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Judgment handed down in Google Inc v Trkulja

20 December 2016

Milorad Trkulja brought a proceeding for defamation against Google Inc, a company incorporated in the USA. Service of the proceeding having been effected upon it in that country, Google applied to set aside the proceeding and service on the ground that the proceeding had no real prospect of success. That application was dismissed by a Supreme Court judge, but was successful on appeal, reasons being delivered by the Court of Appeal today.

The plaintiff sued Google as the provider of an internet search engine. He pleaded that when search terms such as ‘Melbourne criminal underworld photos’ and ‘Melbourne underworld criminals’ were inputted into the images and web search function of the search engine on a number of occasions in 2012 and 2013, images, text and autocomplete predictions were returned which were defamatory of him. He did not seek to rely on the text of any web page from which any of the images were drawn, nor upon any content of any hyperlinked web page identified by the text results.

Google contended that, for two reasons, the plaintiff’s case had no real prospect of success, notwithstanding that this was a demanding test for it to satisfy. First, it could not be held to be the publisher of the results, which were produced by the automated operation of a vast search of the worldwide web in accordance with algorithms developed by it; those results, and the autocomplete predictions, being simply a word-related response to the words inputted by the searcher. Second, the search results were incapable of being found to be defamatory of the plaintiff.

The Court of Appeal held that, as the case was pleaded and argued by the plaintiff, Google could not be held to be the publisher of the allegedly defamatory matter; the plaintiff could have formulated his case in a way which would have enabled a finding that Google had published that matter, but he had not done so.

The Court of Appeal further held that the matter upon which the plaintiff sued was not capable of conveying any of the pleaded defamatory meanings.

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NOTE:  This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons.  The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

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