The recent High Court judgement of Trkulja v Google LLC [2018] HCA 25 provided further guidance on the law of defamation in the cyber-age. The facts surrounding the case involve a suit against Google by the applicant, Milorad ‘Michael’ Trkulja, who alleged that Google had defamed him by insinuating that he was a criminal through automated searches and results. Whilst the case is important as it revolves around the issue of the internet the High Court’s reasoning shows that old principles can be adapted to new situations and that reactionary calls for law reform in this area may have underestimated the adaptability of the common law.
The allegation stemmed from 2 separate Google searches and results. The first being an images search of ‘melbourne criminal underworld photos’, which showed the applicant to be intermingled with images of notorious criminals including Tony Mokbel and members of the Moran family. And the second was predictions by Google’s autocomplete function; after users began typing in Mr Trkulja’s name predications appeared on the search bar including ‘michael trkulja melbourne underworld crime’ and ‘milorad trkulja criminal’. The claim turned on the presentation of words and images generated in the search themselves.
At the heart of this important and contentious topic were 2 important legal issues:
- Was Google a publisher for the purposes of defamation law?
- Whether search results are capable of being defamatory.
At first instance McDonald J concluded that it was ‘strongly arguable’ that Google was a publisher and that it was easily arguable that the search results themselves conveyed defamatory imputations. The Court of Appeal allowed Google’s appeal on the ground that search results were not capable of conveying any defamatory imputation and that Google was indeed a publisher albeit a ‘secondary publisher’. What is curious to note was that the court held that the defence of innocent dissemination would almost always be available to a Defendant in cases like these.
The High Court unanimously allowed Mr. Trkulja’s appeal holding that search results were clearly capable of conveying defamatory imputations and, contrary to the Court of Appeal’s reasoning, a search engine user would assume that there was some connection between the terms of the search and the contents of the results displayed. The question of whether the court felt Google was a publisher was left open by the court but did make comments to the effect that there was a strong argument that this was indeed the actual case.
Since the appeal was from a summary dismissal there was no obligation on the High Court to come to any conclusion about whether Google necessarily is a publisher or whether search results could constitute defamation. Despite this the judgment in Trkulja still remains significant because it shows the Court’s reasoning in developing a jurisprudence for what could be a rather burgeoning area in the years to come. The High Court has taken cue from courts elsewhere where the trends have suggested that a court would rather look at technological change as a factual problem as opposed to one requiring the assistance of external legislation or activism from the bench.
