The High Court is set to consider whether Google is a publisher and whether autocomplete results are capable of being defamatory, after the court granted one of Victoria’s most persistent litigants special leave.
In November 2015, Trkulja had another win against Google Inc, after Justice Michael McDonald found Google was a publisher, even prior to receiving notice.
Google appealed, seeking to have Trkulja’s defamation action set aside because it had no real prospect of success.
In January this year, the Victorian Court of Appeal found for Google – as High Court Justice Nettle put it – “without the benefit of trial and a case involving issues which, to put it at the lowest, are novel”.
The Court of Appeal determined autocomplete predictions were incapable of being defamatory, based on Justice Malcolm Blue’s decision in Duffy v Google.
On June 16 this year, High Court Justices Geoffrey Nettle and Michelle Gordon heard argument about two critical media law issues pertaining to the internet – whether Google is a publisher and whether a matter is capable of being defamatory because of the way it is promulgated.
Trkulja’s counsel Paul Heywood-Smith QC put it this way:
“The Court of Appeal did not hear submissions from counsel as to the capacity of the actual material to be defamatory in the hearing of the appeal.
It, after the appeal, took upon itself on its own initiative the role of itself considering the material and forming its own views and bringing to bear the affidavit material as to the operation of the internet and search engines that were in the affidavits untested.”
Google’s counsel Dr Matt Collins QC disagreed that the Court of Appeal had dealt with the question of defamatory meaning of its own motion, telling the court:
“It was and it had always been a live issue, right from the time the application to set aside service out was commenced.”
Collins defined the central issue for determination to be “whether search results on their own without reference to underlying material are capable of founding a cause of action in defamation”.
An interesting exchange followed between Nettle (pic) and Collins:
MR COLLINS: As the Court of Appeal rightly says, there are only two hypotheses by which an intermediary such as Google could be liable for serving up defamatory search results.
One is on a principle of primary publication. We say that the Court is right to say that that is just not an apt analogy in the context of a computer-generated result which is entirely dependent on inputs from third parties: those who type the search results and the underlying material.
NETTLE J: That is the novel issue, is it not?
MR COLLINS: With respect, no. That must be right.
Why would Google, the operator of the algorithm which serves up search results as a result of something that third parties – those who type search terms – and fourth parties – those who create underlying material – be a primary publisher as opposed to a secondary publisher of the material.
Why is the analogy, as the Court of Appeal, we say, rightly says, not with secondary distributors rather than primary publishers?
NETTLE J: I rather think you would need to know more about the facts before you could come to a conclusion about that, because it is novel.
MR COLLINS: With respect, we say it is not. This is simply the modern equivalent of all of the other forms of non-primary publication.
“Secondary publication” might be a misnomer. But this is not a form of primary publication. No one in the authorities, apart from Justice Beach in Trkulja (No 5), has contemplated that an intermediary like Google would be responsible prior to notice.
The court granted special leave in respect of both the publication and defamatory meaning issues.
Reporter: Y.C. Kux
This post was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.