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High Court allows Google defamation suit to proceed

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Just as the hangover subsides from the media frenzy over Rebel Wilson’s landmark defamation case against Woman’s Day, the High Court of Australia has served up hair of the dog with a defamation ruling of its own. Handed down on the 13th of June, Trkulja v Google LLC [2018] HCA 25 unanimously reversed a decision of the Victorian Court of Appeal and allowed Milorad Trkulja to continue his suit against the search engine giant.

Mr Trkulja took exception to Google’s autocomplete results associating his name with words such as ‘criminal’ and ‘underworld’ and image searches juxtaposing him with convicted criminals and gangland figures. He claims these results were defamatory and that Google was their publisher.

Fortunately for our legal livers we’re not likely to see the full ramifications of this decision just yet. All the High Court’s ruling amounts to is that the Court of Appeal was wrong to dismiss Mr Trkulja’s application as having “no real prospects of success”, meaning he hasn’t won so much as the High Court decided it’s not a hopeless waste of time for a court to at least hear the case. 

If (or when) the case returns to court for a full hearing, some interesting questions will be decided and no doubt appealed again: to what extent do Google and its algorithms ‘publish’ information by returning autocomplete predictions and search results? Are such results capable of being defamatory? Will Google successfully raise innocent dissemination as a defence? What will the courts consider the “reasonable search engine user” knows about the technology and processes of a search result?

It will also be interesting to see how the decision will relate to Google Inc v Duffy [2017] SASCFC 130; (2017) 129 SASR 304 (‘Duffy’). In Duffy, the Full Court of the South Australian Supreme Court found that Google was a publisher of defamatory materials because it reproduced, in search result extracts and autocomplete results, defamatory materials from another website. Even though in Mr Trkulja’s case Google’s results are still a consequence of the other material available on the internet, there might be a key difference in that he is claiming the search results themselves, through juxtaposition and association, defame him rather than by reproducing another’s imputations. As a result, this case doesn’t treat search engines as a mere conduit but squares up more directly with what they are, what they do and how they provide information.

But more interesting than the legal questions might be the broader impact the answers will have on search engine providers socially and politically. Google, for example, has raised the idea that search engines should be given legislative immunity. It might also be a big step in public conversations about privacy – the European Union, for example, already has a ‘right to be forgotten’ which protects personal information from perpetual existence on the internet (even if it isn’t necessarily defamatory).

Finally, some water after this defamatory bender: the High Court’s decision is also notable for its sharp rebuke to the way the Court of Appeal decided an application for summary judgment. Not only did the High Court label some of the Court of Appeal’s conclusions as ‘unacceptable’, but was troubled by the “extraordinary length and complexity” of a determination for summary judgment. It is implicit in the High Court’s ruling that if a decision wades into “a broad tract of the law” and extends to “substantial, proleptic analysis” then it's likely beyond the point of summary judgment and would benefit from discovery, cross-examination and, if required, a jury. While such language is unusually strong, don’t expect much interest in the case’s sensible deference to procedure.

The full text of Trkulja v Google LLC is available on Westlaw with digest summaries available on FirstPoint. Also keep your eyes peeled for headnotes in the Australian Law Journal Reports and Commonwealth Law Reports, published by Thomson Reuters.

By Stefan Skopelja
Legal Editor, Cases Team

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