The High Court in Trkulja v Google LLC [2018] HCA 25 upheld an appeal from the Victorian Court of Appeal regarding a summary judgment application. It is a very significant decision in relation to pleading the of defamation when the imputations arise from search engine results.

FACTS

While not enamoured of the drafting the Court noted that the Appellant’s (Trkulja”) Amended Statement of Claim was  sufficiently comprehensible to convey that Trkulja alleged that:

• Google defamed him by publishing images which convey imputations that 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;
  • is an associate of Veniamin, Williams and Mokbel; and
  • is “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”[3].
• Google published the defamatory images between 1 December 2012 and 3 March 2014 to persons in Victoria, including several named persons, upon those persons accessing the Google website, searching for  Trkulja’s name or alias (Michael Trkulja and Milorad Trkulja), and then viewing and perceiving the images presented on-screen in response to the search [4].
• the allegedly defamatory matters  comprising two groups:
  • “the Google Images matter” and
  • “the Google Web matter” [5]
• some of the pages include an image that contains text stating, inter alia, “Google lawsuit in court”, “COLOURFUL Melbourne identity Michael Trkulja” and “Mr Trkulja an associate of Mick Gatto” [7]
•  the images matter and the web matter are defamatory of  Trkulja in their natural and ordinary meaning and  carry the following defamatory imputations:

“(a) The plaintiff is a hardened and serious criminal in Melbourne[;]

(b) The plaintiff is a hardened and serious criminal in Melbourne in the same league as convicted murderer Carl Williams, hardened notorious underworld killer Andrew ‘Benji’ Veniamin, hardened and serious and notorious murderer Tony Mokbel and the Mafia Boss Mario Rocco Condello[;]

(c) The plaintiff is an associate of underworld killer Andrew ‘Benji’ Veniamin[;]

(d) The plaintiff is an associate of Carl Williams Melbourne notorious convicted criminal murderer and drug trafficker;

(e) The plaintiff is an associate of Tony Mokbel, the Australian notorious convicted murderer and drug supplier and trafficker;

(f) The plaintiff is 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[.]” [13]

•  on or about 3 December 2012  Trkulja sent a letter each to Google and Google Australia Pty Ltd (“Google Australia”) drawing the allegedly defamatory matter to their attention, informing them of the nature of the defamatory matter, demanding that Google and Google Australia remove the images matter from their computers and servers, or to remove all links or direction from their computers and s demanding that they “block the name of Milorad Trkulja and Michael Trkulja from [their] computers and servers links or directing internet users to the name of ‘Milorad Trkulja’ and ‘Michael Trkulja'” [15]
• 0n 14 December 2012, Google Australia responded to the effect that the “search products” to which  Trkulja’s “inquiry” related were owned by Google and that Google Australia was “unable to further assist” him with his inquiry [16].
• on 18 December 2012, Google sent an email to Trkulja to the effect that Google Australia had forwarded Trkulja’s letter to Google; that the “Google services” referred to in the letter were owned and operated by Google, to which all future correspondence relating thereto should be directed; and that Google was currently reviewing the complaint and would contact Trkulja when it had completed its review. On 20 December 2012 it sent a reply in the same terms as that sent by Google on 18 December 201 [16]
• on on 16 January 2013 Google stated that it had removed certain websites from its web search results pages and, without admission, that it had blocked certain autocomplete predictions and search queries relating to Trkulja from appearing as part of the autocomplete and search functions of “google.com.au”. Google declined, however, to remove the images of Trkulja which appeared in response to other image searches made using the Google search engine [16]
• sought damages, including aggravated and punitive damages on the basis of Google’s knowledge of the falsity of the imputations, at least from 3 December 2012, and its refusal to accept any responsibility for the allegedly defamatory publications, and also for an injunction against Google in the following terms:
  • “that [Google] permanently block Google Images and web searchers [sic] of the Plaintiff’s names ‘Milorad Trkulja’ and ‘Michael Trkulja’ from its computers and servers and remove all links from its computers and servers linking to the Google webs and images users from Australia.” [17]

The Google Images matter (“the images matter”) consisted of 20 pages of which :

• pages 1 – 13 and 15  – 20 are Google images search results displaying images of Trkulja mixed with images of convicted Melbourne criminals and variously contain one of the following phrases:
  • “melbourne criminals”,
  • “melbourne criminal underworld figure”,
  • “melbourne criminal underworld photos”,
  • “melbourne underworld crime”,
  • “melbourne underworld crime photos”,
  • “melbourne underworld criminals”,
  • “melbourne underworld killings” and
  • “melbourne underworld photos” [6].
• page 14 is described in the pleading as a Google “autocomplete” search results page and shows a Google search for “michael trk” together with autocomplete predictions, namely, phrases including “michael trkulja”, “michael trkulja criminal”, “michael trkulja melbourne crime”, “michael trkulja underworld” and “michael trkulja melbourne underworld crime” and contains an image referring to a “[w]ebsite for this image”, stating that “[i]n a nutshell, Michael Trkulja’s beef with both Yahoo and Google was that …” and other references to a defamation lawyer and an online solicitor [8].

The Google Web matter (“the web matter”) consisted of seven individual pages with

• page 1 showing an online post by “Picklesworth” that says:

“I hear Milorad ‘Michael’ Trkulja is a former hitman who shot a music promoter in the balaclava.

‘Streisand’d”.

underneath which is an image of what appears to be predictions generated by Google’s autocomplete functionality showing the phrases “michael trkulja”, “michael trkulja criminal”, “michael trkulja melbourne crime” and “michael trkulja underworld” [9].

• page 2 of the web matter is  a web search results page for the search words “melbourne-criminal-underworld-figure”  displays both text results and image results [10].
• pages 3 and 4 are web search results pages for the search words “melbourne criminal underworld photos” and “melbourne underworld criminals”, and which display both text results and image results. The pleading draws attention to the fact that pages three and four display images of Trkulja mixed with images of convicted Melbourne criminals.
• pages 5 – 7 of the web matter are  autocomplete search results pages [12].

In the alternative it is contended that the images matter is defamatory in its true innuendo for carrying substantially the same imputations, and also that the gist of the images matter and the web matter is to associate Trkulja with organised criminal activity in Melbourne [14].

At First Instance

At first instance before McDonald J, Google applied for for summary dismissal on three bases:

(i) that it did not publish the images matter or the web matter;

(ii) that the matters in issue were not defamatory of Mr Trkulja; and

(iii) that Google was entitled to immunity from suit [24].

In Trkulja v Google Inc [2015] VSC 635 (17 November 2015) McDonald in dismissing the application :

• found it was was strongly arguable that Google’s intentional participation in the communication of the allegedly defamatory search results relating to Trkulja to users of the Google search engine supported a finding that Google published the allegedly defamatory results and cited:
  • Beach J in Trkulja v Google (No 5) (against which there was no appeal); and
  • Blue J in Duffy v Google Inc , McDonald J concluded that it [25] 
    
•  rejected Google’s contention that a Google search engine user or a person looking over his or her shoulder would not think less of a person such as Trkulja because his photograph is included in the search results or because his photograph or references to his name appear in “snippets” and hyperlinks returned by web searches and autocomplete predictions [26]
• rejected Google’s contention that Google should be held immune from suit as a matter of public interest, observing, correctly, that the range and extent of the defences provided for in Div 2 of Pt 4 of the Defamation Act 2005 (Vic) militate heavily against the development of a common law search engine proprietor immunity [27]

In the Court of Appeal

The Court of Appeal upheld Google’s appeal ruling that  Trkulja:

• “would have no prospect at all of establishing that the images matter conveyed any of the defamatory imputations relied upon”, and,
• in relation to the web matter, that he “could not possibly succeed in showing that the web matter upon which he relies carried any of the pleaded defamatory imputations” [28]
  

DECISION

At the outset their Honours reviewed the statutory scheme noting:

• Section 63 of the Civil Procedure Act 2010 (Vic) provides in substance that a court may give summary judgment in favour of a defendant on the defendant’s application, if satisfied that the plaintiff’s claim or part of that claim “has no real prospect of success” [20].
• In Victoria, the test for summary judgment is prescribed by s 62 of the Civil Procedure Act: whether the plaintiff’s claim has “no real prospect of success” [23]
• the power to dismiss an action summarily is not lightly to be exercised but that, like the test applicable to s 31A of the Federal Court of Australia Act, the “no real prospect of success” test is to some degree more liberal than Dey and General Steel. It permits of the possibility of cases in which, although the plaintiff’s case is not “hopeless” or “bound to fail”, it does not have a real prospect of succeeding [24]

The court stated at [30] that the question of whether words or images complained of:

• are capable of conveying a pleaded defamatory imputation is a question of law.  It is only ever with great caution that a defamation pleading should be disallowed as incapable of bearing a defamatory imputation. On an application for summary dismissal the plaintiff’s case as to the capacity of the publications to defame is to be taken at its highest.
• is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of  envisaging a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole [31] and
  •  that exercise is one in generosity not parsimony [32]
  • the question is what a jury could reasonably think they convey to the ordinary reasonable person [32] often as a matter of first impression.
  • 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 but may be taken to “read between the lines in the light of his general knowledge and experience of worldly affairs” such a person also draws implications much more freely than a lawyer, especially derogatory implications and takes into account emphasis given by conspicuous headlines or captions.

Their Honours stated that the  Court of Appeal approached the matter on the basis that Trkulja’s claim is a composite claim however:

• all of the search results comprised in the images matter (Annexure A) are to be looked at as one single composite publication,
• all of the search results comprised in the web matter (Annexure B) are to be looked at as another single composite publication, and,
• in determining whether any of the searches comprised in Annexure A is capable of conveying the allegedly defamatory imputations, the ordinary reasonable search engine user is to be attributed with knowledge of the contents of all of the searches comprising Annexure A and Annexure B, and vice versa [33].

Their Honours stated that the Amended Statement of Claim conveyed 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,
• each search may have been conducted by a different person without engaging in any of the other searches [34]

which accords with the view expressed by Callinan J in Dow Jones & Co Inc v Gutnick that each hit on a website is a separate publication [34] it was evident for the reasons given by McDonald J that at least some of the search results complained of had the capacity to convey:

• to an ordinary reasonable person viewing the search results that Trkulja was somehow opprobriously associated with the Melbourne criminal underworld
• one or more of the defamatory imputations alleged [35]

Their Honours were not impressed by and found the the Court of Appeal’s reasoning was in error in:

• describing its treatment of  Beach J in Trkulja v Google (No 5) as if it were plainly wrong as being problematical [36]
• treating the observations of Blue J in Duffy as if they went to capacity to defame, notwithstanding that Blue J was describing the process of reasoning by which his Honour, sitting as trial judge, reached findings of mixed fact and law in the trial of a defamation proceeding before judge alone [36].
• stating that despite the summary nature of the application the judgment includes a range of purportedly definitive findings of mixed fact and law drawn from Google’s affidavit evidence adverse to  Trkulja [37]
• in making a purportedly determinative finding of mixed fact and law that a search engine proprietor, like Google, is a publisher of search results, including of autocomplete predictions, but that an innocent dissemination defence will almost always, if not always, be maintainable in a period before notification of an alleged defamation [38]
• not recognising that the law as to publication is tolerably clear whereas the application of it to the particular facts of the case which tends to be difficult, especially in the relatively novel context of internet search engine results. Their Honours found that contrary to the Court of Appeal’s approach, there was 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 and  until and unless Google files a defence
• entering into conjecture what defences might be taken and whether, if taken, they would be likely to succeed as whatever defences are taken, they will involve questions of mixed fact and law and, to the extent that they involve questions of fact, they will be matters for the jury
• entering into summary determination of issues relating to publication or possible defences, at least until after discovery, and possibly at all [39]
  
• stating that it was  incorrect to say that it was incumbent on Trkulja to plead that Google was a primary or secondary publisher as it is not the practice to plead the degree of participation in the publication of defamatory matters because  all degrees of participation in the publication are publication [40].  It was open for Google  to plead the defence afforded to “subordinate distributors” by s 32 of the Defamation Act or otherwise contend that the degree of its participation in the publication of the impugned search results was such that it should not be held liable [41].
• in drawing the opposite conclusion to that of McDonald J who found it was certainly arguable that a reasonable search engine user would look at the compilation of images and assume that Trkulja was a convicted criminal and could not convey the defamatory imputations pleaded by the plaintiff  [51].  Their Honours found those conclusions unacceptable because the test of capacity of a published matter to defame is whether any of the search results complained of are capable of conveying any of the defamatory imputations alleged. The Court of Appeal’s approach judged the issue according to what the court may think the allegedly defamatory words or images say or depict rather than what a jury could reasonably think they convey [52].  The High Court stated that it must be allowed that:
  • the ability to navigate the Google search engine,
  • the extent of comprehension of how and what it produces,
  • whence it derives, and
  • how and to what degree

Google contributes to its content, varies significantly among the range of persons taken to be representative of the hypothetical ordinary reasonable person [54].  Appellate courts should be loath to consider the application of the law to evidence in novel contexts without the benefit of the evidence having been adduced and a trial concluded [55]

•  in relying on Google v ACCC as supportive of the conclusion that, although an image of Trkulja may have appeared in responses to Google searches which included the words “criminal”, “melbourne” and “underworld”, were not capable of conveying to the ordinary reasonable user of a search engine the imputation that Trkulja was a criminal or part of the Melbourne criminal underworld [56].  The High Court stated that Google v ACCC was about whether Google had engaged in misleading and deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) by displaying misleading and deceptive “sponsored links” [57] while this case was not concerned with sponsored links or misleading and deceptive conduct in relation to the content of sponsored links, but rather with the law of defamation in relation to responses to Google searches of another kind.  There was no evidence that it would have been apparent to an ordinary reasonable person using the Google search engine that Google made no contribution to the elements or combination of elements of those of the search results that convey a connection between Trkulja and criminality [59].
• saying that a user of the Google search engine would “inevitably give thought to just what relationship there could possibly be between the words inputted and the compilation produced” or “very probably perceive a disconnect between the images and the search terms” with their Honours stating that it was to be assumed that such a person would contemplate that there is a connection between the terms of the search inputted into the search engine and the contents of the results displayed [60]
• notwithstanding its observation that some of the search results were of persons shown who not criminals or members of the Melbourne criminal underworld there were also images of criminals or members of the Melbourne criminal underworld coupled with images of Trkulja, someone relatively unknown.  Their Honours stated it would be open to a jury to conclude that an ordinary reasonable person using the Google search engine would infer that the persons pictured whose identities are unknown are persons connected with criminality and the Melbourne criminal underworld [61].
• concluding that  observed, might result in the list of persons potentially defamed being large and diverse was no more than that the liability of a search engine proprietor may well turn more on whether the search engine proprietor is able to bring itself within the defence of innocent dissemination than on whether the content of what has been published has the capacity to defame [62].
• in relation to the autocomplete predictions in adopting the findings of mixed fact and law made by Blue J sitting at trial as judge alone in Duffy as a basis for concluding that they were incapable of conveying the imputations alleged [63] – [66]

In summary the High Court found that the Court of Appeal erred:

• in concluding that the matters upon which  Trkulja relied were incapable of conveying any of the defamatory imputations which were pleaded
• in concluding that  Trkulja’s proceeding had no real prospect of success.

and allowed the appeal [67]

ISSUE

There was very little in the Court of Appeal that recommended itself to the High Court.  It forensically took to task most of the reasoning in the Victorian Court of Appeal’s very long decision.  In doing so it provided comprehensive signposts on both pleading and the limitations of summary judgment applications when involving defamation proceedings. In many respects the High Court reverted to a traditional analysis of pleadings and the need to deal with each step in the process on its merits.  In doing so it showed an aversion to what it regarded as conclusions as to what the ordinary reader would discern from a search engine result without the conclusion of discovery and the filing of a defence by Google.

It is a decision that will influence defamation practice in the still relatively new area of search engine results constituting publication of defamatory statements.