High Court reinstates Google case

Three Victorian Appeal Court judges used their legal experiences rather than "ordinary, reasonable" people's views to decide if Google search results were defamatory, five High Court judges have ruled.

They said the Vic Appeal Court (AC) was wrong to summarily dismiss a defamation case against Google LLC. "There should have been no thought of summary determination of issues relating to publication or [Google's] possible defences, at least until after discovery and possibly [not] at all," the High Court (HC) said.

The HC was told Melbourne man Milorad (Michael) Trkulja sued Google in 2014 after it refused to intervene when internet searches of his name repeatedly linked him to images that conveyed imputations he "is a hardened and serious criminal in Melbourne", in the same league as figures such as convicted murderer Carl Williams, underworld killer Andrew "Benji" Veniamin, "notorious murderer" Tony Mokbel and "mafia boss" Mario Rocco Condello; an associate of Veniamin, Williams and Mokbel; and "such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a website that chronicles crime in [the] Melbourne criminal underworld".

It also linked to sites that accused Mr Trkulja of being a hitman for criminals. Google tried to have the case dismissed claiming it did not publish the images or the "web matter"; the matters in issue did not defame Mr Trkulja; and Google was entitled to immunity.

Initially, Vic Supreme Court Justice Michael McDonald ordered a trial to proceed.

Google appealed and on December 20, 2016, Vic Chief Justice Anne Ferguson and AC Justices Stephen McLeish and David Ashley overturned Justice McDonald's ruling, finding Mr Trkulja "would have no prospect of establishing the [search results were] defamatory [and] could not possibly succeed in showing the web matter carried any defamatory imputations".

HC Chief Justice Susan Kiefel and Justices Virginia Bell, Patrick Keane, Geoffrey Nettle and Michelle Gordon said the Vic AC's approach to considering web search defamation was "not an appropriate way to proceed".

They said the AC's judgement was "of extraordinary length and complexity", considered broad tracts of defamation law, "proleptic juridical analysis", search engine publication defences, and the "how and why" of computer search engine social utilities.

But the "only real question" the AC should have considered was the search results' capacity to be defamatory to an ordinary, reasonable person.

"The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience," the HC ruled.

The AC erred because the judges considered the search results as lawyers, arguing defamation could not hold because some not all results implied Mr Trkulja had criminal connections. The HC said that reasoning was flawed because it judged the case on what experienced legal practitioners considered defamatory.

"The question is not what the allegedly defamatory words or images say or depict but what a jury could reasonably think they convey; and that is often a matter of first impressions," the HC said.

"The ordinary, reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. [They] may read between the lines in the light of general knowledge and experience [and] draw implications much more freely than a lawyer, especially derogatory implications."

The HC said Mr Trkulja's statement of claim "conveys that each search and the result which appeared in response to it are to be considered together but separately from each other separate search and response, [because] each search may have been conducted by a different person without engaging in any of the other searches".

"It is evident that at least some of the search results complained of had the capacity to convey to an ordinary, reasonable person that Mr Trkulja was somehow opprobriously associated with the Melbourne criminal underworld and, therefore, the search results had the capacity to convey one or more of the defamatory imputations alleged. Whether or not the search results are viewed individually or as a composite does not affect that conclusion," the HC found. 

The HC ordered Google to pay Mr Trkulja's AC and HC costs.

Trkulja v Google LLC [2018], HCA 25, 13/06/2018