A “conga line of litigants” is preparing to sue Google after this week’s High Court judgment cleared the way for a man to continue his legal war against the internet giant.
The lawyer for Michael Trkulja – who sued over search engine results that suggested he was a member of Melbourne’s criminal underworld – said the decision was a wake-up call for all media companies.
Stuart Gibson, a partner at Mills Oakley, said more than 20 cases have been “held back in the hope that Google would fall at this juncture and not escape potential liability as a publisher at law”.
“There is a conga line of litigants waiting to be file defamation cases pending this judgment. One would expect those cases to now proceed,” Mr Gibson said.
The High Court overturned a Victorian Court of Appeal (VCOA) decision that was very Google-friendly. That court had blocked Mr Trkulja’s defamation claim, saying he had no prospect of success. It said the matters were incapable of being defamatory and Google would be entitled to a defence of “innocent dissemination” as a secondary publisher.
However the High Court found, “there should not have been a summary determination of issues relating to publication or possible defences, at least until after discovery, and possibly at all”.
Mr Gibson said his client had been battling ill-health in recent years and “was delighted”.
“He said he wasn’t doing it for himself, but for every victim of material on the web.”
Mr Trkulja has already had two significant paydays and is now eyeing a third. The former music promoter sued Yahoo! and Google in 2012 over search material from 2009. He was awarded $225,000 damages against Yahoo! and $200,000 against Google.
The present case covers web search results – some generated by the auto-complete function – in 2012-2013. They included posts, material and images that allegedly made a criminal connection. While Google removed some websites from its result page, it declined to remove images of Mr Trkulja alongside notorious gangsters.
Mr Gibson said Mr Trkulja’s claim would focus on the images that stayed on the web after he complained to Google.
The High Court said, “at least some of the search results complained of had the capacity to convey to an ordinary reasonable person (that he) was somehow associated with the Melbourne criminal underworld” – and “in the same league” as notorious figures such as Carl Williams, Andrew “Benji” Veniamin and Tony Mokbel.
While it put search engines on notice, Mr Gibson said the decision was also bad news for media defendants because the court “has stated authoritatively that its inferior courts must let cases proceed to jury”.
It was the first case on search engine defamation to go before a final court of appeal in the English-speaking world, so a lot was hinging on the result. If Google had won, it could have paraded the judgment in courts around the world.
Professor David Rolph of the University of Sydney, said it “was the beginning, not the end of the development of this area of law”.
For example, the High Court can see problems in working out what “the ordinary reasonable person” – the one that is said not to be “avid for scandal” when reading a newspaper – is when it comes to search engines.
“We need a core of cases so we can understand what the expectation might be,” Professor Rolph said.”There will be a range from new or occasional users to frequent users.”
Even the threshold question of publication is unsettled without a decision from a top court. Professor Rolph asks: “Is the search engine a publisher? In what circumstances? Is it only after notice?”
Professor Rolph says the range of internet platforms “means quite difficult issues of publication can sometimes arise.
“In the mass-media environment of the 20th century you had the newspaper, radio or television station creating the content, disseminating the content and making money out of it. There was no real difficulty about whether they were a publisher.
“It’s only been with the development of the internet that the concept of publication has become problematic.”
A series of cases in Australia and England has found that a search engine is a mere “passive facilitator” and can rely on a defence of innocent dissemination. They suggest, however, that once a search engine is alerted to defamatory material it will be treated as publishers of a composite work.
In Mr Trkulja’s case, the High Court hinted it may head down that path. The judgment said: “The liability of a search engine proprietor, like Google, 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.”
The court noted the discovery process would help unlock “the nature and extent of Google’s involvement in the compilation and publication of its search engine results”.
Professor Rolph suspects one part of the judgment might cause practical problems for defendant lawyers. The VCOA said Mr Trkulja had to plead whether Google was a primary or secondary publisher. The High Court said this should be left to the defence, who must then decide whether to plead innocent dissemination as a secondary publisher.
He said it may be that the NSW government’s defamation law reform process will look at “legislative safe harbours” or whether the common law should develop some sort of immunity.
Professor Rolph said a definitive finding that Google was a publisher could have an unwanted side-effect. “If that’s the case, then once they have got notice it’s in the interests of search engines to take down material if they receive a complaint.
“That then raises the issue about a private entity making these sorts of decisions to manage their risk but they may have consequences on the availability of public information.”