Milorad Trkulja succeeded in suing Google Inc for defamation and was awarded $200,000.  It has been widely reported (here, here and here) and has been the subject of commentary (here ).  Beach J’s decision in Trkulja v Google Inc LLC & Anor (No 5) [2012] VSC 533 is a valuable addition to the growing jurisprudence of defamation on the internet.

FACTS

During 2009 material identifying the plaintiff was located on the internet, and available for downloading and viewing in Australia.  The material was divided into two groups:

1. four pages of which the first page had pictures of the plaintiff, Tony Mokbel and Denis Tanner and underneath each of these pictures was the name “Michael Trkulja”. The third page included an article headed “Shooting probe urged November 20, 2007” with a larger photograph of the plaintiff with a heading above the article titled “Melbourne crime”. Under this heading there were nine photographs of various people either known to have committed serious criminal offences or against whom serious criminal allegations had been made [2].
2. three pages of which the first page consisted of the first ten results of 185,000 results for the search term “Michael Trkulja” with the third page consisting of the article under the same heading with the same nine photographs and the larger photograph of Mr Trkulja [3].

The plaintiff pleaded following imputations that:

(a) the plaintiff was a prominent figure in the Melbourne criminal underworld [5];

(b) the plaintiff was so involved with crime in Melbourne that his rivals had hired a hit man to murder him [5];

(c) the plaintiff was such a significant figure in the Melbourne criminal underworld that events involving him were recorded on a website that chronicled crime in Melbourne [5].

(d)The plaintiff was a hardened and serious criminal in Melbourne, in the same league as Tony Mokbel, an alleged murderer and a drug trafficker, and Denis Tanner, an alleged murderer [6]

 The defendants, at [8]:

1. denied publication,
2. denied that the meanings alleged by the plaintiff,
3. put in issue the extrinsic facts relied upon by the plaintiff to support the true innuendo claims, and
4. pleaded defences of innocent dissemination at common law and pursuant to s 32 of the Defamation Act 2005.

The jury found, at [12]:

1. the plaintiff had an entitlement to damages against Google Inc in respect of the images matter for publications between 11 October 2009 and 31 December 2009;
2. the plaintiff established the defamatory imputation that “the plaintiff was so involved with crime in Melbourne that his rivals had hired a hit man to murder him”.
3. the plaintiff’s case against Google Australia failed on the issue of publication.
4. the plaintiff’s case against Google Inc, in respect of the page results failed because Google Inc established the defence of innocent dissemination.

DECISION

 Non-obstante application

Google unsuccessfully applied for judgment, effectively setting aside the jury’s verdict. The applicable principles, set out at [14], are:

1. the defendant must establish that there was no evidence upon which a reasonable jury, properly directed, could return a verdict for the plaintiff.
2. where there is evidence to support the jury’s verdict, the verdict cannot be disregarded even if the trial judge were strongly against the jury’s conclusion.
3. the trial judge should determine the application on the evidence most favourable to the party that carries the onus of proof.
4. the trial judge should proceed with great caution and only exercise the power to give judgment in disregard of the jury’s verdict in the clearest of cases.

Publication

Google submitted that it was not the publisher of the material, stating that there was no human intervention between the request made to the search engine and the publication of search results. The system was “fully automated”.  The plaintiff submitted, at [16] that:

Google Inc intended to publish the material complained of because while the systems were automated, those systems were the consequence of computer programs, written by human beings, which programs were doing exactly what Google Inc and its employees intended and required. On this basis, it was contended that each time the material complained of was downloaded and comprehended, there was a publication by Google Inc (the operator and owner of the relevant search engines), as intended by it.

His Honour agreed with the plaintiff’s submissions, stating, at [18]:

The question of whether or not Google Inc was a publisher is a matter of mixed fact and law. In my view, it was open to the jury to find the facts in this proceeding in such a way as to entitle the jury to conclude that Google Inc was a publisher even before it had any notice from anybody acting on behalf of the plaintiff. The jury were entitled to conclude that Google Inc 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 one of Google Inc’s search products.

His Honour reviewed the UK authorities relied upon by Google regarding publication ([22] – [26]) but found them of limited utility stating that the question of whether an internet provider might be a publisher was fact sensitive (see [27]). His Honour rejected the espousal of the principle that if an entity’s role is a passive one it cannot be a publisher ([28]) and that Google was merely an intermediary [29].  His Honour also found, at [32], that after relevant notice if an entity with the power to stop publication fails to do so after a reasonable time an inference can be drawn that  that entity consents to the publication. There was significant argument as to whether proper notice had been provided to Google and when.

Innocent dissemination

His Honour rejected Google’s claim of innocent dissemination. He noted, at [41], that in order to establish the defence of innocent dissemination the defendant must:

1. establish that it did not know that the matter was defamatory,
2. that it ought not reasonably to have known of that matter;
3. such lack of knowledge was not due to any negligence on its part.

Damages

His Honour briefly set out the principles concerning damages, at [46], stating:

Compensatory damages are awarded as a vindication of the plaintiff’s reputation, reparation for the harm done to the plaintiff’s reputation and consolation for the distress, upset and injury to the plaintiff’s feelings occasioned by the publication

and regarding aggravated damages, at [47]:

Aggravated damages are awarded if there is an increase in the hurt to the plaintiff’s feelings because of the plaintiff’s knowledge or perception of a defendant’s misconduct – which, as a result, increases the damages.

His Honour referred to the award of $225,000 to the Plaintiff in Trkulja v Yahoo! Inc LLC & Anor [2012] VSC 88 where Kaye J took account (under section 38 of the Defamation Act) in mitigation of damages that the plaintiff had brought proceedings against Google

In relation to this proceeding his Honour considered the following as relevant:

1. the imputation found to have been conveyed by the jury in the present case was a very serious one and the plaintiff was entitled to an award of damages that vindicates him [52].
2. the amount of the damages to be awarded must be sufficient (in the words of some of the authorities) to “nail the lie” in respect of the imputation upon which the plaintiff has succeeded [53]

His Honour awarded the plaintiff $200,000.

ISSUE

The court emphatically restated the traditional rule regarding publication, drawing the analogy of Google being in the same position as newsagents,  publishers albeit passive ones.  The fact that Google did not monitor how each page was constructed was not determinate of it being a mere platform rather than a publisher.  Google’s intention to publish arose from the automated program it developed, which resulted in the defamatory publication.  It was also a factor that Google was put on notice about the defamatory publication but did not remove the offending articles in a reasonable time.  The court distinguished the UK authorities which provided greater scope for arguments of non publication and innocent dissemination from the current case, stating that the issue was fact sensitive.  While that may be the case the Australian courts are adopting a more conservative and traditional form of analysis in claims involving defamation on the internet.  This is a relevant consideration for search engines, hosts and other potential defendants as well as putative plaintiffs.  The award while not the maximum awardable under the Defamation Act is nevertheless very substantial by Australian standards.