Defamation Down Under

Everyone has Googled themselves at some point. But few do so and find that their search results link them to the criminal underworld…

A recent case heard by Australia’s highest court considered what responsibility Google has for the search results it produces.

An Australian Milorad Trkulja found that Google searches for Melbourne criminal underworld photographs brought up his image alongside infamous criminals and gangland figures.

This association may have come about because Trkulja an entertainment promoter, was shot in the back in 2004 in a crime that was never solved.

In 2012, he sued Google for defaming him with material which he said implied he was a major crime figure in Melbourne and had been the target of a ‘professional hit’.

He had earlier won damages from Yahoo in a case based on a similar cause of action.

Google denied publication, arguing it had innocently disseminated material published by others but Trkulja was successful in his claim.

He then launched further proceedings against Google about images and text that he said continued to link him to underworld figures.

A state appeal court ruled in favour of Google in December 2016, but Australia’s High Court upheld an appeal by Trkulja last month, allowing a new defamation action to be brought by him this summer.

This case is ongoing and will turn on whether, as Google argues, its search results can only ever be a reflection of the content and information that is available online or, whether these results come about because of a deliberate architecture on the part of the search engine.

If Trkulja wins, then Australia’s highest court will have accepted that the sites in Google’s search results are ultimately controlled by Google and not by those sites’ webmasters. It will have accepted that Google holds ultimate responsibility for showcasing information and that even if you are the publisher of the material, Google is still culpable for its promotion.

The court’s eventual findings will be fascinating in determining what capacity Google has to be a publisher of defamatory material and whether search results and auto predict functions can be capable of conveying defamatory imputations.

It will also be illuminating in terms of determining what a “reasonable user” of Google could be. It’s difficult to imagine people not being familiar with the search engine but there will be first-time users. For the purposes of defamation, should their limited standard of knowledge and comprehension about the online tool be taken into account when considering how they would view an individual’s search results?

Ultimately, it will be other search engines and competitors of Google who will be most interested in the outcome of this case but jurisdictions across the world will be taking notice.

The full judgment of the High Court of Australia is available here.

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