Google Inc v Trkulja

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0124

GOOGLE INC

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 the particular instance, the results produced in the present matter were capable of being defamatory of the plaintiff.

By its further amended summons dated 12 February 2015, Google Inc (‘Google’ or ‘the defendant’) sought to set aside a defamation proceeding brought against it by Milorad[1] Trkulja (‘Trkulja’ or ‘the plaintiff’). Pursuing its application before a judge in the Trial Division on 13 August 2015, Google relied upon the Court’s power, conferred by r 8.09(a) of Chapter 1 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), to set aside a writ or its service. Google had been served with the writ in the United States, the plaintiff apparently relying upon r 7.01(1)(i) and (j) of Chapter 1 of the Rules. Google had entered neither an appearance nor a conditional appearance.
[1]Or ‘Michael’.

Both below and in this Court, Google accepted, referring to Agar v Hyde,[2] that to succeed in its application it must establish that the plaintiff’s proceeding has no real prospect of success. That position was correctly taken. In Agar, defendants who had been served with process overseas sought to set aside service, mainly on the footing that the plaintiffs’ claims had insufficient prospects of success. Justices Gaudron, McHugh, Gummow and Hayne concluded that the test of insufficient prospects of success was no less demanding than that which operates when application is made for summary judgment. They said that —

The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.[3]

[2](2000) 201 CLR 552 (‘Agar’).

[3]Ibid 576 [57].

Their Honours said also that

the same test should be applied in deciding whether originating process served outside Australia makes claims which have such poor prospects of success that the proceeding should not go to trial as is applied in an application for summary judgment by a defendant served locally.[4]

[4]Ibid 576 [60].

In Victoria, by operation of ss 62 and 63 of the Civil Procedure Act 2010, the test is whether a plaintiff’s claim ‘has no real prospect of success’.

In support of its application, Google advanced three submissions. First, that as a matter of law it could not be held to have published the alleged defamatory matter. Second, that it would not be open to the trier of fact to conclude that the matter relied upon was defamatory of the plaintiff. Third, that, in any event, a ‘search engine provider’ should be immune from a proceeding such as this.

The judge, in reasons published on 17 November 2015, rejected all three submissions, and ordered that the summons be dismissed.

By application dated 9 December 2015, Google sought leave to appeal against the judge’s orders; and, if leave be granted, that the appeal be allowed. On 7 October 2016, this Court heard argument respecting both the application for leave to appeal and the appeal.[5]
[5]See Civil Procedure Act 2010 r 64.19.

In our opinion, for the reasons which follow, Google should have leave to appeal, and the appeal should be allowed. Leave to appeal should be granted because, in our opinion, the appeal has a real, not fanciful, prospect of success.[6] The substantive appeal should be allowed because, in our opinion, the demanding test which we identified above, the burden lying upon Google, has been satisfied.
[6]See Supreme Court Act 1986 s 14C and Kennedy v The Shire of Campaspe [2015] VSCA 47, [13] (Whelan and Ferguson JJA).

The defamation which is alleged

The only formal documents before the Court are the writ and an amended statement of claim.

The writ was filed on 2 December 2013. It contained both an indorsement and a statement of claim.

An amended statement of claim (‘ASoC’) was filed on 20 June 2014.

The writ, the original statement of claim and the ASoC were filed by the plaintiff and were apparently prepared by him. Defamation is a difficult area of the law, even for experienced practitioners and for judges having familiarity with the law of defamation. The difficulty is magnified in the context of the interrelationship between defamation law and the internet. Nonetheless, Google’s original application, and the proceeding in this Court, must be considered in the context of the plaintiff’s pleaded case.[7] That is subject to one rider. As will appear, the ASoC contains at least one ambiguity. We should approach consideration of this matter on the basis of a reading of the statement of claim most favourable to the plaintiff.
[7]It does not deny the problems of self-representation, but it is the fact that the plaintiff has been plaintiff in a good deal of other defamation litigation, and, in the course of doing so, has at times prepared his own pleadings and at times appeared unrepresented: Trkulja v Yahoo! Inc [2010] VSC 215; the related matters of Trkulja v State of Victoria No 4187 of 2009 and Trkulja v Google Inc [2010] VSC 226; see also Trkulja v Google Inc (No 5) [2012] VSC 533; Trkulja v Markovic [2013] VCC 1095 and, on appeal, Trkulja v Markovic [2015] VSCA 298; Trkulja v Dobrijevic [2016] VSC 421 and [2016] VSC 596. He has engaged in other litigation also, at times self-represented. A sample was referred to by Beach J in Trkulja v Google Inc (No 4) [2011] VSC 560, [18] and n 5.

We have mentioned that the plaintiff filed an ASoC on 20 June 2014. That was not the entirety of it. In fact, he filed a writ and statement of claim, each of which was in amended form.[8] The amended writ contains this indorsement:

[MILORAD TRKULJA aka MICHAEL TRKULJA Plaintiff endorsement of a statement of claim or of a statement For DEFAMATION and the cause thereof and of the relief or remedy sought in the proceeding JUDGMENT and Aggravated and Punitive DAMAGES, sum $1.000.000.00 and the SUPREME COURT ORDERS That the DEFENDENTS PERMINETLY BLOCK OF PLAINTIFF NAME FROM ALL GOOGLES SEARCH ENGINS in AUSTRALIA and WORLDWIDE TO STOP DISPLYING ARTICLE AND IMAGES OF THE PLAINTFF, s for Images for Melbourne Criminal Underworld Photos and PERMINNETLY BLOCK ALL IMAGES OF/OR FOR MILORAD TRKULJA and MICHAEL TRKULJA. (the Googles Webpage]

[8]A judge had given the plaintiff leave to file an ASoC only.

By his ASoC, the plaintiff pleads, with respect to the defendant, that it is —

(d)A company that intended to publish the defamatory material complained of because any time somebody read that story the first defendant making money, while the systems were automated, those systems were the consequence of computer programs, written by human beings, and were programs were doing exactly what the first defendant (“Google Inc”), and its employees intended and required.

This is, evidently, in part a replication of conclusions expressed by Beach J (as his Honour then was) in Trkulja v Google Inc (No 5), an earlier successful defamation proceeding by the plaintiff against Google.[9]

[9][2012] VSC 533 (‘Trkulja (No 5)’). The proceeding to which Beach J’s ruling relates will be referred to as ‘the earlier Google proceeding’).

By paragraphs three to 12 of the ASoC, the plaintiff pleads legal propositions with respect to publication of defamatory matter.

Paragraph 13 reads relevantly as follows:

The Google Images matter was published on or before 1/12/2012 and 3 March 2014 and current to the persons in the State of Victoria upon those persons accessing the Google site, searching for the plaintiff’s names Michael Trkulja and Milorad Trkulja and then viewing and perceiving the matter.

To this point, the statement of claim has not identified ‘the Google Images matter’. That term is given content by paragraph 16, which reads as follows:

The First and Second Defendant published Defamatory images, of concerning the plaintiff, the matter set out in Annexure A to this Statement of Claim (“the Google Images matter”).[10]

[10]The ‘First’ defendant is a reference to Google. The ‘Second’ defendant refers to Google Australia, which is no longer a party to the proceeding.

There follow particulars of publication numbered (i) to (xx). Each particular corresponds with a printout of results produced by the images section of the Google search engine in response to a search term entered by the plaintiff.[11] Those printouts are the 20 pages of Annexure A to the ASoC.[12] For the most part, the printouts are compilations of photographs — so-called ‘thumbnails’. The same 20 pages of images, although not in the same order, were Annexure A to the statement of claim in its original form.
[11]Or by some person having a community of interest with the plaintiff. For convenience, we will not keep repeating this alternative. We are, of course, conscious that publication of defamatory material to a plaintiff only is no publication, and we do not mean to imply that others did not access the search results which are complained of.
[12]A copy of Annexure A is Annexure 1 to these reasons. The pages are sequenced in the same order in these reasons and in Annexure 1. A reference in these reasons to a page number in Annexure A is to be understood as a reference to that page number of Annexure 1.

The date upon which the search was conducted that produced the particular printout is detectable in the case of 19 of the 20 pages. Putting aside the one page of undated images,[13] the earliest search was conducted on 30 September 2012, and the last search on 10 November 2013. Multiple searches were conducted on six days. Since the undated page of images was part of Annexure A to the statement of claim in its original form, it is certain that the search date on the undated occasion preceded 2 December 2013.[14]
[13]It is page five of Annexure A.
[14]Of the 19 instances where the search date is detectable, five (pages six, 14, 15, 17 and 18) predate 1 December 2012, and thus predate the concerns notice dated 3 December 2012.

The predecessor of paragraph 13 of the ASoC[15] commenced as follows: ‘The Google Images matter was published on or before 1/12/2012 and 1 December 2013’. That becomes, in the ASoC: ‘The Google Images matter was published on or before 1/12/2012 and 3 March 2014 and current’.
[15]Paragraph five of the original statement of claim.

Reference in each instance to the date 1 December 2012 seems likely to reflect the plaintiff’s awareness of the limitation period which is imposed (subject to the operation of s 23B) by s 5(1AAA) of the Limitation of Actions Act 1958. But the operation of those provisions — bearing in mind the fact that five of the image pages were the result of searches conducted before 1 December 2012 — was not the subject of argument, and does not fall for present consideration.

It may next be noted that the search terms which resulted in the images being displayed followed a consistent theme. The search terms were as follows:

Melbourne criminal underworld photos
Melbourne underworld criminals
Melbourne criminals
Melbourne–criminal–underworld–photos
Melbourne underworld crime photos
Melbourne underworld photos
Melbourne–criminal–underworld–photos
Michael Trkulja underworld
Melbourne underworld crime
Melbourne–criminal–underworld–figure
Melbourne underworld killings

According to the particulars of publication referable to the ‘Google Images matter’ (for convenience, ‘the images matter’), an image of the plaintiff was displayed, ‘mixed with’ a specified number of ‘convicted Melbourne underworld criminals’[16] in response to the search term inputted by the searcher. The number of images of convicted criminals specified as appearing together with the plaintiff’s image does not always seem to coincide with the search results forming Annexure A. But be that as may, it was not in contest before us that the images section of the Google search engine displayed, on the searcher’s browser, and in response to the search term inputted by the searcher, a compilation of ‘thumbnail’ images derived from the world wide web as it existed at a moment in time.[17] As depicted on the printouts which form 19 of the 20 pages of Annexure A[18], the thumbnails were mainly reproductions of photographs. We will describe them as ‘thumbnails’ or ‘images’ rather than photographs.
[16]Or ‘convicted “Melbourne underworld criminal’’’, or the like.
[17]Fixed by the time when the website displaying those images had last been ‘crawled’ and ‘indexed’ by the search engine. See the explanation of these terms later in these reasons.
[18]The 20^th page (which is page 14 of Annexure A), is an image of an autocomplete prediction, posted on ozsoapbox.com/wp.

In each instance of a compilation of thumbnails, the compilation included a thumbnail of the plaintiff. In each instance, also, thumbnails of members, actual or reputed, of the Melbourne underworld appeared. But the trier of fact would immediately notice — and if, by some chance, it was not obvious, then evidence would disclose the fact — that the compilations variously included thumbnails of another, or others, who were not Melbourne underworld figures; and other images altogether. There were thumbnails of a former Chief Commissioner of Victoria Police,[19] two well-known crime reporters,[20] a barrister dressed in wig and gown, a solicitor, a murder victim,[21] a radio and television journalist who is now a senator for the State of Victoria,[22] actors who appeared in film and television productions concerned with the Melbourne underworld,[23] the late Marlon Brando, report headings of defamation proceedings brought by the plaintiff at an earlier time against Yahoo! and Google, the St Kilda pier, and a Melbourne tram. Within the compilations there were also instances of depiction of the Google logo.
[19]Mr Simon Overland.
[20]Messrs Silvester and Rule.
[21]Ms Jill Meagher.
[22]Mr (now Senator) Derryn Hinch.
[23]Including Ms Jackie Weaver and Messrs Joel Edgerton and Ben Mendelsohn.

At time of search, it was possible for the searcher to ascertain the webpage on which any thumbnail had appeared, and thus the context in which it had appeared. That could have been done by ‘clicking’ on the particular thumbnail. But the plaintiff, in this proceeding, pleads simply that (possibly) the search term itself, and (certainly) the thumbnails constitute the defamatory matter. The search term was the doing of the searcher, and the thumbnails were found on webpages created by other persons. Neither was the work of Google.

Had the searcher clicked on a thumbnail, and ascertained the webpage on which the image appeared, the Uniform Resource Locator (‘URL’) of that webpage, as it existed at that moment in time, could have been ascertained. But the URL of the ‘source’ webpage could not reliably be determined from the thumbnail as displayed on the particular printout relied upon by the plaintiff.

We pause for a moment to say something upon the question whether the plaintiff pleads that the defamatory matter includes the search term as well as the results. The judge below stated in his reasons[24] that the plaintiff alleged that the impugned publication was ‘the composite of the search query plus’ the images or the web search results, as the case might be.
[24]Trkulja v Google Inc [2015] VSC 635, [15] (‘Reasons’).

In this Court, there was some debate whether the defamatory matter as pleaded includes the search terms. Senior counsel for Google submitted that the search terms contextualised the alleged defamatory matter, but were not part of the defamatory matter. He submitted also that there was no allegation that Google published the search terms entered by the user. It was as if, in a slander case, a person said something in response to a statement. That is the context in which the meaning of the response would be assessed.

We consider that the ASoC is ambiguous in this connection. It is the ambiguity to which we referred at [13] above. So, the plea in respect of the images matter is that Google published ‘defamatory images…, the matter set out in Annexure A…’. The particulars to that pleading then identify, in the case of each of the 20 pages, the images and the search term; and the printouts in the annexure show both the search term and the images returned. As we said we would do, we will approach consideration of Google’s application[25] on the basis most favourable to the plaintiff. For that reason, despite our reservations, we will assume that the pleaded defamatory matter is the composite of the search term and the search result in each instance.[26]
[25]That is, for leave to appeal; and, if leave be granted, the substantive appeal.
[26]The plaintiff pleads both false and true innuendos. The false innuendo plea would seem destined to fail if the search term was not part of the allegedly defamatory matter.

Before referring to the meanings relied upon by the plaintiff, we must identify a second category of defamatory matter pleaded by the ASoC. By paragraph 17 of that document, the plaintiff relevantly pleads that the defendant ‘published, of concerning the plaintiff, the matter set out in Annexure B to this Statement of Claim’. This is identified as ‘the Google Web matter’. We will call it the ’web matter’.

In the original statement of claim, the plaintiff pleaded that the web matter ‘was published and was available to be accessed and viewed as a search result … from 1/12/2012 and 1/12/2013’. In the ASoC, the plaintiff does not plead a date or dates of publication, by contrast with his pleading with respect to the images matter. The ASoC is deficient in this respect, but if that were the only problem confronted by the plaintiff, it would not provide, by any means, a basis for setting aside service.

In fact, the dates of alleged publication of the web matter displayed in the documents comprising Annexure B are largely detectable. They span the period 23 November 2012 to 24 June 2013.

We should describe the content of Annexure B.[27] Its seven pages fall into different categories.
[27]A copy of Annexure B is Annexure 2 to these reasons.

The first page is a screenshot[28] of comments made on a webpage discussing the plaintiff’s earlier Google proceeding. The comments, by one ‘Picklesworth’, mention the plaintiff being ‘Streisand’d’ (sic), and append an image of autocomplete predictions, the latter associating the plaintiff with the words ‘criminal’, ‘Melbourne crime’ and ‘underworld’. ‘Streisand’d’ is a reference to the so-called ‘Streisand effect’.[29] The plaintiff’s earlier successful proceeding against Google was being said by the comment-maker to have had that effect.
[28]Dated 26 November 2012.
[29]According to Wikipedia, ‘the phenomenon whereby an attempt to hide, remove or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the internet’: Wikipedia, ‘Streisand Effect’ (13 December 2016) < The term was coined in 2005 ‘in relation to a holiday resort issuing a takedown notice to urinal.net (a site dedicated to photographs of urinals) over use of the resort’s name.’ All that the takedown notice did (as with Barbara Streisand’s earlier attempt to suppress photographs of her residence in Malibu) was that more people than might have been expected viewed the resort’s urinal depicted on the website.

The second page of Annexure B is a printout[30] of a search of the terms ‘Melbourne–criminal–underworld–figure’. The effect of dashes connecting the terms is that the Google search engine seeks instances of the searched words occurring in sequence. So much was not in debate at the hearing in this Court. But it is still a word search. One result of the search, as shown by the printout, was a number of thumbnails, none of them being of the plaintiff. They were a sample of the images that might have been returned at that time on an image search of the same terms. Another result was a ‘snippet’ from a webpage dealing with the earlier Google proceeding, and the case which the plaintiff had then raised.
[30]Dated 23 November 2012.

The third page is a printout of the results of a search of the words ‘Melbourne criminal underworld photos’.[31] One result was a compilation of images, including that of the plaintiff, of the kind referred to in the preceding paragraph. There were also, in that compilation, images of known criminals, a crime reporter, the Google logo and text dealing with the plaintiff’s earlier successful defamation proceeding(s). Another result was a ‘snippet’ from a webpage dealing with a successful defamation proceeding brought by the plaintiff against Yahoo! in 2012.
[31]Dated 23 November 2012.

Page four is a printout of the results of a search of the terms ‘Melbourne underworld criminals’.[32] The results include the images of four persons including the plaintiff, the other three being well known criminals. This page was specifically mentioned by the judge in his reasons in connection with the issue of defamatory meaning.
[32]The date of the search is not revealed.

Pages five, six and seven of Annexure B are of a different character. They purport to be printouts of autocomplete predictions made in the course of Google web searches resulting from input of the prefixes ‘michael trk’, ‘michael trkulj’ and ‘milorad trkulj’.[33] The predicted auto-completions include ‘michael trkulja criminal’, ‘michael trkulja melbourne crime’, ‘michael trkulja underworld’, ‘michael trkulja melbourne underworld crime’, ‘michael trkulja tony mokbel’, and ‘milorad trkulja criminal’, and ‘milorad trkulja tony mokbel’. Other suggested auto-completions are ‘michael trkulja v google’, ‘michael trkulja lawyer’, ‘Michael trkulja google’, ‘milorad trkulja google’, ‘milorad trkulja yahoo’, ‘milorad trkulja wiki’ and ‘milorad trkulja lawyer’.
[33]They are respectively dated 15 June 2013, 24 January 2013 and 24 January 2013.

We have described pages five, six and seven of Annexure B as purported printouts of autocomplete predictions. Several issues arise. First, page five appears to be a printout of an image located at ozsoapbox.com depicting a Google search in progress with autocomplete suggestions. Second, the affidavits of Michael Herscovici affirmed 18 January 2015 (‘the Herscovici affidavit’) and Nicholas Weiniger affirmed 3 June 2014 raise serious questions whether pages six and seven of Annexure B, and also page 14 of Annexure A, are in fact what they purport to be. There are said to be strong indications to the contrary. The plaintiff’s response to these challenges is presently unknown.

Notwithstanding the issues thus raised, Google accepted, both below and in this Court, that the facts needed to be taken at their highest for the plaintiff. For that reason, we take all of the documents in Annexures A and B to be what the plaintiff asserts they are.

In respect of the printouts which comprise Annexure B, the plaintiff’s claim is that the Google results together with (we will assume) the search terms, without more, are defamatory of him. That is, he eschews recourse to the webpages which underlie pages one to four of Annexure B, and recourse to the webpage which would have been displayed had any of the predicted auto-completions been taken up. Whether any results of further inquiry would have disclosed defamatory matter, or the converse, was thus not revealed at the time when the searches were made; and, because the web is dynamic, and thus constantly changing, it is quite uncertain whether a search made today of any of the predicted auto-completions would disclose the same underlying matter as would have been disclosed in 2012 and 2013 when the searches were conducted.

We have referred a number of times to autocomplete predictions. We will explain later what is comprehended by that term.

The plaintiff alleges that the images matter and the web matter conveyed imputations which were defamatory of him. He pleads, by paragraph 18 of his ASoC, the following false innuendos:

(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
(b) (sic)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 Melbourne criminal underworld

Further or alternatively, the plaintiff pleads, with respect to the images matter, the same imputations as matters of true innuendo. The extrinsic facts relied upon are set out in paragraph 20.

We should mention also paragraphs 21 to 23 of the ASoC. It is not easy to understand the point which they seek to make. Paragraph 23 refers to reliance upon ‘the following extrinsic facts know [sic] to the person to whom the Google Images and web matter was published’. But no extrinsic facts follow. Furthermore, the paragraph is apparently an intended reference to both the images and web matters. For the purposes of considering the present application, we will assume, favourably for the plaintiff, that the extrinsic facts relied upon with respect to the images matter are intended to be relied upon to support the true innuendo pleaded with respect to the web matter by paragraph 19 of the ASoC.

We can summarise the plaintiff’s pleading thus far as follows: he identifies the allegedly defamatory matter as — (1) compilations of thumbnails returned by the defendant’s search engine in response to search terms inputted into the images section of the Google search engine website; (2) search results returned by the search engine in response to search terms inputted into the web section of the website; and (3) autocomplete predictions at different stages of a search of the plaintiff’s name. In each instance, we assume, the defamatory matter includes the search term itself. In no instance does the plaintiff rely upon (1) any of the material in the webpages underlying the thumbnails, (2) the material identified in the web search results, or (3) the material which would have been disclosed had any of the autocomplete predictions been taken up.

There is another aspect of the ASoC to which we must draw attention.

As will be seen, one part of the submissions respecting publication turned upon a written notice which the plaintiff gave the defendant on about 3 December 2012. The notice had two possible areas of relevance: First, as going to the issue of publication. Second, in the context of Part 3 of the Defamation Act 2005 (‘the Act’).

A good deal must later be said about the first possible area of relevance. As to the second, Part 3 is concerned with resolution of civil disputes without litigation. One aspect of such resolution is the ability of the publisher of impugned material to make an offer to make amends in certain circumstances.

By s 14(1) of the Act, an offer to make amends cannot be made in two situations. The first, dealt with by subparagraph (a), is if 28 days have elapsed since the publisher was given a concerns notice by the aggrieved person.

Sub-section (2) provides for what is required of a concerns notice. Provision is thereafter made for a publisher to request particularisation, for the provision of particularisation, and for the consequences of a failure to provide particularisation.

A concerns notice must inform the publisher of the defamatory imputations that the aggrieved person considers are or may be carried by the matter in question.

A concerns notice given to the publisher of impugned material is plainly intended to address an allegedly defamatory publication which has taken place; not to deal with defamatory publications which might or might not take place in the future.

In the present case, much of the allegedly defamatory matter particularised, and then set out, in Annexures A and B was published, according to those annexures, after the notice was given.

Against the areas of (possible) relevance which we have identified, paragraph 26 of the ASoC reads as follows:

26.On or about 3 December 2012, the plaintiff.
(a)Informed the defendant of the nature of the defamatory matter
(b)Demanded that the defendant remove the defamatory images matter from its computer and servers linking or directing internet users to the matter
(c)Requested that the defendant provide details including contact details of the source or sources of the matter: and
(d)Demanded the defendant block the name of Milorad Trkulja and Michael Trkulja from its computers and servers links or directing internet users to the name of “Milorad Trkulja” and “Michael Trkulja”

The substance of the actual concerns notice,[34] dated 3 December 2012, reads this way:
[34]Annexed to the notice were printouts of a number of the pages which appear in Annexures A and B to the ASoC, and also printouts of pages from, inter alia, ‘YouTube PinkP4nter’s Channel’;‘knightsarmy86976.yuku.com/topic…’;‘sabotagetimes.com/life/the...’;‘ozsoapbox.com/Melbourne/…’; ‘ozsoapbox.com/rest-of-australia/…’; and ‘ozsoapbox.com/melbourne/ a-curious…’.

3 December 2012
Milorad (aka Michael) Trkulja
…
Email; [email protected]
URGENT
NOT FOR PUBLICATION:
CONFIDENTIAL AND LEGAL TAKE DOWN NOTICE
By Registered Post
Google Australia Pty Ltd
Level 5, 48 Pirrama Road
PYRMONT NSW 2009 AUSTRALIA
AND TO:
By Registered Post
Google Inc
1600 Amphitheatre Parkway
MOUNTAIN VIEW, CA 94043 USA
Concerns Notice: s.14 Defamation Act 2005 (Vic)
Dear Sirs,
My name is MILORAD TRKULJA (also known as (MICHAEL TRKULJA). I am writing with respect to certain articles and photographs, images and text that is accessible by typing into the Google search engine, ‘Melbourne underworld crime photos’. My photographic is published with photographs of Melbourne underworld criminals, drug traffickers and convicted murders. If you click on the link for ‘Images for Melbourne criminal underworld photos’ the search results shows that my photographic image is mixed with the photographs of Melbourne underworld criminals, drug trafficker and convicted murders. My photograph is accessible by typing into the (website and images matter).
My Take Down Notice Michael Trkulja and Milorad Trkulja
All defamatory article and images of Michael Trkulja and Milorad Trkulja are accessible from the Google websites and containing photographs of “Melbourne underworld criminals”. My photographic image is mixed with the Melbourne underworld criminals, drug trafficker and convicted murders and drug baron Tony Mokbal, and his kingpin killer Carl Williams and his ‘hit man’ Andrew Veniamin Banji. If you click on the Google link for ‘Images for Melbourne criminal underworld photos’ my photographic image is mixed with the Melbourne underworld criminals, drug traffickers and convicted murders.
My photograph is also accessible by typing into the Google image search engine This web page will no doubt confuse people to believe me to be part of the above Melbourne underworld criminals. I enclose for your reference a copy of the defamatory article and photos images of myself (“the Images matter”).
In particular, I note that my photograph Michael Trkulja and Milorad Trkulja) are published by the photographs of well-known convicted murders and drug traffickers who are known as ‘Melbourne underworld criminals’. (Mafia’s Drug Empire)
Take down “Google Autocomplete” of Michael Trkulja and Milorad Trkulja
When you type ‘michael trk’ into the Google website and the autocomplete results display the following:
a)michael trkulja
b)michael trkulja criminal
c)michael trklja
d)michael trkulja Melbourne criminal
e)michael trkula
f)michael trkulja underworld
g)michael trkulja Melbourne underworld criminal
h)

For your information, I confirm that “Tony” Mokbel (Antonios Sajih “Tony” Mokbel) is a criminal and convicted drug trafficker and murderer from Melbourne Australia. Several years ago Mr Tony Mokbel ago fled from Australia to Europe. In 2008 he was extradited from Greece back to Australia. In July 2012 Mokabel was sentenced to 30 [y]ears in prison for his crimes. My photograph can be viewed by anyone with the appropriate URL address and/or anyone who has previously bookmarked those web pages. As at the date of this letter, the material remains viewable by all Google users WORLD WIDE.
For your information I include in this Take Down Notice, My photograph is placed adjacent to a photograph of worldwide and well known ‘Melbourne underworld criminals’ and drug traffickers and convicted murders: These are Carl Williams and his Drugs Boss partner Tony Mokbal and they ‘hit man’ Andrew Veniamin Banji. He was a career criminal and long-time associate of Melbourne underworld criminal Carl Williams and Tony Mokbal
My photograph is placed adjacent to a photograph of Judy Moran convicted Criminal. On the other side of my image is a photograph of a well known underworld criminal and Calabrian Mafia money man the late Mario Condello as well as photographs of the head of the Italian-Australian Mafia, the Alphonse Gangitano. He was a career criminal and long-time associate of Melbourne underworld criminal Graham Kinniburgh. The photographs of these the criminals have been widely circulated in Australia and worldwide.
Users of the Google search engine will see my photograph mixed with those criminals.
As a direct result of the publication of my photograph (of Michael Trkulja aka Milorad Trkula) with images of criminals I have suffered, and will continue to suffer, irreparable injury and harm to my reputation and that of my family in my ethnic community. I have also suffered significant distress, embarrassment and humiliation in my church community.
Accordingly, I demand that by 4.00pm 21 December 2012 Google removes all defamatory articles, text, photographs and images of myself, Michael Trkulja and Milorad Trkulja) from their search results for the search terms, Melbourne Underworld Criminals. and ‘Melbourne Criminal Underworld Photos’
I also demand that by 4.00pm 21 December 2012 Google take down or removes the results for their ‘Google Autocomplete’ the following terms.
a) eprob&gs_rn=0&gs_ri=hp&cn=12&gs_id=le&shr=t&q=michael+trkulja&pf=p&tbo=d&output=search&sclient=nsv-ab&oq=michael+trku&gs_l=&pbx=1&bav=on.2.or.r_gc.r_pw.r_qf&fp=a688cdd845976958&bpel=39314241&blw=1067&bih=486
b)michael trkulja criminal
(a)michael trkulja Melbourne criminal
(b)michael trkulja underworld
(c)michael trkulja Melbourne underworld criminal

I further demand:
1.That Google provides a suitable offer to pay compensation for the damage to my reputation. Such compensation is to be agreed upon.
2.Pay my legal costs to date.
3.Provide to me the names and email address of the owners/operators of the website: Google has this data because when the Google email was registered, the registrant was provided a link to verify the email.
4.Provide to me the names of owners and/or operators and email addresses in Australia of the website:
Google has this data because when the Google email was registered, the registrant was provided a link to verify the email.
5.Remove the links, from the Google search engines, and and has this data because when the Google email was registered, the registrant was provided a link to verify the email.
6.Provide to me name of the owner operator of the email: [email protected]. Google has this data because when the Google email was registered, the registrant was provided a link to verify the email.

7.Provide to me the names of owners and/or operators and IP Addresses and email: of Google has this data because when the Google email was registered, the registrant was provided a link to verify the email.
8.Provide to me the names of owners and/or operators and email addresses in Australia of this email [email protected] Google has this data because when the Google email was registered, the registrant was provided a link to verify the email.

For your information, I enclose pages downloaded from 3 websites. This page shows the images that are the subject of this Concerns Notice. For You Information I have marked the Defamatory article and images on each pages.
9.Take down 6 websites 10 to 16 below, from the Googles search engines and and
11.
12.
15.
16. Copy page URL downloaded from

Accordingly, I demand that by 4.00pm 21 December 2012 the Google Inc and Google Australia Pty Ltd take down this 6 websites in paragraph 10 to 16 above.
Be advised that Google Australia Pty Ltd and Google Inc is fully responsible for all defamatory images and articles posted on this 6 websites in paragraph 10 to 16 above.
According to the Australia Defamation Law. The Google Inc is the publisher and are responsible for all Google domains published defamatory article and images worldwide. And they are accessible from Australia. I attach the decision in the Supreme Court the landmark deformation case reference Milorad Trkulja v Google Inc LLC & Google Australia Pty Ltd [2012] VSC 533\ also enclosed Judgment by His Honour Justice Beach

(“the Defamatory imputations”)
I am advising you that according to Australian case law a person may be liable not only for direct remarks, but also for conveyed imputations (see Favell v Queensland Newspapers Ltd (2005) 221 ALR). I also remind you that my right to sue you in this jurisdiction of The State of Victoria, Australia, in which I have an established good reputation has been established in the Australian High Court (see Dow Jones and Company Inc v Gutnick (2002) HCA 56).
None of these defamatory meanings are defensible. These imputations are malicious and the comments have damages my good reputation and caused hurt feelings in myself and my family. There was, and is, no factual foundation for any of the imputations. I am not a criminal or “gangster”. I remind you that under Australian defamation laws it is incumbent on you, as the defendant, to provide evidence of the truth of this imputation.
As a direct result of the imputation in your publication of the word “gangster”, I suffered, and continue to suffer irreparable injury and harm to my reputation and feelings. Moreover I suffered and continue to suffer distress, embarrassment and humiliation within my family, my community and among my church members.
I further demand that you immediately remove and/or take down all articles photographs and images of myself (Michael Trkulja and Milorad Trkulja) referenced in this take down notice that are within your possession, custody or control including from all servers, back-up servers, and other electronic storage devices, remove all links to, and/or information directing viewers to copies of the Defamatory Material.
You would be well advised to comply with these take down notice demands immediately and to inform me in writing of your agreement to do so by 21 December 2012. Please note that in the event that these matters are not agreed, I will instruct my solicitor to issue legal proceedings against you without further notice.
My claim will include aggravated and exemplary damages pursuant to The Defamation Act 2005 (Vic).
This letter does not purport to constitute a complete or exhaustive statement of all of my (Michael Trkulja or Milorad Trkulja) rights, contentions or legal theories. Nothing contained herein is intended neither as, nor should it be deemed to constitute, a waiver or relinquishment of any of My rights or remedies whether legal or equitable, all of which are hereby expressly reserved.
My photos images mixed with “Melbourne underworld criminals” I have suffered, and will continue to suffer, irreparable injury and harm to my reputation. No amount of money can actually compensate me for the distress and shock dealing with My reputation being questioned by my friends and the Community and Church members.
Yours sincerely
Milorad Trkulja (also known as Michael Trkulja)
NB: The Google Australia Pty Ltd and The Google Inc never responded to my Concern Notice dated 1. July 2011.

Please be advised for the court records that I sent a Concerns Notice on July 1^st 2011 by registered post to Google Australia Pty Ltd. The registered post number is: AP 512212960015. I also sent a Concerns Notice by registered post to Google Inc on 1 July 2011. The registered post receipt number is RR142488105AU.
On July 22^nd 2011, I received an email from [email protected] signed by ‘The Google Team’ with an attachment ‘Letter from Trkulja to Google- Notice 1/7/2011’. They requested that I send them the same publication that I already had sent with the landing page URL. A copy of the email will be produced to the Supreme Court.
The perfect example in December 2007, in the Supreme Court Melbourne Australia:
Plaintiff’s Mark Forytarz & Paul Castran v Google Australia Pty Ltd. The Google Australia Pty Ltd has removed defamatory publications from and
Second example Dr Duffy who suing v Google Australia Pty Ltd and Google Inc in Adelaide South Australia.
Google Australia Pty Ltd has removed part of defamatory publication from and 10 day before Dr Duffy served Concerning Notice to Google Inc in USA..
The Google Australia Pty Ltd did not request that Dr Duffy provide them with Urls.

The demands made by sub-paragraphs (b), in part, and (d) of paragraph 26 of the ASoC fit in with paragraph C of the prayer for relief, which reads as follows:

C. A permanent injunction by the Supreme Court orders that the defendants permanently block Google Images and web searches 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.

At least in part, what was purportedly a concerns notice was outside the statutory framework. Nonetheless, the notice in some part pertained to the allegedly defamatory matter relied upon in the ASoC; and it was said for the plaintiff to bear upon the question whether the defendant published the impugned matter.

Google replied at length to the plaintiff’s notice on 16 January 2013. The reply is exhibit JHC-9 to the affidavit of James Clark sworn 30 January 2015 and filed on behalf of the defendant. Google stated that it had removed the URL of one ‘ozsoapbox’ webpage from future search results; and, specifically without admission, that it had blocked certain predictions and queries respectively relating to the plaintiff from appearing as part of the autocomplete and related searches features on google.com.au. Only if this proceeding was to continue might the sufficiency or otherwise of Google’s response fall for consideration. The same observation applies to subsequent correspondence between the plaintiff and Google.

The plaintiff’s earlier defamation proceeding against Google

In rejecting Google’s submission that it could not be held to be the publisher of the impugned matter, the judge relied, as will be seen, upon a ruling of Beach J in the earlier Google proceeding. That ruling was made on a non obstante veredicto motion by Google, the jury having found by answers to questions that Google had published the matter upon which the plaintiff relied.

Apart from concluding that the reasons of Beach J supported a conclusion that there was publication of the impugned matter in the present case, the judge gave considerable attention to whether those reasons gave rise to an issue estoppel upon that question. His Honour did not, however, finally decide the point, although he stated that the possible application of such an estoppel — depending upon it being pleaded in response to Google’s defence — was another reason why it could not be concluded that the plaintiff’s claim had no real prospects of success.

It is desirable, in the event, to say something immediately about the circumstances of the earlier proceeding. There, the plaintiff relied in part upon the results of a Google image search of the term ‘michael trkulja’. The search returned 3810 results. Amongst the first 20 results were an image of the plaintiff, two Facebook images of another man (not identified as a criminal), and two images of persons associated with Melbourne crime. Each of the five images was captioned ‘Michael Trkulja’. The images were ‘thumbnails’.

The image results were quite different in form to the results relied upon in the present proceeding. They were captioned, and in each instance the source webpage was identified by a truncated part of the domain name. Contrast the situation described at [26] above.

Within the image search aspect of his claim, the plaintiff relied, too, upon the content of an underlying webpage, accessed by clicking on a thumbnail of his face in two instances. That page largely consisted of an online article on the site ‘Melbourne crime’. It dealt with the plaintiff having been shot in 2004, of assertions which he made in 2007 that he knew the attacker’s identity, and with a request that police re-open their investigation of the incident.

The plaintiff also relied upon the results of a Google web search of the term ‘michael trkulja’. Depicted on a printout were the first ten of about 185 000 results, one of which was a snippet under the headline ‘michael trkulja — Melbourne crime — underworld — ganglands’, together with a hyperlink to a particular webpage. The snippet referred to the plaintiff having been shot in 2004. The plaintiff relied also upon the content of the webpage identified by the snippet. The searcher was taken to the same article as that to which we referred a moment ago.

Thus, in the case of both the image search and the web search, the plaintiff relied not simply upon the thumbnails or snippet (as the case might be), but also upon the content of an underlying webpage.

The plaintiff pleaded a number of imputations — both false and true innuendos. He succeeded upon only one imputation — that is, that he was ‘so involved with crime in Melbourne that his rivals had hired a hitman to murder him’. It could not be doubted that this imputation mainly rested on the content of the online article to which we have referred.

We do not understand that there ever was, or is now, any evidence that the plaintiff had, or has, any connection with any of the actual or reputed criminals depicted in the various Google image and web search returns. Rather, it appears, the whole edifice underpinning the defamation which is now pleaded traces back to the fact that the plaintiff was shot by an unknown assailant[35] in 2004, and to the incident being mentioned in an online ‘crime’ webpage. Building upon those matters and his earlier successful defamation proceedings against Google and Yahoo! (which themselves sparked both newspaper reporting and online reporting and comment), it appears that repeated searches over the ensuing years by the plaintiff (and evidently others, some of whom are certainly in his ‘camp’) of terms of the kind set out at [23] above have produced a self-perpetuating series of responses.
[35]Although in 2007 the plaintiff apparently claimed to know the person’s identity.

The judge’s reasons

It is unnecessary to recapitulate every part of the judge’s reasons. We focus upon the matters which were decisive.

His Honour noted that Google’s ‘primary contention’ was that a search engine proprietor could not be a publisher, either before or after receiving notice of any allegedly defamatory publication, in respect of the results of a search enquiry. Google’s second contention was that the plaintiff had no real prospect of success in establishing that the search engine results underpinning his claim were defamatory. Its third contention was that as a search engine operator it should have the benefit of an immunity from liability for defamation. His Honour ultimately concluded that:

The submissions advanced on behalf of Google fall well short of establishing that Mr Trkulja has no real prospect of establishing at trial that Google is a publisher and/or that any of the material about which he complains is defamatory. Google’s invitation to the Court to confer an immunity out of thin air is rejected.[36]

[36]Reasons [77].

We must say more about the reasoning which led to those conclusions.

Respecting the publication issue, the judge stated that Beach J had been plainly correct in observing, in the earlier Google proceeding, that ‘[t]he question of whether a particular internet service provider might be a publisher in respect of defamatory material published through or via, or with the assistance of a particular internet product is “fact sensitive”’,[37] this observation having been endorsed by Deputy Justice Ng of the Hong Kong High Court in Yeung v Google Inc.[38]
[37]Reasons [9], referring to Trkulja v Google (No 5) [2012] VSC 533, [27].
[38][2014] HKLRD 493, [105] (‘Yeung’).

That led on to his Honour identifying the factual circumstances relied upon by the plaintiff. There were two bodies of material — the images and web matter set out in Annexures A and B.[39]
[39]Reasons [11]–[13].

Having defined the defamatory meanings in respect of which, in reliance upon false innuendo, the plaintiff relied, the judge then stated that the plaintiff relied upon the composites of the search terms and the results. We have already said that, despite ambiguity, we will treat the pleading as being to that effect.

The judge then identified the plaintiff’s complaint more closely:

[H]e complains about Google’s search engines linking his name and/or image with material relating to the Melbourne criminal underworld in the results that Google’s search engine generates. This is illustrated by the fourth page of Annexure B to the amended statement of claim. Under the heading ‘Melbourne underworld criminals’ there are four separate images: Mr Trkulja, Judith Moran, Matthew Johnson and Tony Mokbel. Mr Trkulja’s complaint is that the search term ‘Images for Melbourne underworld criminals’ has generated his image linked with three convicted murderers.[40]

[40]Reasons [16].

As we earlier observed, the page selected by the judge as illustrating the nature of the plaintiff’s claim — page four of Annexure B — was the only page of either Annexure in which a thumbnail of the plaintiff appeared exclusively in the company of thumbnails of convicted criminals. Moreover, accurate as his Honour’s part reference to the particular page was, it did not address the question whether it was permissible for the plaintiff to rely upon that page alone (but considered in its entirety) to establish potentially defamatory meaning.

His Honour next stated that the plaintiff did not allege that Google was ‘a subsidiary or secondary publisher of defamatory matter which had been published by a third party’.[41] This led on to his observation that, ‘If there is any author of the material that is the subject of Mr Trkulja’s complaints, it can only be Google. Either Google is the publisher of the material complained of or there is no publisher at all’.[42]
[41]Reasons [17].
[42]Reasons [17].

We pause again to make these observations. First, as will be seen, a question arose in the course of the hearing in this Court as to the possible relevance of the notice given by the plaintiff to the defendant, dated 3 December 2012. The debate led into the question whether the plaintiff advanced a case other than that the defendant was a primary publisher. The ultimate answer to that question was ‘no’.

Second, in the observation noted at [78] above, the judge must be understood to have used the word ‘publisher’ in its legal sense in the context of defamation law. There is no doubt that, in response to terms inputted by the plaintiff, the Google search engine produced search results, and made autocomplete predictions, which were visible on the web browser of the searcher, and which could be, and were, printed out by the searcher. The question which must presently be decided, however, is whether the defendant has established that the plaintiff has no real prospect of making out his plea that those search results, and/or the autocomplete predictions, were published by it in the legal sense.

The judge next noted submissions for Google that in no circumstances, whether on notice or not, could it be, as proprietor of a search engine, the publisher of search results produced automatically by algorithms in response to a user’s request. He noted Google’s reliance on Bunt v Tilley,[43] Metropolitan International Schools Ltd v Designtechnica Corporation,[44] Tamiz v Google Inc,[45] and Bleyer v Google Inc.[46] Google’s submission, he noted, was that ‘[t]he principled approach is to focus on the defendant’s intention to publish the actual matter complained of’. Here, no such intention was present, even as a matter of inference.
[43][2006] 3 All ER 336 (‘Bunt’).
[44][2011] 1 WLR 1743 (‘Metropolitan Schools’).
[45][2012] EWHC 449 and, on appeal, [2013] 1 WLR 2151 (‘Tamiz’).
[46](2014) 88 NSWLR 670 (‘Bleyer’).

Foreshadowing his ultimate conclusion, the judge then said this:

Assuming in Google’s favour that it had no intention of publishing the particular combination of words and images which are the subject of Mr Trkulja’s allegations, it does not follow that Mr Trkulja has no real prospect of establishing at trial that Google is a publisher of the alleged defamatory material. To the contrary, provided that Google had an intention to publish the results that its search engine produced and of which Mr Trkulja complains, Google may still be found to be a publisher.[47]

[47]Reasons [21].

The last sentence of the passage just cited was at the heart of the reasoning of Beach J in Trkulja (No 5). So it is unsurprising that the judge in the present case then proceeded to analyse the circumstances and the reasoning in that earlier matter. It had been submitted for Google that the ruling of Beach J was clearly wrong. Having analysed the ruling, his Honour rejected the submission. He did so in part by consideration of the reasons of Beach J, in part by his own analysis of the authorities upon which Google relied, and in part in reliance upon authorities which, in his Honour’s view, supported the conclusion reached by Beach J.

It is not necessary to set out in any detail the judge’s reasons for concluding that the authorities relied upon by Google did not impugn the conclusion reached by Beach J. We do mention, however, the judge’s conclusions that — (1) the Court of Appeal decision in Tamiz supported the position that, once placed on notice by the plaintiff of the alleged defamatory material, it was arguable, by its failure to remove the material within a reasonable period, that Google made itself responsible for the continued presence of the material and so became a publisher of that material, if it was not a publisher from the outset;[48] and (2) that the decision of McCallum J in Bleyer did not support Google’s contention that in no circumstance, prior to or post-notification, could it be a publisher. McCallum J had expressly refrained from making a finding that, post-notification, Google could not be a publisher.[49]
[48]Reasons [38].
[49]Reasons [43].

Further, the judge stated that he disagreed with the conclusion of McCallum J that Beach J had erred in Trkulja (No 5) in concluding that ‘[t]he performance of the function of the algorithm in that circumstance is capable of establishing liability as a publisher at common law’. Rather, Webb v Bloch,[50] Thompson v Australian Capital Television Pty Ltd,[51] Oriental Press Group v Fevaworks Solutions Pty Ltd[52] and Duffy v Google Inc[53] supported the proposition that the question whether Google is a publisher is to be determined by reference to its participation in the publication.
[50](1928) 41 CLR 331 (‘Webb’).
[51](1996) 186 CLR 574 (‘Thompson’).
[52][2013] 5 HKC 253 (‘Fevaworks’).
[53](2015) 125 SASR 437 (‘Duffy’).

We should refer also to the following passages in the judge’s reasons, which endorsed the correctness, as his Honour concluded, of the ruling of Beach J in Trkulja (No 5):

54.Employees of Google create the algorithms which automatically generate the search results which are the subject of Mr Trkulja’s complaint in the current proceedings. Arguably, they stand in a position similar to the solicitor Norman in Webb. Their skill and expertise is employed by Google for the purpose of creating a search engine which publishes results to online users. As Beach J observed in Trkulja, the automated systems produced the search results which they were designed to produce. If Google intends its search engines to publish material on the internet in response to user queries, whatever that material might be, it is arguable that this makes Google a publisher of the material.
55.In [18] and [19] of Trkulja, Beach J drew an analogy between the position of Google as the operator of the search engine and authorities which have held newsagents and libraries as being publishers notwithstanding the absence of a specific intention to publish defamatory material. Plainly, Beach J was referring to a very long line of authority dating back to the late 19^th century to the effect that newsagents and libraries may be publisher notwithstanding the absence of an intention to publish particular material which is defamatory. This line of authority commences with Emmens v Pottle and Vizetelly v Mudie’s Select Library.
56.No Australian court has held that Emmens or Vizetelly were wrongly decided. Both cases were cited with approval by the High Court in Thompson. In Thompson, Channel 7 operated a television station in the Australian Capital Territory. On 21 February 1984, it broadcast a program entitled ‘The Today Show’. The program was produced live by Channel 9 from its studios in Sydney. The program included a live interview with a young woman during which it was alleged that her father, Mr Thompson, had committed incest with her from the time she was seven years old and had fathered a child to whom she had given birth when she was 14. There was no evidence to indicate that there was any truth in this allegation. Thompson sued Channel 7 seeking damages for defamation. The High Court confirmed the availability under Australian law of the defence of innocent dissemination. Brennan CJ, Dawson and Toohey JJ cited with approval the following passage from Duncan and Neill on Defamation:
It is submitted that it would be more accurate to say that any disseminator of a libel publishes the libel but, if he can establish the defence of innocent dissemination, he will not be responsible for that publication.[54]

[54]Reasons [54]–[56] (citations omitted).

The judge, as will now be evident, repeatedly returned to the question of intention, characterised as the intended operation of the Google search engine to produce the results which were displayed. A further example of his Honour’s reasoning in this connection was his statement that:

Google authorises for its own commercial purposes the publication of its search engine’s results on the internet. Its search engine was established and is maintained by its employees. The results generated by its search engines are the result of the operation of the algorithms created by its employees. Even if Google does not intend its search engine to produce results linking Mr Trkulja’s image with those of convicted criminals, there is no suggestion that this outcome was anything other than the product of the intended operation of the search engine. Applying the reasoning of the High Court in Thompson, Google’s ignorance of the specific material generated in response to any given user query does not prevent it from being found liable as a publisher.[55]

[55]Reasons [59].

The last sentence of the paragraph just cited was an apparent reference to the situation whereby a broadcaster of electronic material received from another might be accounted a primary publisher. But whether that was the foundation for his Honour’s conclusion with respect to publication in the instant case is uncertain. Of this, more later.

The judge’s understanding was that Google, by its submissions, was seeking to conflate two discrete issues — (1) whether it had published defamatory material; and (2) whether it could avail itself of the defence of innocent dissemination. He surmised, perhaps, that Google would conduct a case that it was not a publisher at all, but that if it was held to be a publisher, then it was a secondary publisher and could avail itself of an innocent dissemination defence.

In the end result, as we noted earlier, his Honour rejected Google’s argument that it could not be held to be a publisher of the allegedly defamatory material in the circumstances of this case. Indeed, he concluded that it was

strongly arguable that Google’s intentional participation in the communication of the allegedly defamatory results relating to Mr Trkulja to users of the search engine supports a finding that Google published the allegedly defamatory results.[56]

[56]Reasons [67].

It remains to mention one other aspect of his Honour’s reasoning on the publication issue. On the footing that the ruling in Trkulja (No 5) was applicable to the circumstances, albeit different, in the present case, and having regard to his conclusion that the ruling was correct, his Honour gave consideration to whether an issue estoppel might arise whereby Google could be precluded from arguing a ‘no publication’ point. He did not finally resolve that issue, but he did state that it was arguable that the plaintiff ‘may have grounds for contending that the reasoning of Beach J in Trkulja (No 5) at [18] and [28] was legally indispensable to his judgment’.[57] Whilst he would have concluded in any event that Google had not established that the plaintiff’s ‘publication allegations have no real prospects of success… Nevertheless, the potential availability of a plea of issue estoppel reinforces this conclusion.’[58]
[57]Reasons [29].
[58]Reasons [30].

We turn to the second contention advanced below, that is, that the impugned material was not defamatory. The judge dealt with the contention quite shortly:

70.For present purposes, it is necessary for Google to establish that Mr Trkulja has no real prospect of establishing that the images and completions generated by Google’s search engine carry the alleged defamatory imputations for which he contends. Whilst Mr Trkulja may ultimately be unsuccessful at trial in establishing that the material in question is defamatory, there is no proper basis for concluding that he has no real prospect of establishing that any of the material he complains of is defamatory.
71.I have referred earlier in this judgment to a compilation of images of Mr Trkulja alongside images of convicted criminals Judith Moran, Matthew Johnson and Tony Mokbel. These images form part of Annexure B to Mr Trkulja’s statement of claim and appear under the heading ‘Images for Melbourne Underworld Criminals.’ It is certainly arguable that a reasonable internet search engine user would look at this compilation of images and assume that Mr Trkulja was also a convicted criminal.[59]

[59]Reasons [70]–[71].

There, as earlier in his reasons, his Honour referred to the only page of the 27 pages comprised within Annexures A and B which displayed (together with other content) a compilation of images of the plaintiff and other persons, each of the others being a convicted criminal. The judge evidently attributed particular significance to this compilation.

Respecting the immunity argument advanced by Google, the judge concluded that ‘[i]f Google is to have immunity from suit, it must be bestowed upon it by the legislature.’[60] The Act prescribed an entire division devoted to statutory defences to defamation actions. So, his Honour concluded, ‘Parliament’s willingness to prescribe these statutory defences militates heavily against the introduction of an internet search engine immunity into the common law of Australia.’[61]
[60]Reasons [75].
[61]Reasons [76].

Grounds of application

The proposed grounds of appeal are as follows:

1.The learned primary judge erred in failing to find that the plaintiff had no real prospect of establishing that Google Inc is a publisher of the materials upon which he sues.
2.The learned primary judge erred in finding that it was arguable Google Inc is a publisher of automatically generated (i) search results and (ii) completions of search queries, because Google Inc intentionally developed and made available to the public its search engine.
3.The learned primary judge erred in failing to find that, for a defendant to be held liable as a ‘publisher’, the plaintiff must prove intention to communicate the words in question.
4.The learned primary judge erred in failing to have regard to the evidence in this case, which showed that:
a.the web is comprised of many trillions of documents (webpages), the contents of which vary enormously;
b.it is easy for anyone to upload materials on the web;
c.the web is continually changing and growing, and as a consequence the same search performed at different times can (likely, will) return different results;
d.the same search performed by two different users can (likely, will) return different results even if the two users should make that search at exactly the same time;
e.in order for the Google search engine to be of any use in locating information that is on the web at any given time, it must be designed to utilise fully automated programs that must be capable of being executed extremely quickly;
f.the Google search engine only returns such results to a user in response to that user’s query;
g.every month, over 100 billion searches are made by users of the Google search engine and, of those searches, 15% (or approximately 500 million each day) are ones that have never been made before; and
h.the Google search engine is not capable of ascertaining what meanings may be conveyed by the words or images constituting the content of a particular webpage, nor is the Google search engine capable of ascertaining meanings in respect of trillions of documents and/or the unfathomably large number of different possible ways in which parts of those documents may be combined in the search results returned to a user.

5.The learned primary judge erred in failing to find that intention with respect to the words in question is not established by showing no more than a defendant developed and made available to the public a mechanism capable of returning, out of an unfathomably large number of possible search results, the ones complained of.
6.The learned primary judge erred in finding that Google Inc had wrongly sought to conflate two issues, namely whether it had published defamatory materials and, if so, whether it could avail itself of a defence of innocent dissemination.
7.The learned primary judge erred by conflating the two issues identified in ground (6) above, and by wrongly considering that the defence of innocent dissemination was relevant to whether the plaintiff could discharge the onus of proving that Google Inc was the ‘publisher’ of automatically generated (i) search results and (ii) completions of search queries.
8.To the extent that the learned primary judge relied upon ‘the potential availability of a plea in issue estoppel’ to support the conclusion that Google Inc had failed to show that the plaintiff had no real prospects of success, the learned trial judge erred in so doing, for the following reasons:
a.identification of the fact and extent of any issue estoppel depends solely on the earlier decision said to give rise to the estoppel — it does not require consideration of what may be pleaded in reply;
b.for Google Inc to be precluded by issue estoppel there had to have been, in the first Trkulja decision, a determination that it was the publisher of all search results that may be returned by its search engine, without which determination the earlier decision could not stand;
c.there was no such determination made in the first Trkulja decision;
d.further, no such determination even if it were made (which it was not) was legally indispensable to the dismissal of Google Inc’s non obstante application.

9.The learned primary judge erred in failing to find that the plaintiff had no real prospect of establishing that automatically generated (i) search results and (ii) completions of search queries were defamatory of him.
10.The learned primary judge, having decided he would consider and follow the decision of Blue J in Duffy v Google Inc (handed down after judgment had been reserved), erred in failing to:
a.follow that decision, insofar as it holds that automatically generated completions of search queries are not capable of being defamatory; and
b.apply that decision, by parity of reasoning, to automatically generated search results consisting of combinations of images.

11.The learned primary judge erred in failing to find that Google Inc, as the owner/operator of a search engine, is immune from liability in defamation when the matters complained of are automatically generated (i) search results and (ii) completions of search queries.

We make two observations. First, in substance, the 11 grounds raise again the three submissions advanced by Google below — that is, (1) Google could not be held to be a publisher of the matter complained of (grounds 1 to 8); (2) the plaintiff had no prospect of proving that the impugned matter was defamatory of him (grounds 9 and 10); and (3) Google ought be immune from liability in defamation in respect of automatically-generated search results and autocomplete predictions produced in response to search enquiries (ground 11).

Second, the grounds allege many errors on the judge’s part. But the subject of the application for leave to appeal, and of the appeal if leave be granted, is the orders which his Honour made, most particularly the order dismissing Google’s application by its further amended summons of 12 February 2015. Discerned errors in reasoning would not necessarily impugn the correctness of the orders made.

Grounds 1–8. Publication?

The question is whether Google has established that the plaintiff has no real prospect of making out his plea that Google published the impugned material. In order to answer that question, we think it is logical to consider the concept of publication in the context of defamation principles as developed by the common law — at first with respect to print, later with respect to radio and television broadcasts; next to consider the impact, if any, of the Act upon that body of law; and then to consider authorities touching upon the operation of defamation law in the context of the internet.

It must immediately be said, in our opinion, that to speak of the operation of defamation principles in the context of the internet is an oversimplification which is apt to mislead. There are a number of different ways, having distinct purposes, in which material can be placed on, and be accessible via, the internet. Authorities to which we will refer demonstrate the point. It does not follow, because the law of defamation has been held to operate in a particular way with respect to certain material placed on and accessible via the internet, that the same result should obtain with respect to material having a different genesis.

Publication at common law

In a well-known passage in Webb,[62] a case concerning defamation by a written document, Isaacs J approved the following statement as to the level of participation necessary to constitute a person a publisher:

In Parkes v Prescott Giffard QC quotes from the second edition of Starkie:
All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus, if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected.

[62](1928) 41 CLR 331, 364 (citations omitted).

So it is, in the case of a newspaper article, that not simply the author, but also the editor, the publisher and the printer[63] will be the publishers of defamatory matter; whilst in the case of a television broadcast, the ‘on air’ author of a defamatory statement, the producer of the programme and the broadcaster will be legally responsible.[64]
[63]But see now the possible operation of s 32 of the Defamation Act2005.
[64]Paraphrasing Michael Gillooly, The Law of Defamation in Australia and New Zealand (Federation Press, 1998).

In particular circumstances, there also fall into this class of publishers persons who played no part in the chain of distribution, but who are caught by the act of another. Instances are the situations which arose in Byrne v Deane[65] and Urbanchich v Drummoyne Municipal Council.[66]
[65][1937] 1 KB 818 (‘Byrne’).
[66](1991) Aust Torts Reports 81-127 (‘Urbanchich’).

In Byrne, the plaintiff was a member of a golf club. The two defendants were the proprietors of the club, and the female defendant was also its secretary. Several automatic gambling machines had been kept by the defendants on the club premises for the use of members. Someone gave information to the police, and the machines were removed. On the following day, a document which was variously described in the Court of Appeal as a ‘lampoon’ and ‘doggerel verse’ was posted on the wall of the club. The plaintiff asserted that it defamed him, by implying that it was he who had got the police involved. The document’s existence was brought to the attention of the defendants, but they did not remove it. The plaintiff succeeded at trial, but failed on appeal, a majority holding that the words complained of were not capable of a defamatory meaning.

For present purposes, all that is relevant is what their Lordships said about publication.

Lord Justice Greer said this:

In my judgment the two proprietors of this establishment by allowing the defamatory statement, if it be defamatory, to rest upon their wall and not to remove it, with the knowledge that they must have had that by not removing it would be read by people to whom it would convey such meaning as it had, were taking part in the publication of it.[67]

[67]Byrne [1937] 1 KB 818, 830.

Lord Justice Slesser was of opinion that the plaintiff had failed to show publication against the male defendant, but that there had been some evidence of publication on the part of the female defendant. He said this:

I think having read it, and having dominion over the walls of the club as far as the posting of notices was concerned, it could properly be said that there was some evidence that she did promote and associate herself with the continuance of the publication in the circumstances after the date when she knew that the publication had been made.[68]

Having concluded that the basis upon which the plaintiff seeks to pursue his case that Google published defamatory matter is not arguable,[231] it appears to us that service might be set aside on that basis alone. That also would be unsatisfactory, because we do consider, had the plaintiff articulated his case on the basis of secondary publication, that such basis would have been fairly arguable.
[231]The position could be no different if, as plaintiff’s counsel insisted was necessary, there was cross-examination at trial.

It might be, if service was set aside, that the plaintiff would be able to re-plead, re-cast his argument, re-serve Google out of the jurisdiction, and then await the inevitable challenge to such service. Alternatively, absent any other problem, it might be that the Court would give the plaintiff the opportunity of re-pleading, and of advancing a different case.

Ultimately, however, the difficulties of which we have been speaking are not a live issue. That is because, in our opinion, the allegedly defamatory matter upon which the plaintiff relies is incapable of conveying a defamatory meaning. It is to that issue which we now turn. We pause only to note that the possible issue estoppel to which reference was made by the judge would face considerable difficulty of application on the case advanced for the plaintiff, whatever other difficulties it might have. That is because, again, the issues in Trkulja v Google (No 5) concerned secondary publication whereas the plaintiff now pursues a case based on primary publication.

Grounds 9–10. Is the matter complained of capable of defamatory meaning?

We have already described, in some detail, the content of the images matter and web matter upon which the plaintiff sues.[232] We have referred also to the inputted search terms,[233] and to the question whether the alleged publication included the inputted search terms.[234] Again, we have referred to the defamatory imputations allegedly conveyed by the images matter and web matter as false innuendo,[235] and to a pleading of true innuendo with respect to the images matter.[236] The question is whether, as pleaded, the images matter or web matter is capable of conveying a defamatory meaning.
[232]So far as it relates to publication of the ‘images matter’, see [17]–[21] and [24]–[26] above. So far as it relates to the ‘web matter’, see [31]–[42] above.
[233]At [23] above.
[234]At [26]–[27] above.
[235]At [44] above.
[236]At [45] above.

The judge’s resolution of that question was succinct. Earlier, we have set out the relevant part of his Honour’s reasons.[237] As we have noted, his Honour’s conclusion fastened upon the compilation of four images which is a part of page four of Annexure B to the ASoC.

Submissions for Google

[237]At [92] above.

It was submitted for Google in writing that the ‘ordinary reasonable individual user’ of the search engine would know that the indicia received in response to a query are ‘no more than indicators of what some of the materials that respond to the query might be, and where those materials can be located on the web’. The ordinary reasonable user ‘would not conclude that those abstract indicia are intended to be understood as true’. Further, in Duffy, Blue J had held that autocomplete predictions were not capable of conveying a defamatory meaning to the ordinary reasonable user of the search engine; and like reasoning should apply to compilations of images.

Orally, counsel submitted that the level of understanding of the ordinary reasonable user of the search engine was

at least the level attributed by the High Court in [ACCC], which is an understanding that the search results are the product of a search engine which is entirely automated. The results are the product of the user’s search terms, and the results are in the nature of references only, references to material that is found elsewhere in the web, that is decontextualized.

There was this interchange between counsel and the Bench:

COUNSEL: … so the ordinary reasonable person would suspend judgment about inferences or assumptions about the connection between one image and another because they have the immediate ability to get more context concerning that matter. So why would they jump to judgment? That would not be a reasonable viewer’s stance about the matter.
ASHLEY JA: And the same with autocompletions?
COUNSEL: Yes, your Honour, the same. An autocompletion a reasonable person would not consider is a statement that they would attribute any defamatory meaning or inference to. I guess all of this emphasises, your Honour, that context is singularly important in this question of capacity to convey a defamatory meaning, and there is a real question about how much context and how deep. But stopping at the level that the High Court thought was significant, for its purposes, in the misleading case, that is sufficient for our purposes.
We know what the High Court attributed to an ordinary user of the internet in the Google case. It is supported by the material here and, indeed, it is a fortiori when you have got images, you have simply got a collection of photographs, and a person receiving that result will know that you can’t jump to any conclusion about the connection between one photograph and the next. Some might recognise the former Chief Commissioner of Police, some might recognise Jill Meagher, et cetera, et cetera. No ordinary person would jump to the defamatory imputation or inference that is alleged.

…
Our submission is an ordinary reasonable user of a search engine — who it must be remembered has entered the search query in the first place, will have the degree of knowledge of the operation of the internet and the nature of search results, and the ability to contextualise them by clicking on them — that person would not think less of anyone because of the automated display by the search engine of a collection of images, or the automated completion of a search query that is partly completed.
Now, if we are right about that, we would submit that the proper conclusion to reach is that the collective or composite images relied upon are incapable of supporting a finding of defamation and, therefore, on that ground the case should be stopped.

Submissions for the plaintiff

It was submitted in writing for the plaintiff that ‘capability’ of conveying a defamatory meaning was not raised below. It had only been submitted that the alleged publication ‘was not defamatory’.

It was next submitted that it mattered not that the words were written by a human or by operation of an algorithm. The important question is what the words which are complained of mean.

It was further submitted that judicial notice could not be taken, and there was no proper evidence, of the extent of knowledge of the nature of search engine results which, as Google would have it, were to be attributed to the ordinary reasonable user of the search engine.

Orally, counsel submitted that the ‘capability’ argument advanced for Google was not the ‘traditional … submission advanced in cases such as Favell’.[238] It was a ‘rather contrary discrete submission’. Further, there was a question whether ‘the Court should, in any way, place significance on the way in which the publication reaches the third party’. That was not something to which the common law had given any significance in the past.
[238]Favell v Queensland Newspapers Limited (2005) 221 ALR 186 (‘Favell’).

Upon the question whether Annexures A and B to the ASoC — the particularisation of the defamatory matter pleaded by paragraphs 16 and 18 of the ASoC — were to be read as a whole, counsel submitted that the jury would be entitled to look at any one of the particularised pages and conclude that it was defamatory of the plaintiff. So, respecting the images matter, the jury was not bound to look at all 20 pages and try to draw an imputation from it. Counsel referred to Burrows v Knightley.[239] Counsel submitted also that the defendant would not be entitled to point to other pages in either Annexure to show that images displayed were not necessarily of Melbourne criminals at all.

Submissions for Google in reply

[239](1987) 10 NSWLR 651 (‘Burrows’).

Counsel for Google submitted that the question whether words complained of have a capacity to defame is a question of law for the Court, not a jury question. He further submitted that the publication must be taken as a whole. Clearly, a composite publication was relied on. The question was what single meaning the entirety of the publication conveyed. There is a limited ability to dissect a matter artificially in pleadings.

Analysis

In Favell, Gleeson CJ and McHugh, Gummow and Heydon JJ said this:[240]

Bearing in mind the dual nature of the application to Helman J, seeking both a striking out of certain paragraphs in the amended statement of claim, and the entry of summary judgment for the respondents, on the ground that the pleading disclosed no reasonable cause of action, the question for decision was whether the material published was capable of giving rise to the defamatory imputations alleged. In the Court of Appeal, McPherson JA correctly said:
Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.

[240](2005) 221 ALR 186, 189 [6].

Google’s application in this matter, for reasons explained at [3] to [5] above, falls to be considered in the same way.

The question whether the matter relied upon by the plaintiff is capable of giving rise to the defamatory imputations alleged involves considerations of capability at two points. Framed as questions, they are: (1) is the matter complained of capable of conveying the pleaded imputations;[241] and (2) are such imputations[242] capable of being defamatory?
[241]Or any of them.
[242]Or any of them.

As we explained at [13] above, it is necessary to consider Google’s application in the context of the plaintiff’s pleaded case, subject to resolving the identified ambiguity in the plaintiff’s favour. In our opinion, it is quite clear, as was submitted for Google, that the plaintiff has pleaded, in the case of the images matter and the web matter, a composite publication. The reason why publication has been alleged in that form need not be speculated upon. There are cases in which an issue has arisen whether a plaintiff is entitled to rely upon composite publication. Burrows was such a case. In other instances, a defendant has attempted to force a plaintiff to ‘strike in’ additional material so as to create a composite publication. Cripps v Vakras[243] was such a case. Generally speaking, it has been accepted that it is for the plaintiff to choose whether he or she pleads composite or discrete publication.[244] There are limits to what may be pleaded as a composite publication, but the question whether the plaintiff’s pleading in the present case travels beyond those limits was not a live matter either below or in this Court.
[243][2014] VSC 110.
[244]See Phelps v Nationwide News [2001] NSWSC 130, [22].

It follows from what we have said that the single meaning to be attributed to the images matter and the web matter is to be determined having regard to the entirety of the matter relied upon, not some fragment of it. That is so, although in the case of the web matter, the printouts comprising Annexure B are of three different kinds.

In the present case, if any of the defamatory imputations which are pleaded was arguably conveyed, it could not be doubted that it was capable of being defamatory. So the question to be determined is whether Google has established that the plaintiff has no real prospect of success in attempting to show that the matter complained of is capable of conveying any of the pleaded imputations.

In that inquiry, in our opinion, Google was correct to submit that the question must be determined by reference to the understanding of an ordinary reasonable user of a search engine such as the Google search engine, without which the facility to navigate the trillions of pages on the world wide web would be gravely compromised. The law constantly adapts to changing circumstances. The ordinary reasonable reader of a book or newspaper became the ordinary reasonable viewer of a television program. The internet, in its various manifestations, is a newer — though now by no means a new — vehicle for viewing printed words and images. It is quite clear that the use of search engines, and in particular the Google search engine, is ubiquitous worldwide. The capability of displayed search results to defame should be considered by reference to the ordinary reasonable user of such a site.

In our opinion, so approached, the plaintiff would have no prospect at all of establishing that the images matter conveyed any of the defamatory imputations relied upon. The characteristic of the 20 pages of printouts described at [25] above is very pertinent to that conclusion. So, also, in our opinion, are the considerations to which we have referred at [145] to [151] above. It might be said, if a contrary conclusion was to be reached, that the list of persons potentially defamed would be both large and diverse. We do not accept that such a conclusion would be sound.

We should add that the image which is at page 14 of Annexure A, an image of autocomplete predictions and other material posted on ozsoapbox.com, could not carry any of the imputations upon which the plaintiff sues. That is so for a number of reasons.

First, we agree with the conclusion of Blue J in Duffy that autocomplete predictions are incapable of being defamatory. As his Honour put it, an

ordinary reasonable person reading autocomplete predictions would understand that they are neither a statement by Google nor a reproduction by Google of a statement by someone else… Rather they comprise a collection of words that have been entered by previous searchers when conducting searches.[245]

His Honour might have added that the autocomplete predictions which are returned in a particular instance are strongly influenced by the particular user’s previous searches.

[245]Duffy (2015) 125 SASR 437, [375].

Second, the image itself refers to the ‘website for this image’, stating that, ‘in a nutshell, Michael Trkulja’s beef with both Yahoo! and Google was that …’. Also on the page are advertisements for a defamation lawyer and an online solicitor. It is, in the event, crystal clear that the image has to do with the plaintiff’s earlier successful defamation proceedings.

Third, whilst, viewed discretely, this particular page could not be considered capable of carrying any of the pleaded imputations, that position is a fortiori when the page is considered in the entire context of the images matter comprised by pages one to 20 of Annexure A.

We turn to Annexure B. In our opinion, again, the plaintiff could not possibly succeed in showing that the web matter upon which he relies carried any of the pleaded defamatory imputations.

Focusing discretely upon pages five to seven, what we have said at [393] above is in point.

We turn next to page one of Annexure B. Considered discretely, it is essentially of the same character. As we earlier noted, it is a screenshot of comments made on a webpage referable to the plaintiff’s earlier proceeding against Google — as can be seen from the URL at the bottom of the page. The page shows part of an autocompletion, and then mordantly refers to the plaintiff being ‘Streisand’d’. The whole point of this page is that the plaintiff’s successful defamation proceeding had produced the Streisand effect. Far from carrying any of the defamatory imputations pleaded by the plaintiff, the commentator was pointing out that the plaintiff’s successful defamation proceedings — in which he had been awarded damages in respect of an imputation that he was somehow connected with the Melbourne underworld — had not brought matters to an end.

Still focusing on the pages of Annexure B discretely, we have already described the content of page two.[246] The only reference to the plaintiff is in connection with his earlier successful defamation proceeding against Google, under the heading ‘Google defamation case’ and ‘publishing in the digital age — crikey’. How that could possibly be said to be defamatory of the plaintiff we do not understand. The fact that the reference to the plaintiff’s earlier successful defamation proceeding was on a results page which adverted to the television series, ‘Underbelly’, which contained thumbnails of persons associated with the Melbourne underworld (none of which were the plaintiff) and which referred to a reputed criminal named Arico, could not possibly deflect attention from the import of the only reference to the plaintiff. We add only that the sample thumbnails displayed on this printout were the five images, not including that of the plaintiff, which appear in that sequence on the top line of page 17 of Annexure A. This seems unlikely to be mere coincidence, because both searches were conducted on 23 November 2012.
[246]See [36] above.

Page three is a printout of another web search conducted on 23 November 2012. We have described its content at [37] above. Having regard to the fact that the thumbnail of the plaintiff was contained in a random compilation of images which included a crime reporter, the Google logo, and text dealing with the plaintiff’s earlier successful defamation proceeding, and that the only relevant snippet concerned the plaintiff’s successful defamation proceeding against Yahoo!, we fail to see how anything on this page of the Annexure could possibly be defamatory of the plaintiff.

We turn to page four of Annexure B. We have referred to its content at [38] above. It may be regarded as the high water mark of the material relied upon by the plaintiff, because of the fact that the return of images included the plaintiff and three criminals. Pausing, and underlining the random nature of the images displayed, the four images in the particular sequence are the first four images from the left on the top line of page five of Annexure A. It is noteworthy, for reasons to which we will advert in a moment, that the date of the image search which returned page five of Annexure A is unknown, it being the only page of Annexure A which is undated; and that page four of Annexure B is also undated. It can be said, however, that the two searches were apparently conducted about 16 minutes apart, and — one might infer — very probably on the same day.

The heading under which the thumbnails on page four appear is ‘Images for Melbourne underworld criminals — report images’. It is a similar heading to that which appears above the compilations of images on pages two and three of Annexure B. A reasonable user of the internet, aware of the unpredictable results which are generated by an image search — well exemplified by the 20 pages of Annexure A — would immediately apprehend, in our opinion, that the thumbnails on page four of Annexure B were of no different character. They could not convey the defamatory imputations pleaded by the plaintiff.

But there is a further matter. If the plaintiff had pursued his case as one of secondary publication, then, so far as notice may be relevant in such a context, notice was not given until 3 December 2012. It is scarcely conceivable that assumed secondary publication prior to that date would not attract a successful innocent dissemination defence. But according to the plaintiff’s particularised case, it is impossible to say whether page four of Annexure B (and the same is the situation with page five of Annexure A) was published after the giving of notice. Even if the defendant carried the burden of ultimate persuasion that page four was published before notice was given, the plaintiff’s pleaded case would raise no evidentiary case to the contrary.

Thus far, we have considered capacity to defame, in the context of the pages of Annexure B, by focusing upon each individual page discretely. But when the pages are viewed in their entirety, Google’s submission that the matter complained of is not capable of making out the defamatory imputations complained of — because the ordinary reasonable user of the internet would not understand the content of the search results in such a way — is emphasised. So, for more than one reason, in our opinion, the judge erred in finding that the matter complained of was capable of being defamatory of the plaintiff; and, in particular, his Honour erred in placing store upon page four of Annexure B in the way which he did.

In the event, we conclude that the matter upon which the plaintiff relies is incapable of conveying any of the defamatory imputations which are pleaded.

Ground 11. Immunity from liability?

The judge concluded that Google was capable of being a publisher of the material complained of by the plaintiff. We agree that, if his claim had been pursued in a way other than the way in which it was in fact pursued, this could be so.

His Honour further stated that if Google[247] was to have immunity from suit, it must be bestowed by the legislature. He observed that Division 2 of Part IV of the Act, which deals with a number of statutory defences, is relevantly silent. In his Honour’s view, that stood against the common law now introducing search engine immunity.
[247]Or it could be any search engine proprietor.

The immunity contended for by Google is quite specific. That is, that the owner/operator of a search engine ought have immunity from liability in a defamation proceeding when liability is said to depend on publication of automatically generated materials returned by the search engine in response to an individual user’s query.

Submissions for the parties

The parties advanced submissions in writing. They did not supplement them orally.

Google submitted in writing that:

41.The issue of whether the owner/operator of a search engine should be liable, in respect of automatically returned materials, is a novel one and difficult one. As earlier parts of these submissions demonstrate, there is no “settled rule of the common law”[248] that such a defendant is a publisher.
42.The public interest in freedom of speech (including the right to seek, receive and impart information) should be given effect in the development of the law of defamation.[249] The common law of defamation was developed by the courts; that development by the courts continues today.[250]
43.With due respect to [the judge], it cannot be correct that, in the novel circumstances presented by the Internet and search engines, the common law must nevertheless remain static, the Court must stay its hand, and members of the Australian community must wait and see whether six States and two Territories will legislatively provide. Just as the law of defamation has in the past evolved to address changes in communication media, it must now evolve to meet the challenges presented by the proliferation of Internet communications and, in particular, the role played by search engines.
44.Recognition of the immunity would protect what are, in contemporary society, essential channels of communication. Freedom of speech, including ability to research and obtain what others have written, is of fundamental importance to a democratic society. The immunity will also protect and foster growth of the digital economy, thereby increasing our society’s prosperity.[251] Without protection, search engine operators will have to err on the side of caution and remove even lawful content when threatened with court action. This Court should hold that the immunity is available to search engine operators.

[248]State Government Insurance Commission v Trigwell (1979) 142 CLR 617 at 633 (Mason J).

[249]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Reynolds v Times Newspapers Ltd [2001] 2 AC 127; Jameel v Wall Street Journal Europe Sprl [2006] UKHL 44; Grant v Torstar Corp [2009] 3 SCR 640.

[250]The Uniform Defamation Acts do not constitute a codification of the law of defamation. See generally: section 6 of the Defamation Act 2005 (Vic); Setka v Abbott [2014] VSCA 287.

[251]See expert report of Dr Richard Mark Simes.

The plaintiff submitted that:

14.As articulated this proposition is advanced by the applicant regardless of whether or not notification has been given to the owner/operator of the search engine. Following notification at least, the proposition is self-evidently false. Again, however, the applicant is asking an appeal Court to address this most important of issues without a proper evidentiary base. Again, leave should be refused on discretionary grounds even if the applicant were to make the hurdle of “real prospect of success”.
15.The reliance upon Lange v ABC in para 42 of their Written Case (A16) is misconceived. The implied constitutional freedom addresses only discussion of “governmental and political matters” — not private matters.
16.As to paras 43 and 44 (A16) such arguments do not assist the applicant here. The lack of an evidentiary base is again repeated. If the applicant’s wishful thinking were to be accommodated the law of defamation in Australia would be rendered nugatory. Anyone wishing to defame a fellow citizen could use the internet in an anonymous way to do so.

Analysis

We are in no doubt that, so far as the law of defamation is concerned, the question of publication in the varying contexts of the world wide web gives rise to problems — some of greater and some of lesser difficulty. The problem of results produced by a search engine’s automated processes is an acute one. It has led to conflicting analyses in the common law world. The resolution to the issue of publication which we consider apt is not without its difficulties.

The great utility of search engines cannot be doubted. On the other hand, assuming that there is publication of automated search results, the prospect of a publication conveying defamatory imputations in a particular instance cannot be dismissed. A balancing of interests, in those circumstances, must be undertaken. We agree with the judge below that the balancing is a matter for Parliament, not the courts. The submission for Google that it would be too hard to get the various Australian jurisdictions to speak with one voice cannot deflect attention from what is the correct, rather than the expedient, course.

In the United States, with the emphasis in that country on free speech, legislation has, to an extent, addressed the problem of publication on the internet.[252] The legislation has produced, on occasion, an unhappy result: Carafano v Metrosplash.com Inc.[253] The American experience suggests that the content of any Australian legislation would require much thought. But one thing, in our opinion, is clear. If there is to be any immunity in favour of a search engine from liability for defamation, it must be conferred by legislation.
[252]47 USC 230.
[253]339 F 3d 1119 (9^th Cir, 2003).

Orders

Google should have leave to appeal against the orders made below on 17 November 2015, and a consequential costs order made on 30 November 2015. The appeal should be allowed. In lieu, it should be ordered that the plaintiff’s amended writ and amended statement of claim dated 13 June 2014 and their purported service on Google Inc be set aside.

Annexure 1

Annexure 2

Annexure 3

Annexure 4

[2016] VSCA 333

20 December 2016