SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0124
| GOOGLE INC |
| v |
| MILORAD TRKULJA (aka MICHAEL TRKULJA) |
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| JUDGES: | ASHLEY, FERGUSON and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 October 2016 |
| DATE OF JUDGMENT: | 20 December 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 333 |
| JUDGMENT APPEALED FROM: | Trkulja v Google Inc [2015] VSC 635 (McDonald J) |
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TORTS – Defamation – Provider of internet search engine – Search results – Images – Text – Autocomplete predictions – Plaintiff’s case that defendant published search results that were defamatory of him – Whether defendant published matter relied on by plaintiff – Metropolitan International Schools Ltd v Designtechnica Corporation [2011] 1 WLR 1743; Trkulja v Google Inc (No 5) [2012] VSC 533; Bleyer v Google Inc (2014) 88 NSWLR 670; Yeung v Google Inc [2014] 4 HKLRD 493; Duffy v Google Inc (2015) 125 SASR 437; Crookes v Newton [2011] 3 SCR 269; Niemela v Malamas [2015] BCSC 1024, discussed.
TORTS – Defamation – Defamatory meaning – Matter pleaded as composite publication – Whether matter relied on capable of conveying defamatory meaning.
PRACTICE AND PROCEDURE – Service of writ outside jurisdiction – Reliance on Supreme Court (General Civil Procedure) Rules 2015 r 7.01(1)(i) and (j) – Application to set aside writ and its service pursuant to Supreme Court (General Civil Procedure) Rules 2015 r 8.09(a) – Whether proceeding had no real prospect of success – Agar v Hyde (2000) 201 CLR 552 – Civil Procedure Act 2010 ss 62 and 63 – Application for leave to appeal granted and appeal allowed – Amended writ, amended statement of claim and service on defendant outside jurisdiction set aside.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr N J Young QC with Ms L De Ferrari | Ashurst Australia |
| For the Respondent | Mr P Heywood-Smith QC with Mr E J Batrouney | George Liberogiannis & Associates |
TABLE OF CONTENTS
The defamation which is alleged
The plaintiff’s earlier defamation proceeding against Google
The judge’s reasons
Grounds of application
Grounds 1–8. Publication?
Publication at common law
The Defamation Act 2005
The world wide web and the publication pleaded
The size of the internet
Multiple uses of the internet
Internet service providers
Browsers
Platforms
Publishing services
Gateways
The Google search engine
Submissions for Google
Submissions for the plaintiff
Analysis
Internet service providers
Blogs. Facebook. Bulletin boards. Forum hosts. YouTube.
Search engines
Grounds 9–10. Is the matter complained of capable of defamatory meaning?
Submissions for Google
Submissions for the plaintiff
Submissions for Google in reply
Analysis
Ground 11. Immunity from liability?
Submissions for the parties
Analysis
Orders
Annexure 1
Annexure 2
Annexure 3
Annexure 4
ASHLEY JA
FERGUSON JA
McLEISH JA:
The Court has before it an application for leave to appeal which raises difficult questions about the law of defamation as it applies to the results produced by internet search engines. At issue are the questions whether the search engine provider ‘publishes’ those results for the purposes of defamation law, and whether, in…
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- AGLC
- Google Inc v Trkulja [2016] VSCA 333
- Case
- [2016] VSCA 333
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether Google Inc published the allegedly defamatory search results and if the plaintiff had relied on the matter as a basis for his defamation claim. The court also needed to decide if the matter relied on by the plaintiff was capable of conveying a defamatory meaning, particularly given that the publication was considered a composite publication. The court considered previous cases such as Metropolitan International Schools Ltd v Designtechnica Corporation, Trkulja v Google Inc (No 5), Bleyer v Google Inc, Yeung v Google Inc, Duffy v Google Inc, Crookes v Newton, and Niemela v Malamas in its deliberations.
The Supreme Court of Victoria found that the plaintiff's proceeding had no real prospect of success and set aside the writ, amended statement of claim, and the service of the writ outside the jurisdiction. The court relied on Agar v Hyde, the Civil Procedure Act 2010, and the Supreme Court (General Civil Procedure) Rules 2015 in reaching its decision. The appeal was allowed, and leave to appeal was granted. This ruling emphasised the importance of the real prospect of success criterion in defamation cases and highlighted the court's willingness to intervene in proceedings that were unlikely to succeed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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