High Court allows defamation action against Google22 June 2018
The High Court of Australia has found that Google's autocomplete predictions, search results and images linking Melbourne man Milorad Trkulja to Melbourne underworld crime figures could potentially be defamatory. The autocomplete function generated by Google operates to suggest a phrase or word before a person has completed typing their search term. Mr Trkulja claimed that Google defamed him when it published photos of Melbourne crime figures in response to searches for his name and when its autocomplete function brought up phrases associated with the Melbourne underworld when search terms starting with his name was entered.
In an era where defamation increasingly occurs online, this decision is significant as it is the first time the High Court has considered the laws of defamation in relation to search engines.
In the Supreme Court of Victoria, Mr Trkulja claimed that Google defamed him by publishing images of Melbourne crime figures when a search was conducted for Mr Trkulja's name. Mr Trkulja also claimed that Google's autocomplete showed phrases such as "michael trkulja melbourne crime" and "michael trkulja melbourne underworld crime" when a search for "michael trk" was typed into the search function. According to Mr Trkulja, these search results and autocomplete predictions contained defamatory imputations that he is a hardened Melbourne criminal and in the same league as convicted murderers and underworld killers.
Google applied for a summary dismissal of the proceedings, including on the basis that it did not publish the images or the autocomplete predictions and the matters were not defamatory.
The Supreme Court of Victoria rejected the application.
Subsequently, the Court of Appeal found that MrTrkulja had no real prospect of success in establishing that the search results and autocomplete predictions were defamatory, so his claim was summarily dismissed.
The High Court's decision
In a unanimous judgment critical of the Court of Appeal's approach, the High Court found that at least some of the search results complained of had the capacity to convey defamatory imputations and for that reason, the proceedings should not have been summarily dismissed. It also considered that an internet search engine such as Google, through its active communication of search results, could be held to be a publisher in the context of defamation proceedings.
Is Google a publisher for defamation purposes?
According to the High Court, it is strongly arguable that by Google's intentional communication of the search results, Google published the alleged defamatory results. The High Court departed from the Court of Appeal's finding that a search engine like Google will almost always have the benefit of the defence of innocent dissemination, which is intended to protect people such as newsagents, booksellers and librarians from being liable for defamatory publications by someone else.
Considering the application of the law of publication with respect to internet search engines for the first time, the High Court noted that the application of the law in the novel context of internet search engines is complex and, given the complexity of issues relating to publication and search engines, the issues relating to publication and its possible defences should not have been summarily dismissed. These issues are now likely to be considered further when the case returns to the Supreme Court of Victoria.
Can search engines defame someone?
Again departing from the Court of Appeal's approach, the High Court stated that the test of whether a publication is defamatory is whether "any of the search results complained of are capable of conveying any of the defamatory imputations alleged", reaffirming that the question of what alleged defamatory words or images say or depict is a question for the jury at trial.
The capacity of a search result to convey a defamatory imputation is to be judged by reference to an ordinary person who has made the Google search in issue. According to the High Court, the relevant considerations to that question also include:
- a person's ability to navigate Google
- the extent of his or her comprehension of how and what Google produces, and
- the degree to which Google contributes to its content.
The High Court cautioned against the application of the law in novel contexts without the benefit of evidence that would have been adduced at trial, which was not available due to the summary dismissal of the proceedings by the Court of Appeal.
The High Court also rejected the Court of Appeal's reliance on an earlier case to find that the publication of image search results could not be defamatory, although an individual's image appears in searches for "criminal", "melbourne" and "underworld" because the image is found on a page containing those words.
The High Court recognised that the conclusions it had reached might mean a large and diverse list of persons could potentially be defamed, but considered that this meant no more than the search engine proprietors' liability ultimately would depend more on whether it could demonstrate it was an innocent dissemination of the material, than on whether that material was capable of defaming the complainant.
While this is the first time the High Court has considered the application of defamation law in relation to search engines, the High Court did not make any finding as to whether Google had defamed Mr Trkulja. That issue will now be considered by the Supreme Court of Victoria.
Search engines such as Google may be the publisher of defamatory material given their active role in the communication of search results but it may be possible for Google (and other search engines) to establish a defence of innocent dissemination. Many interested parties will be awaiting the next stage of this significant piece of litigation.