By Katarina Klaric, Principal, Stephens Lawyers & Consultants
The on-line dissemination of defamatory material can go viral and result in significant reputational damage to individuals and businesses. Internet search engines such as Google, Bing and Yahoo further disseminate such material on their websites in search results. Search engine proprietors have sought to exclude their liability for publication of defamatory material as a part of search results.
The High Court in Trkulja v. Google LLC.[13 June 2018][i] has cleared the way for defamation proceedings against search engine proprietors. The court has confirmed that search engine proprietors will not be relieved from liability from being sued for defamation where search results publish defamatory material. The High Court has also confirmed that the range and extent of defences provided under the Defamation Act 2005 (Vic) militate heavily against the development of common law search engine proprietor immunity, sought by Google[ii].
The High Court in Trkulja v. Google LLC. overturned the Victorian Court of Appeal decision that summarily dismissed a defamation proceeding commenced by Mr Trkulja against Google for the publication of various on-line search results and Google images which Mr Trkulja claimed defamed him.
Background to High Court Decision
Mr Trkulja commenced the defamation proceeding in the Supreme Court of Victoria after sending letters to both Google and Google Australia on about 3 December 2012, drawing to their attention the allegedly defamatory matters, and demanding removal of the material or removal of links from their computer and servers linking or directing internet users to the material and that a block be put on Mr Trkulja’s name from their computers and servers. Google Australia’s response to the letters was that it could not assist as the matter related to “search products” owned by Google Inc. Google Inc. provided a detailed response to Mr Trkulja on 16 January 2013, removing and/or blocking some of the material complained of. Google, however declined to remove images of Mr Trkulja which appeared in response to other image searches using the Google search engine[iii].
Mr Trkulja claimed damages including aggravated and punitive damages on the basis of Google’s knowledge of the falsity of the imputations since at least 3 December 2012, and refusal to accept any responsibility for the publication of the allegedly defamatory publications. Mr Trkulja also sought an injunction against Google requiring Google to permanently block the Google images and website searches of his name from its computers and servers and to remove all links.
Google Inc. (now Google LLC) in response to Mr Trkulja’s claim, made an application for summary dismissal of the proceedings on the basis that:
(i) Google did not publish the images matter or the web matter;
(ii) The matters in issue were not defamatory of Mr Trkulja;
(iii) Google was entitled to immunity from suit as a matter of public interest.
McDonald J, dismissed Google’s application for summary dismissal on all grounds. In relation to Google’s claim for immunity from suit, McDonald J. observed that the range and extent of defences provided under the Defamation Act (Vic) militated heavily against the development of a common law search engine proprietor immunity, sought by Google.
Google appealed to the Victorian Court of Appeal and advanced the same three grounds for summary dismissal of Trkulja’s defamation claim. The Court of Appeal upheld the second ground ruling that Mr Trkulja had no prospects at all of establishing that the on-line material complained of conveyed the defamatory imputations claimed and summarily dismissed Mr Trkulja’s claim. The Court of Appeal rejected Google’s search engine immunity claim.
Mr Trkulja appealed to the High Court. The High Court overturned the decision of the Victorian Court of Appeal, holding that the appeal court erred in concluding that the matters upon which Mr Trkulja relied were incapable of conveying any defamatory imputations claimed and therefore erred in holding that Mr Trkulja’s proceedings had no prospects of success[iv].
Implications of High Court Decision
The High Court decision Trkulja v. Google LLC., has cleared the way for defamation proceedings to be pursued against search engine proprietors such as Google, Yahoo and Bing, without being subjected to applications to have the proceedings dismissed summarily before any defence is filed, discovery has been completed and evidence has been heard and tested at trial.
The High Court in Trkulja v. Google LLC. made a number of observations as to the appropriate procedures for dealing with defamation cases involving the publication of search results by search engine proprietors. In summary these include:
1. Given the nature of defamation proceedings it is not appropriate to have a summary determination of issues relating to publication or possible defences, at least until after discovery or possibly at all[v].
2. There is no requirement to plead that Google or other search engines are primary or secondary publishers of the defamatory material. The degree of participation in the publication of the alleged defamatory matters by search engine proprietors, such as Google, does not have to be specified in the pleaded claim[vi].
3. If Google or other search engine proprietors wish to rely on the defence afforded to “subordinate distributors” by section 32 of the Defamation Act, or otherwise argue that their participation in the publication in the search results was such that they should not be liable, then this should be pleaded in the defence and proven by the relevant facts[vii].
4. The test for assessing the capacity of search results to defame, is whether any of the search results complained of are capable of conveying the alleged defamatory imputation, and not whether “any of the defamatory imputations which are pleaded [are] arguably conveyed”, as stated by the Court of Appeal[viii].
5. The capacity of search results to convey the alleged defamatory imputations can be judged by reference to the “ordinary reasonable user of a search engine” in the same way that the “capacity of a newspaper article to defame is judged by reference to the standards of an ordinary reasonable reader” provided that hypothetical ordinary reasonable person is understood to mean “an ordinary reasonable person who made the [Google] search result in issue”[ix].
6. Subject to evidence to the contrary, it can be assumed that:
a) an ordinary reasonable user who uses search engines to make a search contemplates that the search results will have some connection to the search term used.
b) the ability to navigate the search engine and the extent of comprehension of how and what the search engine produces, where and how it derives or contributes to content, may vary significantly amongst persons taken to be representatives of the hypothetical reasonable users[x].
7. The question of law of whether the standard knowledge and comprehension of search engine users of the processes involved should be taken at some hypothetical midpoint in the range of understanding is still to be authoritatively determined by the courts. This question may require separate consideration of the standards of knowledge and comprehension of the different users ranging from first time to experienced and what imputations that particular class of user would attribute to the search results in issue[xi].
However, the High Court decision does not remove the practical complexity of dealing with a United States based company, like Google LLC in having defamatory material removed from its websites, taking court proceedings for defamation and enforcing an Australian judgement in the United States, if successful.
Google Australia, a related company, has continued to maintain its position that it is not the search engine proprietor or operator, it does not participate in the publication of search results and is not liable for the publication of any of the defamatory search results.[xii].
[i] Milorad Trkulja (Aka Michael Trkulja) v. Google LLC HCA 25.
[ii] Ibid, 
[iii] Ibid, - 
[iv] Ibid, 
[v] Ibid, 
[vi] Ibid, 
[vii] Ibid, 
[viii] Ibid, at , also see -  “Assessing capacity to defame”.
[ix] Ibid, 
[x] Ibid, , Also see 
[xi] Ibid, 
[xii] Defteros v Google Inc LLC & Anor (2017) VSC 158
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Copyright: © August 2018, Stephens Lawyers & Consultants