High Court says Milorad Trkulja can sue Google for defamation
Defamation June 13, 2018 3:21 pm By Christine Caulfield | Melbourne

The High Court of Australia ruled Wednesday that Google can be sued for defamation by a man whose image popped up in an internet search of ‘Melbourne criminal underworld’.

Rejecting the reasoning of the Victorian Court of Appeal, the High Court found that Milorad Trkulja, who was linked to criminals after he was shot in the back at a restaurant, had a case against the search engine giant.

Trkulja claims Google defamed him by imputing he is “a hardened and serious criminal in Melbourne” when it published his image next to those of “convicted murderer” Carl Williams, “underworld killer” Andrew “Benji” Veniamin, “notorious murderer” Tony Mokbel and “Mafia Boss” Mario Rocco Condello.

He also claimed Google’s autocomplete function on its search engine defamed him by linking his name with the Melbourne criminal underworld.

In siding with Trkulja, the High Court said that “at least some” of the search results could convey to reasonable people that he was “opprobriously associated with the Melbourne criminal underworld” and had the capacity to defame him.

“Whether or not the search results are viewed individually or as a composite does not affect that conclusion,” the High Court said, finding that the Court of Appeal, which summarily dismissed Trkulja’s case, had erred.

The High Court did not mince words in criticising the approach of the appeals court, which sided with Google in December 2016 without hearing evidence.

The appeals court had found that Milorad had no real prospect of success and that Google could be considered a secondary publisher but would be able to claim the ‘innocent dissemination’ defence up until it was notified of alleged defamation.

 

“That was not an appropriate way to proceed,” the High Court said. “In point of principle, the law as to publication is tolerably clear. It is the application of it to the particular facts of the case which tends to be difficult, especially in the relatively novel context of internet search engine results. And contrary to the Court of Appeal’s approach, there can be no certainty as to the nature and extent of Google’s involvement in the compilation and publication of its search engine results until after discovery.”

The appeals court was also incorrect to rule that it was up to Trkulja to plead that Google was a primary or secondary publisher of the allegedly defamatory material.

“If Google wishes to invoke the defence afforded to subordinate distributors’ by section 32 of the Defamation Act or otherwise contend that the degree of its participation in the publication of the impugned search results was such that it should not be held liable, it is for Google to plead and prove the relevant facts,” the High Court said.

In any case, it was “strongly arguable that Google’s intentional participation in the communication of the allegedly defamatory search results relating to Mr Trkulja to users of the Google search engine supported a finding that Google published the allegedly defamatory results”.

In rejecting the appeals court’s reasoning that the search results were not capable of defaming Trkulja because a reasonable internet user would not necessarily assume that every image that popped up on a search of Melbourne criminal underworld reflected those search terms, the High Court said the “extent of comprehension” about how Google contributes to the content that shows up in search results “may vary significantly”.

“To say that a user of the Google search engine would “inevitably give thought to just what relationship there could possibly be between the words inputted and the compilation produced” or “very probably perceive a disconnect between the images and the search terms” (emphasis added) does not gainsay that it would be open to a jury to conclude on the balance of probabilities that an ordinary reasonable person using the Google search engine would perceive the compilation to convey one or more of the defamatory imputations alleged.”

The High Court’s decision paves the way for Milorad to proceed with his case in the Victoria Supreme Court.

Google is represented by Ashurst.

Trkulja is represented by George Liberogiannis & Associates.

The case is Milorad Trkulja v Google LLC

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Christine Caulfield

Christine Caulfield has been a journalist for 18 years. She was most recently the Co-Managing Editor at US legal news publication Law360. Prior to that she worked as the County Court reporter for The Herald Sun. She is Co-Founder and Editor of Lawyerly.