Mitch Clarke, ‘Courting Communication Anachronisms: Trkulja v Google [2017] HCATrans’ (30 November 2017).

The High Court has allowed an appeal against a decision of the Victorian Court on Appeal on whether a search engine can be held liable for defamation from the results of a search. The appellant sued the respondent search engine company after results of searches such as ‘Melbourne criminal underworld photos’ showed images of him with various convicted Melbourne criminals, as well as articles and links which imputing he was associated with those criminals. Moreover, typing his name into the search bar led to autocomplete results that associated him with various criminal figures. The defendant sought to summarily dismiss the pleadings on the basis that (i) that it did not publish the images matter or the web matter; (ii) that the matters in issue were not defamatory of Mr Trkulja; and (iii) that Google was entitled to immunity from suit. The trial judge held that the appellant’s defamation proceeding should not be set aside. However, on appeal to the VSCA, it was held that the primary judge should have struck the case out on the second basis that the search results could not be defamatory because the results were produced by algorithm, and because a reasonable internet user would understand that the plaintiffs’ images appeared alongside other, clearly non-criminal, people.

The High Court set aside the VSCA’s findings. In a unanimous judgment, Kiefel CJ, Bell, Keane, Nettle and Gordon JJ dealt with two issues: the question of whether Google was a publisher (and the relevance of defences in that determination), and the question of the test for whether the search results were capable of conveying the defamatory imputations.

In relation to the question of publication, McDonald J was correct to hold that Google’s intentional participation in the communication of the allegedly defamatory results supported a finding that Google published the allegedly defamatory results (at [38]). The VSCA had purportedly made a determinative finding of mixed fact and law that a search engine proprietor was a publisher of search results, but had said that that an innocent dissemination defence would almost always be maintainable in a period before notification of an alleged defamation. The VSCA should not have summarily dismissed the matter on the bases of issues relating to publication or possible defences, at least until after discovery, or possibly at all (at [39]).

Secondly, at least some of the search results could convey to an ordinary reasonable person that the appellant was associated with the Melbourne criminal underworld, and, therefore, the search results potentially conveyed one or more of the defamatory imputations alleged (at [35]). It was said at [52] that ‘the test of capacity of a published matter to defame is, in this case, whether any of the search results complained of are capable of conveying any of the defamatory imputations alleged.’ This was contrasted to the VSCA’s stated test which was whether ‘any of the defamatory imputations which [are] pleaded were arguably conveyed.’ The VSCA’s test ran the risk of determining the matter according to what the court thought the images or words conveyed, rather than what a reasonable jury could think that they could reasonably convey. This case was contrasted with Google Inc v Australian Competition and Consumer Commission [2013] HCA 1 (‘ACCC case’) at [56] – [60]. In that case, it had been held that Google was not responsible for the misleading and deceptive content of ‘sponsored links’, which respond to the search term by producing sites from advertisers who paid Google an amount each time a user clicked on the sponsored link. Instead this case involved links to webpages ranked in order of relevance to the user’s search, and at [59], it was said that there was no evidence that it would have been apparent to the ordinary reasonable person that Google had not contributed to the search results. By contrast the content of misleading and deceptive ‘sponsored links’ in the ACCC case had clearly been attributed to the advertisers. While the list of persons who might potentially be defamed by a search engine was large, ‘the liability of a search engine proprietor, like Google, may well turn more on whether the search engine proprietor is able to bring itself within the defence of innocent dissemination than on whether the content of what has been published has the capacity to defame’ (at [62]).

As a result of these findings, the VSCA had erred in concluding that the proceeding had no real prospect of success as the matters of which the defendant complained were capable for conveying the defamatory imputations alleged.