In June 2018, the Australian High Court granted Milorad “Michael” Trkulja the right to sue search engine giant Google for defamation.
Background
In 2012 Mr Trkulja successfully sued search engine giant Google for publishing defamatory contents. Mr Trkulja argued that his reputation was (falsely) brought into disrepute and his character defamed when Google published photographs of him in association with prominent crime bosses of Melbourne, in an era well-known for the notorious Melbourne Gangland killings. Google’s search engine results not only linked him with the likes of Tony Mokbel, Mario Condello, Dominic ‘Mick’ Gatto and Carl Williams, but that the “autocomplete prediction” function, that offers potential search suggestions prior to the user having finished typing included phrases such as “is a former hitman” and “underworld”. This, Mr Trkulja argued, imputed that he was a “hardened criminal”.
This decision was overturned in 2016 by the Victorian Supreme Court of Appeal where Google argued that Mr Trkulja would have no prospect at all of establishing that the images conveyed any of the defamatory imputations relied upon and that:
- The search engine results were not defamatory in nature. The same Google image results for Mr Trkulja conjure not only prominent Melbourne crime bosses but irrelevant and unrelated results such as movie posters and the actor Marlon Brando. Therefore, that it would be irrational for the reasonable man to conclude that the images conjured in a google image search for Mr Trkulja were all criminals;
- The images were not published; and
- Google was entitled to immunity from the claim.
Mr Trkulja subsequently appealed to the High Court. The High Court held that the Court of Appeal erred in concluding that the matters upon which Mr Trkulja relied were incapable of conveying any of the defamatory imputations pleaded by Mr Trkuljia and therefore erred in concluding that Mr Trkulja’s proceeding had no real prospect of success.
The High Court explained that it would be open to the jury at trial to conclude that an ordinary reasonable person using the Google search engine would infer that the persons pictured whose identities are unknown are persons, like the notorious criminals with whom they are pictured, in some fashion are opprobriously connected with criminality and the Melbourne criminal underworld. However, the High Court appeared to take the approach that the most obvious, logical connection between the terms of the search and the response is that those persons whose images or names appear in the response, under headings such as “Melbourne criminal underworld photos”, “Melbourne underworld crime” and “Melbourne underworld killings”, or at least some of them, are criminals or members of the Melbourne criminal underworld. The High Court further explained that some of the persons shown in the searches were plainly not criminals or members of the Melbourne criminal underworld. But in each of the pages on which images of such persons appear, there were images of persons who are notorious criminals or members of the Melbourne criminal underworld coupled with images of persons, such as Mr Trkulja, whose identity is relatively unknown.
The High Court’s decision to set aside the orders made at the Victorian Supreme Court of Appeal has opened the way for the substantive hearing as to whether Google will be liable for the defamation material to be determined.
About the authors:
James Tadros completed a Bachelor of Laws/Bachelor of Commerce degree in August 2015 from Murdoch University, WA. He was admitted as solicitor of the Supreme Court of Western Australia in 2016. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.
