High Court Rules Melbourne Man Has Right to Sue Google

This month, the High Court of Australia gave Melbourne man, Milorad Trkulja, the go ahead to sue Google in what could be a landmark defamation case against the US search engine giant.

Background of the case

In 2004, Trkulja was shot in the back during a shooting in a Melbourne restaurant. As a result, his name was published in several online articles discussing Melbourne criminals.

Trkulja alleged that when searching terms such as “Melbourne underworld crime” in Google’s image search, images of Trkulja appeared amongst those of notorious Melbourne criminals. On top of this, Google’s autocomplete function allegedly suggested Trkulja’s name to complete searches relating to hardened Melbourne criminals.

Trkulja argued that Google’s search results falsely suggested a connection between himself and the Melbourne criminal underworld and that this association defamed him.

The Victorian Supreme Court

In 2016, in response to these search results, Trkulja brought proceedings to sue Google for defamation in the Victorian Supreme Court.

In response, Google made an application to have Trkulja’s proceedings set aside, claiming he had no reasonable prospects of success. Google made the application on the following grounds:

1. Google argued that they didn’t publish the images, and thus couldn’t be held responsible.
2. It was submitted by Google that the arrangement of images failed to lower Trkulja reputation in the eyes of the reasonable person.
3. The final argument put by Google was that it was a matter of public interest that Google be immune from such actions.

The Victorian Supreme Court dismissed Google’s application to have the proceedings summarily dismissed.

The Court of Appeal

Google appealed to the Court of Appeal, advancing the same arguments as their original application. The Court of Appeal found Google’s first argument, that they didn’t publish the articles and images, as immaterial. Additionally, they rejected Google’s argument that Google should be granted immunity for public interest reasons. However, the Court of Appeal upheld Google’s argument that Trkulja had no prospects of demonstrating that the search results defamed him.

Trkulja disagreed with this finding and appealed to the High Court of Australia.

The High Court of Australia

The High Court unanimously allowed the appeal and held the Court of Appeal to be in error.

The High Court found the Court of Appeal had applied the wrong test in contemplating whether the alleged defamatory searches were capable of negatively affecting the ordinary person’s opinion of Trkulja. The Court of Appeal considered whether the defamatory imputations were conveyed to individuals. The High Court held this to be incorrect. The Court stated that it is not whether the imputations were conveyed, but rather whether they are capable of being conveyed to the reasonable person. The High Court recognised that a greatly varying range of persons use Google, and thus it is extremely difficult to contemplate the requisite knowledge and experience of the ordinary reasonable person in this context.

Trkulja can now continue proceedings against Google in the Victorian Supreme Court.

What could this mean for businesses who rely on online marketing?

No doubt, search engine providers and businesses alike will be watching this case closely, as the final decision could impact how businesses use search engines in the future.

Should Trkulja successfully sue Google for defamation, the response by Google may be to become more compliant with requests to remove content from its searches.

Many businesses invest precious time and money into building an online presence. Imagine if years of collecting reviews, publishing articles and participating in online forums could be instantly wiped away by a complaint from a disgruntled customer or conniving competitor. You could have the most wonderful website, but without search engines like Google directly potential customers to your site, it would be as useless as a shop with no front door, or a business at the end of a street on no map.

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