In Silicon Valley, Google’s legal representatives will now be reinventing their business models, acquainting themselves with Australian defamation law and generally wincing, as for what seems to be the first time, a common law court has determined that, for the purposes of defamation, Google can be treated as a publisher of its search engine results.

The result seems to be this: once Google knows of a complaint of defamation, if it does not remove the offending material within a reasonable time, it can be treated as a publisher of that content.

Milorad Trkulja, still relatively fresh from a $225,000 win over Yahoo! in March 2012 (see here on Inforrm), has now come away from his jury trial against Google with a similarly emphatic win: $200,000 ([2012] VSC 533). This makes him one of the most successful defamation plaintiffs in the history of Australian law. Not bad.

The Facts

In December 2009, there was material on the internet about the plaintiff. He complained of two separate matters: the Images matter and the Web matter.

The Images Matter contained pictures of the plaintiff with gangland and criminal figures such as Tony Mokbel and an article, “Shooting probe urged November 20, 2007”. It also had a larger photo of the plaintiff and on this page, above the article was a heading “Melbourne Crime”. Under this heading there were nine photos of various people either known to have committed serious crimes or against whom serious criminal allegations had been made. On the other hand, the plaintiff had never been involved in any criminal activity. He had unfortunately, been shot in the back in a St Albans restaraunt in 2004.

The Web Matter was three pages, consisting of the first ten results under the search term “Michael Trkulja”, plus an article under the same heading with the same nine photos and the larger photo of the plaintiff.

Importantly, on 22 September 2009, the plaintiff’s lawyers wrote a letter of complaint to Google about the matters he complained of. It enclosed copies of material complained of and demanded that it be taken down by 28 September, but there was a problem showing what, if any material was attached to the letter. In any event, some time before 10 October 2009, a page of photos on a document headed “Google Images Michael Trkulja” was sent to Google Inc. These were photos of the plaintiff, Tony Mokbel and Dennis Tanner, and each were captioned “Michael Trkulja – Melbourne …. Melbournecrime Bizhosting”.

On 10 October 2009, an email was sent from which stated:

“At this time, Google has decided not to take action based on our policies concerning content removal. Please contact the webmaster of the page in question to have your client’s name removed from the page.”

At the trial, Google denied publication, denied the meanings were conveyed and asserted the defence of innocent dissemination, both at common law and under s.32 of the Defamation Act.

In terms of the notice Google received from the plaintiff, it did not call evidence from the person who made the decision to keep the material on the internet, or from the person who received the 22 September letter. Instead, it called a witness from its American office, who conceded that it would not have taken much to work out, from the page of photos supplied to Google, the identity of the website that linked the plaintiff’s name to Mokbel and Tanner. You only had to click on one of the images. Then at that point, it would have been open to Google to block the URL of that page from Google Inc’s searches, in compliance with the solicitor’s request.

The Jury Verdict

At the end of the trial, twenty-four questions were put to the jury and at the end of those, the upshot of their answers was this [11]:

  1. Google LLC had published the Images Matter;
  2. The Images Matter conveyed the following meaning that was defamatory of the plaintiff: “the plaintiff was so involved with crime in Melbourne that his rivals hired a hit man to murder him”;
  3. Google LLC made out its innocent dissemination defence, but only up until 10 October 2009 (not up to 31 December 2009, which rounded out the whole period of publication that was complained of);
  4. The Web Matter was published by Google LLC and conveyed the same defamatory meaning as the Images Matter;
  5. Google LLC made out its innocent dissemination defence for the whole period complained of, for the Web Matter.

So the plaintiff was entitled to damages for the Images Matter for the period between 11 October 2009 and 31 December 2009. But that was not the end of it. Google’s barristers immediately applied to the Judge to have the jury’s verdict set aside.

The Judge’s Findings

Google’s barristers aruged  that the jury could not have determined that Google was a publisher of the Images Matter.

That application was dismissed by Justice Beach. In the process of writing up reasons for that decision, His Honour touched on Google’s submissions and the issue of publication on the internet. His Honour rejected a number of Google’s arguments that had been run and won in England and distinguished a number of English cases on the basis that the issue of publication on the internet is “fact sensitive” [27]. His Honour concluded as follows:

  •  it was open to the jury to find that Google was a publisher of its search engine results, even before it had notice of the content of the material about which complaint was made: [18], [30];
  • the jury was entitled to conclude that Google intended to publish the material that its automated systems produced, because that was what they were designed to do upon a search request being typed into the search engine [18];
  • To say as a general principle that if an entity’s role is a passive one then it cannot be a publisher, would cut across principles which have formed the basis for liability in the newsagent/library type cases and also in those cases where someone with power to remove a defamatory publication chooses not to do so in circumstances where an inference of consent can be drawn.” [28];
  • To the extent that there is anything written in the judgments of Bunt v Tilley, Metropolitan Schools Ltd v Designtechnica Corporation and Tamiz v Google Inc that might be thought to compel the conclusion that on the facts of the present case it was not open to the jury to conclude that Google Inc was a publisher of either the images matter or the web matter, then the same does not represent the common law of Australia.” [29];
  • The question is whether, after relevant notice, the failure of an entity with the power to stop publication and which fails to stop publication after a reasonable time, is capable of leading to an inference that that entity consents to the publication. Such an inference is clearly capable of being drawn in the right circumstances (including the circumstances of this case). Further, if that inference is drawn then the trier of fact is entitled (but not bound) to conclude that the relevant entity is a publisher. Google Inc’s submission on this issue must be rejected for a number of reasons, the least of which is that it understates the ways in which a person may be held liable as a publisher.” [31].

Google also argued that it had established its innocent dissemination defence, but that was also dispensed with by His Honour and judgment was found for the plaintiff. In assessing damages,  His Honour concluded that the imputation was very serious and that a damages verdict needed to, among other things, “nail the lie” [53]. Also having referred to the Yahoo! judgment, and rejecting the plaintiff’s application for aggravated damages, His Honour awarded the plaintiff $200,000.

For now, the future for how Google should deal with Australian complaints is unclear. Whether the decision emboldens others to bring cases against the American giant (or Twitter and Facebook for that matter), should they refuse to take down defamatory matter, remains to be seen. In any event, Google will undoubtedly be considering its appeal options very very carefully.

This post was originally published on the Defamation Watch blog and is reproduced with permission and thanks