Defamation Update: Google under fire again


Another day, another defamation case about Google search engine results. This time, it’s the High Court which gave Google the thumbs down in the Michael Trkulja v Google saga. This decision isn’t the end of the story though.

It started in 2009 when Google searches for “Michael Trkulja” started returning images of him and known criminals in the same results along with headings like “Melbourne Crime”. Google tried to argue innocent dissemination, but Trkulja was successful in his defamation claim. Google didn’t appeal.

The problematic search results continued though, with Google’s autocomplete function now offering words like “criminal” and “underworld” after Trkulja’s name and searches for “Melbourne criminal underworld” returning images of him. Google agreed to block the autocomplete predictions but wouldn’t remove the images. Trkulja commenced a new defamation claim.

This time Google tried to have the case thrown out early, arguing (among other things) that it wasn’t a “publisher” and that the search results weren’t defamatory anyway. The trial court rejected all that and took Trkulja’s earlier success into account, finding his case was arguable and should be allowed to continue.

Google appealed. The appeal court flipped and said Google’s search results weren’t capable of being defamatory, meaning Trkulja’s case was bound to fail.

Trkulja took that to the High Court, which said the appeal court got it wrong. The High Court had some other stuff to say too.

Google was mistaken to argue that reasonable internet users were aware of the unpredictable results often generated in image searches. Ordinary Google users would likely contemplate that the results had at least some connection to the search terms they entered.

It didn’t matter that some of the other images returned by the search were also of noncriminals (like Marlon Brando, a police commissioner and a tram). Trkulja wasn’t well known and could still be mistaken for a criminal, whereas the other non-criminals were obvious (especially the tram).

The High Court agreed with the trial judge that it was strongly arguable that Google was a “publisher” and, where Google hadn’t even filed a defence, it was premature of the appeal court to take the view that innocent dissemination would succeed.

What’s next? It’s back to the trial court again for Trkulja and Google to continue preparing the case for final hearing. The saga continues.

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