Legal Research
Cases
Google Inc v Trkulja

Google Inc v Trkulja

Case [2016] VSCA 333 20 December 2016

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0124

GOOGLE INC

MILORAD TRKULJA (aka MICHAEL TRKULJA)

---

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)

---

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.

---

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Google Inc v Trkulja

Details

AGLC: Google Inc v Trkulja [2016] VSCA 333
Case: [2016] VSCA 333
Decision Date: 20 December 2016

CaseChat Overview and Summary

In the case of Google Inc v Trkulja, the plaintiff, Mr Trkulja, alleged that Google Inc, as the provider of an internet search engine, published search results that were defamatory of him. The dispute was brought before the Supreme Court of Victoria. The plaintiff argued that the search engine's results, including images, text, and autocomplete predictions, contained defamatory content that harmed his reputation. Google Inc challenged the plaintiff's claims, asserting that it was not liable for the content published by third parties and that the search results did not convey a defamatory meaning.

The court was tasked with determining whether Google Inc published the allegedly defamatory search results and if the plaintiff had relied on the matter as a basis for his defamation claim. The court also needed to decide if the matter relied on by the plaintiff was capable of conveying a defamatory meaning, particularly given that the publication was considered a composite publication. The court considered previous cases such as Metropolitan International Schools Ltd v Designtechnica Corporation, Trkulja v Google Inc (No 5), Bleyer v Google Inc, Yeung v Google Inc, Duffy v Google Inc, Crookes v Newton, and Niemela v Malamas in its deliberations.

The Supreme Court of Victoria found that the plaintiff's proceeding had no real prospect of success and set aside the writ, amended statement of claim, and the service of the writ outside the jurisdiction. The court relied on Agar v Hyde, the Civil Procedure Act 2010, and the Supreme Court (General Civil Procedure) Rules 2015 in reaching its decision. The appeal was allowed, and leave to appeal was granted. This ruling emphasised the importance of the real prospect of success criterion in defamation cases and highlighted the court's willingness to intervene in proceedings that were unlikely to succeed.

Orders