[ponco]

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?

[YPPH]

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.

[cwillu]

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.

[cwillu]

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?”