13 June 2018

Google this: The High Court allows Google to be sued for defamation

This article was written by John Swinson, Priscilla Lal and Jordan English.

The High Court has today allowed an appeal from a decision of the Victorian Court of Appeal to set aside a defamation proceeding brought by Mr Trkulja against Google LLC. The High Court found that the Court of Appeal was in error in holding that the proceeding had no real prospects of success.

Background

Mr Trkulja commenced a defamation proceeding against Google, alleging that Google had defamed him by publishing defamatory matter between December 2012 and March 2014 to persons in Victoria. The matters alleged to be defamatory were:

  • Google images search results that displayed images of Mr Trkulja mixed with images of convicted Melbourne criminals such as Tony Mokbel, Carl Williams, Andrew “Benji” Veniamin, and Mario Rocco Conello, when search terms such as “Melbourne criminal underworld photos” or “Melbourne underworld crime” were entered into the Google search engine;
  • Google autocomplete predictions which were returned when the term “Michael trk" was inputted into the search engine. The autocomplete predictions included “Michael Trkulja criminal”, and “Michael Trkulja Melbourne crime”; and
  • Google web search results returned in response to terms entered into the Google search engine.

Mr Trkulja alleged that these matters were defamatory of him and carried a number of imputations, which included, that:

  • Mr Trkulja is a hardened and serious criminal in Melbourne;
  • Mr Trkulja is an associate of an underworld killer and an associate of notorious convicted criminal murderers and drug traffickers; and
  • Mr Trkulja was such a significant figure in the Melbourne criminal underworld, that events involving him are recorded on a website that chronicles crime in the Melbourne criminal underworld.

Mr Trkulja claimed damages, including aggravated and punitive damages, and an injunction against Google.

The originating process in this case was issued out of Australia on Google in the United States. The Supreme Court (General Civil Procedure) Rules 2005 (Vic) provided that a defendant could apply to set aside an originating process or its service. Google applied to have the proceeding set aside, and in order to succeed it needed to satisfy the same test that applies for summary judgment: namely, whether Mr Trkulja’s claim had “no real prospect of success”.

Decisions below

At first instance, Google argued that:

  • It did not publish (in the legal sense of that term) the impugned matters;
  • The matters in issue were not defamatory of Mr Trkulja; and
  • Google was entitled to a general immunity from suit.

The primary judge dismissed Google’s application.

On appeal, Google advanced the same three grounds. The Court of Appeal (in a judgment that spanned 400 paragraphs) found it unnecessary to decide whether Google was a publisher of the impugned matters and rejected the argument that Google was entitled to a general immunity from suit. However, the Court of Appeal held that Mr Trkulja “would have no prospect at all of establishing that the images matter conveyed any of the defamatory imputations relied upon” and that Mr Trkulja “could not possibly succeed in showing that the web matter upon which he relies carried any of the pleaded defamatory imputations”. 

High Court

The High Court unanimously allowed the appeal, holding that the Court of Appeal were in error in concluding that the matters relied upon were incapable of conveying any of the defamatory imputations pleaded and therefore in concluding that the proceeding had no real prospect of success.

Test for summary dismissal

The High Court emphasised, that on an application for summary dismissal, the plaintiff’s case as to the capacity of the publication to defame is to be taken at its highest. The Court noted, (contrary to the Court of Appeal’s reasoning), that “at least some of the search results complained of had the capacity to convey to an ordinary reasonable person viewing the search results that Mr Trkulja was somehow associated with the Melbourne criminal underworld, and, therefore, that the search results had the capacity to convey one or more of the defamatory imputations alleged”.

The High Court was also critical of the Court of Appeal’s approach to the matter. The Court stated:

“The Court of Appeal's judgment is of extraordinary length and complexity for the resolution of an appeal against dismissal of a summary disposition application in which the only real question was the capacity of the published matters to defame.”

Publication

The High Court concluded that the primary judge was correct to hold that it is “strongly arguable that Google's intentional participation in the communication of the allegedly defamatory results to Google search engine users supports a finding that Google published the allegedly defamatory results”. The High Court also noted that it was inappropriate for the Court of Appeal to proceed to make findings that Google was likely publisher of search results, but that an innocent dissemination defence will almost always, if not always, be available. The High Court pointed out that while the law of publication is clear, it is the application of it, particularly in the novel context of internet search engine results which is difficult.

Given the nature of the proceeding, the High Court took the view that it was inappropriate for the Court of Appeal to make findings on these issues when, without discovery, the nature and extent of Google’s involvement in the compilation and publication of search engine results could not be determined.

Capacity to defame

The Court of Appeal stated the test as whether “any of the defamatory imputations which are pleaded [are] arguably conveyed”. The High Court stated that this was the wrong test to be applied and the Court of Appeal should have asked “whether any of the search results complained of are capable of conveying any of the defamatory imputations alleged”. The High Court emphasised that the question of what the allegedly defamatory words or image say or depict is a question for the jury.

The High Court also held that the Court of Appeal were in error in treating the decision in Google v ACCC (2013) 249 CLR 435 as supportive of its conclusion that, although an image of Mr Trkulja may have appeared in responses to Google searches including the words “criminal”, “Melbourne”, and “underworld”, that was simply because those terms appeared in a webpage which contained that image, and for that reason, was not capable of conveying to the ordinary and reasonable user of a search engine the alleged imputations. That case had concerned whether Google had engaged in misleading and deceptive conduct by displaying “sponsored links”. Unlike the present case, there was evidence in that case that ordinary and reasonable users would have understood that the sponsored links were advertisements. There was no such evidence in this case which could persuade a court to the level of satisfaction necessary for a summary disposal of the action.

Despite the observation by the Court of Appeal that to find that the Google images results were capable of being defamatory might result in the list of persons potentially defamed being large and diverse, the High Court stated that this means “no more than that, in such cases, the liability of a search engine proprietor, like Google, may well turn more on whether the search engine proprietor is able to bring itself within the defence of innocent dissemination than on whether the content of what has been published has the capacity to defame.”

Takeaways

This is the first time the law of defamation as applied to search engine providers has reached Australia’s apex court. However, given the nature of the proceeding, the High Court did not make any concrete findings on whether Google is liable in defamation for its search results.

The High Court did, however, make clear that the law as to defamation, in particular as to publication, is “tolerably clear”. It is in its application to the novel context of search engine results that it becomes difficult. The Court’s judgment emphasises the need for evidence and a trial on these complicated factual issues before the application of the law can properly be determined.

The High Court has also reiterated, that the fact that the list of persons alleged to be defamed by an internet search engine could be large and diverse is not a reason to find that there is no defamation.

Relatedly, the High Court’s disapproval of the Court of Appeal’s reliance on Google v ACCC demonstrates the need to take care in taking statements about search engines in one context and applying them to another. Again, how an ordinary and reasonable user of a search engine would understand search results is a matter to be proved by evidence and what those search results mean is ultimately a question for the jury.

Ultimately, the question whether Google is liable for its search results in defamation remains to be determined by the High Court. At this stage, the High Court’s guidance on the issue is limited to it could be.

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