pay.
Both Google and Facebook are paying in Australia.
(In Australia his main publications are news.com.au and associated other mastheads, and Sky News. Fox isn't a player).
(In Australia his main publications are news.com.au and associated other mastheads, and Sky News. Fox isn't a player).
Australia has pretty terrible defamation laws, this was probably an attempt to make money. Sadly it usually works.
This is unrelated to defamation laws in any way.
> This is unrelated to defamation laws in any way.
Did you even read the case-summary?
"The respondent commenced proceedings, claiming damages for defamation from the appellant"
Did you even read the case-summary?
"The respondent commenced proceedings, claiming damages for defamation from the appellant"
Sure, the article is about defamation, but the current sub-thread is about Rupert Murdoch wanting Google to pay for linking to his news stories - which has nothing at all to do with defamation.
Yes "this" was supposed to mean the whole "pay for news" thing has nothing to do with defamation laws.
exactly. murdoch controls australia, nothing like a bit of outrage to get the tabloid pumping. he will no doubt now smear said high court judges
Murdoch's grip is slipping. He failed to turn the last Federal election, and has failed with about five State elections despite publishing huge amounts of rabid nonsense about the party he was trying to get out and massive support for the party he was trying to get in. He used to have a very high success rate getting the party he wanted in, but in the last few years he seems less and less effective.
Part of his issue is all his stuff has gone so far right with Sky News (especially 'After Dark' shows) and the tabloids (which also basically includes The Australian now), similar to how Fox News in the US went. But it seems that while he is pulling in a number of crazies, it's seemingly nowhere as big a proportion of the population as in the US. So more people seem to be switching off than getting pulled in (thankfully).
Part of his issue is all his stuff has gone so far right with Sky News (especially 'After Dark' shows) and the tabloids (which also basically includes The Australian now), similar to how Fox News in the US went. But it seems that while he is pulling in a number of crazies, it's seemingly nowhere as big a proportion of the population as in the US. So more people seem to be switching off than getting pulled in (thankfully).
> it's seemingly nowhere as big a proportion of the population as in the US.
I think its because Australia has a Preferential Voting system.
I think its because Australia has a Preferential Voting system.
Yeah, I am actually very thankful for preferential voting. The way it makes it possible for minor parties to exist and for independents to get in seems to me to be a very good thing.
Not tightly enough to win the last election though :)
Seems like a very easy case - kind of astonishing it wasn't already completely settled law.
Why didn't the lawyer sue the actual publisher?
Why didn't the lawyer sue the actual publisher?
As can be expected, a one paragraph summary of a 91-page decision necessarily glosses over almost all the complexities involved.
Among other things, the court highlights an analogy of a google search to a librarian retrieving a book for a patron, including bookmarking relevant passages. And it's noteworthy that the librarian could in fact be guilty of publishing defamatory material, because “publishing” is a technical term.
“It was not suggested by the courts below that the appellant, as an internet search engine operator, actually communicated the defamatory material. It is of course possible that search results may themselves contain matter which is defamatory. This was acknowledged in Trkulja 35 . But that is not this case.
The question which arises here is whether providing search results which, in response to an enquiry, direct the attention of a person to the webpage of another and assist them in accessing it amounts to an act of participation in the communication of defamatory matter.” [¶23-24]
Among other things, the court highlights an analogy of a google search to a librarian retrieving a book for a patron, including bookmarking relevant passages. And it's noteworthy that the librarian could in fact be guilty of publishing defamatory material, because “publishing” is a technical term.
“It was not suggested by the courts below that the appellant, as an internet search engine operator, actually communicated the defamatory material. It is of course possible that search results may themselves contain matter which is defamatory. This was acknowledged in Trkulja 35 . But that is not this case.
The question which arises here is whether providing search results which, in response to an enquiry, direct the attention of a person to the webpage of another and assist them in accessing it amounts to an act of participation in the communication of defamatory matter.” [¶23-24]
And when considering the librarian analogy:
“As the trial judge found, navigating the Web can be a challenge. Search engines assist in that process. But the analogy drawn by her Honour between a search result and a librarian handing over to a library user a book marked at a particular page is problematic, not the least because a search result is only one of a number of responses to an enquiry, as was the case here. Properly understood, a search result conveys to the person searching that they may be interested in one or more of the results. The person is not directed to a particular result, as the Court of Appeal implied. According to the trial judge's findings, results are ranked by the use of an algorithm having regard to relevance using "signals" or clues as to what the person searching is looking for according to the words used in their enquiry. The search result merely refers, in the sense of drawing attention, to a webpage. As Abella J pointed out in Crookes v Newton 68 , there is a difference between drawing a person's attention to the existence of an article and communicating its content. And whilst it may be said that the use of a hyperlink may mean The Age gains a reader, that does not make the appellant something other than a reference provider.
The respondent submitted that the Search Result had the added feature, to which the Court of Appeal referred, that by its terms it "enticed" the person searching to open the webpage. It is difficult to see how this level of excitement could be said to be generated by the words of the Search Result. Moreover, it needs to be borne in mind that the person has already activated a search for particular information before the result is received. As is the case with any search result, a person will employ the hyperlink if they think the webpage to which they are directed may provide the information they seek. It is notable that the respondent also submitted that the decisions of the New York courts should also be seen as involving "enticement". In doing so the respondent appears to equate "entice" with "call attention to".” [¶50-51]
“As the trial judge found, navigating the Web can be a challenge. Search engines assist in that process. But the analogy drawn by her Honour between a search result and a librarian handing over to a library user a book marked at a particular page is problematic, not the least because a search result is only one of a number of responses to an enquiry, as was the case here. Properly understood, a search result conveys to the person searching that they may be interested in one or more of the results. The person is not directed to a particular result, as the Court of Appeal implied. According to the trial judge's findings, results are ranked by the use of an algorithm having regard to relevance using "signals" or clues as to what the person searching is looking for according to the words used in their enquiry. The search result merely refers, in the sense of drawing attention, to a webpage. As Abella J pointed out in Crookes v Newton 68 , there is a difference between drawing a person's attention to the existence of an article and communicating its content. And whilst it may be said that the use of a hyperlink may mean The Age gains a reader, that does not make the appellant something other than a reference provider.
The respondent submitted that the Search Result had the added feature, to which the Court of Appeal referred, that by its terms it "enticed" the person searching to open the webpage. It is difficult to see how this level of excitement could be said to be generated by the words of the Search Result. Moreover, it needs to be borne in mind that the person has already activated a search for particular information before the result is received. As is the case with any search result, a person will employ the hyperlink if they think the webpage to which they are directed may provide the information they seek. It is notable that the respondent also submitted that the decisions of the New York courts should also be seen as involving "enticement". In doing so the respondent appears to equate "entice" with "call attention to".” [¶50-51]
The article is no longer available (since 2017 according to the Wayback Machine) so he probably did.
https://www.theage.com.au/articles/2004/06/17/1087245041025....
https://www.theage.com.au/articles/2004/06/17/1087245041025....
This is actually discussed in the decision:
“The respondent did not sue The Age for defamation; instead, in 2010, the respondent sued two authors of a book that, amongst other things, contained a chapter based on the Underworld article. One of the two authors was also the author of the Underworld article. The claim settled at mediation, and it was a term of the settlement that the authors would make certain revisions to the book. In exchange, the respondent released the authors from all liability in relation to a number of matters, including any article published in The Age or its affiliated publications concerning the respondent.” [¶182]
“The respondent did not sue The Age for defamation; instead, in 2010, the respondent sued two authors of a book that, amongst other things, contained a chapter based on the Underworld article. One of the two authors was also the author of the Underworld article. The claim settled at mediation, and it was a term of the settlement that the authors would make certain revisions to the book. In exchange, the respondent released the authors from all liability in relation to a number of matters, including any article published in The Age or its affiliated publications concerning the respondent.” [¶182]
People are more likely to search Google and read a linked article about the guy than find the linked article just by randomly entering URLs in the browser without selecting anything from the autocomplete drop down.
ABC news (Australia) have a good summary, https://www.abc.net.au/news/2022-08-17/high-court-decision-g....
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.
Just a little context.
Just a little context.
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.
That would have caused some white hairs had you known!
> 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...
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...
Absolutely not heroes. Not even anti-heroes. Just evil.
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.
I'm no fan of Google but it really was the height of hypocrisy for news publishers to demand their content be visible in Google search results while simultaneously complaining that their copyright is being infringed with respect to titles/snippets.
Explicitly allowing crawlers and — perhaps most tellingly, offering specific metadata for SEO optimisations — is tacit permission for the republication of hyperlinks/titles/snippets. If you don't like that deal, just deny Googlebot (et al). It really is that simple.
The settled law is a joke.
(Or in the alternative, as a non-news publisher, I want my cut too.)
Explicitly allowing crawlers and — perhaps most tellingly, offering specific metadata for SEO optimisations — is tacit permission for the republication of hyperlinks/titles/snippets. If you don't like that deal, just deny Googlebot (et al). It really is that simple.
The settled law is a joke.
(Or in the alternative, as a non-news publisher, I want my cut too.)
Does this have any implications for that case between Google/Facebook and the media companies where they had to pay them to link to their stories??
No.
That is a specific legislation which is dumb, but is limited to specific designated properties under specific circumstances, and doesn't modify liability.
That is a specific legislation which is dumb, but is limited to specific designated properties under specific circumstances, and doesn't modify liability.
This was about content, not just hyperlinking.
On page 5 the judgement clearly talks about full search results where each result is “comprised [of the] title of webpage, snippet of content, and hyperlink”.
“Australian court rules that link previews are not publishing” …perhaps?
On page 5 the judgement clearly talks about full search results where each result is “comprised [of the] title of webpage, snippet of content, and hyperlink”.
“Australian court rules that link previews are not publishing” …perhaps?
I mean, it was brought up, but the opinion seems dismissive: “Unlike the position in Duffy, no feature of the content of the particular organic search result in the present case has been found to have operated as an enticement or encouragement to click on the hyperlink.” [¶71]
(Description of Duffy for reference: “Thus, in Google Inc v Duffy 91 with reference to Hird v Wood, the content of the snippet component of several Google search results was said to have been such as to "entice" a third party to click on the hyperlink in those search results to obtain more information. That was because the snippet component "naturally invite[d] the reader to click on the hyperlink for explanation and elaboration" of the matter 92 , such as to be aptly described as "the electronic analogue of the person who places a post-it note on a book which reads 'go to page 56 to read interesting gossip about X'" 93 .” [¶67])
(Description of Duffy for reference: “Thus, in Google Inc v Duffy 91 with reference to Hird v Wood, the content of the snippet component of several Google search results was said to have been such as to "entice" a third party to click on the hyperlink in those search results to obtain more information. That was because the snippet component "naturally invite[d] the reader to click on the hyperlink for explanation and elaboration" of the matter 92 , such as to be aptly described as "the electronic analogue of the person who places a post-it note on a book which reads 'go to page 56 to read interesting gossip about X'" 93 .” [¶67])
[deleted]
Is this the highest court in Australia? I'm from the UK and don't know the system there, but know some former colonies use the UK's privy council as their highest court. I'm guessing that's no longer the case, but if someone could clarify whether this ruling can be appealed I'd really appreciate it!
I remember talking to that guy who started watch simpsons online in 2009, 2010ish. He was sued to oblivion just because he linked to video hosts. A couple years later Megaupload was raided.
Wow. The world rotates clockwise down there, but somehow they still have their heads screwed on tight.
[PDF] in title please