Case Law, Australia, Trkulja v Google LLC, The return of Trkulja, Episode IV – Justin Castelan

The Trkulja defamation franchise is into its fourth instalment, with the latest victory against the Google Empire coming with a stirring outcome arising from Mr Trkulja’s debut appearance in the High Court ([2018] HCA 25).

Previously in Trkulja v Google:

• in 2012, Trkulja won $200,000 damages against Google for publication of search results that linked him with the Melbourne criminal underworld;
• That year, Trkulja also won $225,000 for a similar claim against Yahoo!;
• In December 2012, Trkulja wrote to Google again and asked that it take down certain image results and autocomplete search predictions. For instance, Google published images of Trkulja alongside Melbourne criminal identities when people searched “Melbourne criminal underworld”. Further, when a person searched “Michael trk” on Google, up would come search predictions like “michael trkulja criminal”, “michael trkulja Melbourne crime” and “michael trkulja underworld”;
• In January 2013, Google removed links to some websites and, without admission, it blocked certain autocomplete predictions and search queries relating to Mr Trkulja. It declined however, to remove the images of Mr Trkulja which appeared.
• Subsequently, Trkulja sued Google again in the Victorian Supreme Court.

The first step was that Google immediately applied to set aside the proceeding on the basis that Trkulja had no reasonable prospects of success. The application came on before His Honour Justice McDonald in 2015. Google ran three arguments:

1. It did not publish the matter complained of;
2. The matters were not defamatory of Trkulja; and
3. Google was entitled to immunity from suit for public policy reasons.

Justice McDonald rejected all of Google’s submissions and the application to strike out was dismissed.

However, fans of the Trkulja franchise will recall Episode III: The Google Empire Strikes Back. In that episode, Google appealed Justice McDonald’s decision to the Court of Appeal of the Supreme Court of Victoria, and three judges wrote a judgment where the appeal was allowed and Trkulja’s claim against Google was summarily dismissed.That appeared to spell the end of the Trkulja.

The defendant was content with the outcome of Episode III

Google was essentially successful because the Court of Appeal concluded that the images of Mr Trkulja could not be defamatory of him, being thumbnail photos of him alongside some Melbourne criminals, but also intermingled with 15 pages of photos of other people, including: actors, politicians, lawyers and a tram. The Court of Appeal concluded that no reasonable user of the internet would understand that publication of those images to mean that Mr Trkulja was a “hardened and serious criminal in Melbourne”. It also concluded that Google’s autocomplete results themselves could not convey defamatory meanings. The Google Empire succeeded.

But Trkulja was not finished. He appealed to the High Court. Episode IV. Five judges of the High Court heard the application and have unanimously agreed that the Court of Appeal was wrong. Very wrong. And too long and complicated [36], and “unacceptable” [52]. As for Justice McDonald at first instance, he was completely right. Essentially:

• It was strongly arguable that Google’s intentional participation in the communication of the allegedly defamatory search results relating to Mr Trkulja to users of the Google search engine supported a finding that Google published the allegedly defamatory results. The High Court held that was correct at [38];
• The inclusion of Mr Trkulja’s image in the search results for “Melbourne criminal” could also be defamatory, regardless that it was bundled in with many other images. That was a matter for trial; and
• Google should not be immune from suit as a matter of public interest.

The High Court dealt with the Court of Appeal judgment swiftly and brutally. The five High Court justices unanimously made the following comments:

• “… And contrary to the Court of Appeal’s approach, there can be no certainty as to the nature and extent of Google’s involvement in the compilation and publication of its search engine results until after discovery…. Given the nature of this proceeding, there should have been no thought of summary determination of issues relating to publication or possible defences, at least until after discovery, and possibly at all.”[39]
• the test is: “whether any of the search results complained of are capable of conveying any of the defamatory imputations alleged.” Ultimately, that is a matter for trial. Not a matter for summary disposition.
• The search results were capable of conveying the meanings pleaded by Trkulja. As set out at [60]: “And prima facie, 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 concluded that even if the list of persons potentially defamed by 15 pages of image search results might be large and diverse (as relied upon by the Court of Appeal to justify its conclusions), that was not the point. The conclusion was still sound. It is arguable and that is a matter for trial.

In one final fling, perhaps as an act of desperation, Google relied on at least one other search result for Mr Trkulja. At [65], the High Court referred to this: “on page three, a ‘snippet’ of a webpage which, under the heading, ‘Trkulja v Yahoo! – Defamation Watch” …… well that was never going to work.

All in all, this is the first time the High Court has considered internet publication since 2001 in Gutnick v Dow Jones. The important conclusions to take from the judgment appear to be these:

• the High Court has upheld Justice McDonald’s decision that it is strongly arguable that Google is a publisher of its search engine results. This is also an affirmation of the decision by Justice Beach in Trkulja’s first win against Google in 2012. Ultimately, it is a matter for trial and depending on what type of defences Google might plead, it could also be a matter for discovery of documentation by Google of its processes as to publication;
• the High Court has held conclusively that Google’s search results (whether text or image) and autocomplete search predictions, can arguably be defamatory and are matters for trial. The fact that there are many other search results (particularly images) is beside the point.

Both of these are likely to have enormous consequences for Google and other search engines in Australia. Any summary judgment application brought by Google moving forward would appear likely to fail. It will also be exposed to significant discovery obligations if it chooses to put publication in issue, or depending what other type of defence it might raise.

Meanwhile, like all good movie franchises, they end with a victory, but also with a short teaser for the next episode that is already in the works. Nothing is ever resolved. Mr Trkulja will return to the Supreme Court of Victoria for another trial next year in Episode V, and this time, Disney might want to buy the rights….

This post originally appeared on the Defamation Watch blog and is reproduced with permission and thanks.