Ben Coogan and Georgia Campbell

Underbelly of the internet: High Court finds Google search results may be defamatory

Ben Coogan and Georgia Campbell

14 June 2018

New Media

In December 2016, the Court of Appeal of the Supreme Court of Victoria summarily dismissed what was an unprecedented defamation action brought by Milorad Trkulja against Google Inc.

But, in a much anticipated decision,1 the High Court of Australia on Wednesday unanimously allowed Mr Trkulja’s appeal against the Court of Appeal’s decision, permitting Mr Trkulja to continue to prosecute his case against the search engine.

The case

Mr Trkulja brought proceedings against Google Inc alleging that the search engine’s publication of web and image search results, as well as predictions, in response to search terms including “melbourne criminal underworld photos” and “melbourne underworld criminals” was defamatory, because the results linked Mr Trkulja’s name and/or image with material concerning the Melbourne criminal underworld.

The imputations Mr Trkulja alleged were conveyed included that he was “a hardened and serious criminal in Melbourne” and that he was “a hardened and serious criminal in Melbourne in the same league as convicted murderer Carl Williams, hardened notorious underworld killer Andrew ‘Benji’ Veniamin, hardened and serious and notorious murderer Tony Mokbel and the Mafia Boss Mario Rocco Condello“.

Google Inc applied to have Mr Trkulja’s proceeding, and service of the proceeding, set aside, alleging that it had no real prospect of success, because:

  1. “Google is not a publisher; and/or
  2. The particular search engine results underpinning Mr Trkulja’s claim are not defamatory; and/or
  3. Google is entitled to immunity from suit.

After the primary judge (McDonald J) rejected its application, Google Inc appealed to the Court of Appeal of the Supreme Court of Victoria.

The Court of Appeal allowed Google Inc’s appeal, rejecting the proposition Google Inc was entitled to be immune and making no finding as to whether it was a publisher, but finding that Mr Trkulja’s proceeding had no real prospect of success and that it should be set aside, along with service of the proceeding.

Mr Trkulja appealed this decision to the High Court, and Google LLC was made the respondent to the appeal in substitution for Google Inc.

Decision to allow the appeal

In determining that McDonald J was correct to refuse to set the proceeding aside, the High Court made the following findings:

  • it was evident 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 opprobriously associated with the Melbourne criminal underworld” and the search results “had the capacity to convey one or more of the defamatory imputations alleged” (at [35]);
  • it was “strongly arguable” that Google was a publisher, as it had intentionally participated in the communication of the allegedly defamatory search results to Google users (at [38]);
  • the nature of the proceeding was such that summary determination of issues concerning publication or defences should not have occurred “at least until after discovery, and possibly at all” (at [39]);
  • the test of whether the publication may be defamatory should have been stated as “whether any of the search results complained of are capable of conveying any of the defamatory imputations alleged“, rather than whether “any of the defamatory imputations which are pleaded [are] arguably conveyed” as was put forward by the Court of Appeal (at [52]);
  • there was “no evidence … that it would have been apparent to an ordinary reasonable person using the Google search engine that Google made no contribution to the elements or combination of elements of those of the search results that convey a connection between Mr Trkulja and criminality” (at [59]); and
  • a search engine proprietor’s liability in cases such as this “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” (at [62]).

Overall, the High Court allowed the appeal and ordered that Google LLC should pay Mr Trkulja’s costs of the appeal.

Relevance of the decision

The High Court’s decision has allowed Mr Trkulja to now sue Google LLC for defamation (although it remains to be seen whether Google will be able to establish a defence of innocent dissemination).

This is an important decision as it indicates that search results can potentially be defamatory and that by intentionally participating in the communication of defamatory search results, a search engine proprietor could be found to be liable for the publication of such search results.

1 Trkulja v Google LLC [2018] HCA 25.