Nikolic v Twitter
[2020] VSC 101
•9 April 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2019 00126
| GORAN NIKOLIC & OTHERS (according to the attached Schedule) | Plaintiffs |
| v | |
| TWITTER INTERNATIONAL COMPANY & OTHERS (according to the attached Schedule) | Defendants |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 November 2019 |
DATE OF JUDGMENT: | 9 April 2020 |
CASE MAY BE CITED AS: | Nikolic v Twitter & Ors |
MEDIUM NEUTRAL CITATION: | [2020] VSC 101 |
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DEFAMATION – Application by the defendants for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) and/or striking out of the plaintiffs’ claim pursuant to Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 – Entitlement of a corporation to sue pursuant to s 9(2) of the Defamation Act 2005 (Vic) – Whether matters capable of conveying defamatory imputations – Barrow v The Herald & Weekly Times Pty Ltd [2015] VSC 263 – Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 referred to – Whether publication of search results gives rise to defamatory imputations – Summary judgment and strike out applications granted in part.
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APPEARANCES: | Counsel | Solicitors |
| The First Plaintiff in person (and by leave on behalf of the Second Plaintiff)* | ||
| For the First Defendant | Mr S Mukerjea | Macpherson Kelley Pty Ltd |
| For the Second and Third Defendants | Ms L De Ferrari SC with Mr S Mukerjea | Johnson Winter & Slattery |
* See Nikolic v Nationwide News Pty Ltd [2020] VSC 98, [16] – [17]
HER HONOUR:
Introduction
This is one of two proceedings brought by Mr Goran Nikolic (‘Mr Nikolic’) and a corporation he controls, Idaz09 Pty Ltd (‘second plaintiff’) arising out of what seems to be a case of online identity theft. A person unknown to Mr Nikolic has been using the Twitter handles ‘Rusty@idaz09’ and ‘Victory Nation:@idaz09nations’ (‘Twitter handles’) since December 2016 to post inflammatory material online, which is said by Mr Nikolic to be, among other things, racist, homophobic and anti-Muslim (‘offending material’). The offending material is also said to be hateful, to represent extreme far right views, to express anti-vaccination views, and to promote conspiracy theories, such as allegations that Australian politics is controlled by paedophiles. The second plaintiff, of which Mr Nikolic is the sole director and shareholder, conducts a business developing and producing identification and data security tools, and owns trademarks in a number of developed countries, with an international patent application underway. Mr Nikolic, who is also employed by the Commonwealth Government, has invented the technologies used by the second plaintiff, and is closely identified with the second plaintiff, which has as its overarching philosophy the utilisation of technological advances to create a ‘more secure, open and accessible society’.
Mr Nikolic considers himself to be tolerant and socially progressive, and is deeply perturbed at the thought of being associated with the allegedly reactionary opinions and inflammatory language used in the offending material. On 15 January 2019, the plaintiffs, then represented by solicitors, issued this proceeding against Twitter International Company (‘Twitter’), Google Inc, LLC (‘Google’) and Oath Inc (‘Yahoo’), alleging that by continuing to publish the posts from the Twitter handles, the defendants had defamed them. This proceeding highlights the shortcomings of traditional causes of action and legal remedies in redressing grievances arising out of the proliferation of communications, often anonymous communications, on online platforms, where it is not difficult for one person to assume the identity of another, including for malicious purposes.
This proceeding was issued when the plaintiffs were represented by solicitors. The statement of claim was prepared by the plaintiffs’ former solicitors, and alleged, in summary, as follows:
(a) the first defendant (‘Twitter’), from December 2016 to January 2019 published tweets including the offending material to all people visiting the Twitter website and searching the name of the second plaintiff and variants of that name;
(b) the offending material was said to give rise to the imputations that the plaintiffs are racist, homophobic, hold anti-Muslim views, hold views that Australian politics is influenced by paedophiles, and hold views that vaccines kill babies;
(c) the second defendant (‘Google’) and the third defendant (‘Yahoo’) republished the offending material to visitors to their websites who searched for the name of the second plaintiff and variants of that name;
(d) on or about 26 June 2018, the plaintiffs, through their solicitors, brought the matter to the attention of Twitter, and demanded that Twitter remove the offending material from its computers and servers and/or to remove all links directing internet users to the offending material. However, the offending material was not removed;
(e) on or about 16 July 2018, the plaintiffs brought the offending material to the attention of Google and Yahoo, but the offending material was not removed from Google’s website until October 2018, and was not removed from Yahoo’s website until November 2018;
(f) the defamatory imputations were of and concerning the plaintiffs, as the offending material was published under the moniker of the second plaintiff’s registered corporate and trading name, and the name and business of the second plaintiff is entirely synonymous with the first plaintiff, the sole shareholder and controller of the second plaintiff; and
(g) the plaintiffs have been gravely injured in their reputations, credit and occupation by reason of the publication and/or republication of the offending material, and have suffered embarrassment and distress entitling them to an award of damages.
In their prayer for relief, the plaintiffs sought damages, including aggravated damages, and a permanent injunction restraining the defendants from publishing the offending material.
The amended statement of claim contains three schedules. The first schedule concerns publications on the Twitter website, which are said in the particulars to paragraph 12 to the amended statement of claim to be:
… ‘tweets’ (publicly-displayed statements or messages posted on [Twitter’s] website) … published to all persons visiting [Twitter’s] website and searching the name of the second and third plaintiffs.
Schedule 1 includes a larger number of screenshots which show what is displayed by searching the Twitter handles on 9 December 2017, 11 December 2017, and 5 March 2018. For present purposes, it is not necessary to enumerate all of the publications referred to in schedule 1, but it includes images and commentary disparaging of Malcolm Turnbull, (former Human Rights Commissioner) Gillian Triggs, (former Federal Government minister) Christopher Pyne, Barack Obama, and Hillary Clinton, among others. Schedule 1 also includes tweets of photos, memes, and commentary which suggest, among other things, that non-white immigrants are responsible for sexual crimes, and that gay men are paedophiles. The tweets also express hostility towards same-sex marriage, vaccinations, transgender people, and the Victorian Government’s Safe Schools program.
I accept for present purposes that a person who is mistakenly identified as the author of these tweets would be embarrassed and distressed if they did not share the views conveyed by these communications, given their rather extreme and conspiratorial content and their crude and aggressive tone.
Schedule 2 includes search results from the Google search engine, and are said to have been matters ‘republished to all persons visiting the Google website and searching the name of the plaintiffs’. The particulars under paragraph 12 of the amended statement of claim state that:
[Google’s] algorithm linked the @ username under [Twitter’s] website to all persons reflecting the username of the Second and Third Plaintiffs.
Schedule 2 includes screenshots of search results for the search terms ‘idaz09’, ‘idaz09nations’, ‘idaz09it’, ‘idaz09australia’ and ‘idaz09china’. Most of the search results are ‘genuine’ in that they are links to Mr Nikolic’s ‘Linked In’ profile, and the second plaintiff’s website and Facebook page, but there are some search results which link to publications by the operator of the Twitter handles, and an article in The Australian newspaper and online news service published in September 2017 and headed “Catholic archbishops, Islamic clerics see eye-to-eye on hazards of marriage equality” (‘Australian article’). More will be said about the Australian article later in these reasons.
Schedule 3 includes search results from the Yahoo search engine, and are said to have been matters ‘republished to all persons visiting [Yahoo’s] website and searching the name of the plaintiffs’. The particulars under paragraph 14 of the amended statement of claim state that:
[Yahoo’s] algorithm listed the @ username under [Twitter’s] website, to all persons reflecting the username of the Second and Third Plaintiffs.
Schedule 3 includes screenshots of search results generated using the search terms ‘idaz09goran’, ‘idaz09’, and ‘idaz9nations’. As with the search results on the Google website, most of the links are genuine, but there are also links to the Twitter handles, including a link to the URL ‘Rusty@idaz09)/Twitter … The latest tweets from Rusty@idaz09): ‘1st step in #Clinton Foundation collapse, next are #Child Sex Trafficking Arrests #NYT#auspol#sun7#thprojectTV’.
Accordingly, the claims against Google and Yahoo in the amended statement of claim are in a sense derivative, in that the plaintiffs’ claims concern the generation of search results referable to the Twitter handles when names associated with the second plaintiff are entered into their search engines.
As noted above, this proceeding was commenced in January 2019. However, the defendants did not file their appearances (which were conditional) until June and July 2019. The solicitors for the plaintiffs filed a Notice of Ceasing to Act on 22 August 2019. The amended statement of claim was filed the following week.
In the meantime, on 24 August 2019, the plaintiffs also issued a proceeding against Nationwide News, the publishers The Australian newspaper and online news service (‘second proceeding’) in relation to the Australian article. The second proceeding was more confined in scope than the allegations in this proceeding, in that the second proceeding concerned the publication of the Australian article, which included a modified cartoon attributed to the ‘Rusty@idaz09’Twitter handle (‘Rusty Twitter handle’)[1], which suggested that the creator of the modified cartoon in the Australian article was stridently opposed to same sex marriage, in the context of the pending postal survey regarding this issue. Following correspondence between Mr Nikolic and the managing editor of The Australian in 2018, the article was modified to remove the reference to the Rusty Twitter handle in the Australian article, but the original version of the Australian article (including the reference to the Rusty Twitter handle) continued to show up in Google search results.
[1]Mr Nikolic has reddish hair.
The statement of claim in the second proceeding included the following allegations:
(a) the plaintiffs brought the republication of the Australian article to the defendant’s attention, and “demanded that the defendant remove the matter from its computers and servers and or to remove link or direction from its computers and servers linking or directing Internet users to the matter”;
(b) the Australian article was not removed from the defendant’s website until around April 2019;
(c) the republication of the Australian article, along with associated republications, means that third parties who are aware of the plaintiffs would conclude that:
(i) the plaintiffs are racist;
(ii) the plaintiffs are homophobic;
(iii) the plaintiffs hold anti-Muslim views;
(iv) the plaintiffs hold the view that Australian politics is influenced by paedophiles; and
(v) the plaintiffs hold views that vaccines kill babies;
(d) the plaintiffs alleged that because of the names of the Twitter handles, and the unusual name of the company, reasonable persons will presume, and have in fact presumed, that the Twitter handles were operated by the second plaintiff and Mr Nikolic, and the offending material reflects Mr Nikolic’s views; and
(e) the plaintiffs set out the relevant principles governing the action for injurious falsehood, and stated as follows:
The Plaintiffs instructed that the republication of the Materials has caused, and continues to cause, the Plaintiffs significant damage by way of loss of clients and business opportunities. The republication of the Materials is further damaging the reputation and goodwill of the second plaintiff, and the first plaintiff’s previously unsullied reputation.
The Company relies heavily on its reputation to secure new customer and supplier relationships. Accordingly, republishing the Materials, the defendant, has significantly impact and compromise the second plaintiff’s ability to do so.
Moreover, the account @idaz09 features as the third result of a search of the defendant. The longer the Accounts are permitted on the defendant, the further damage that is caused to the second plaintiff’s reputation and subsequently, its business.
The plaintiffs’ case in the second proceeding is that by publishing the Australian article referencing the Rusty Twitter handle, the sentiments expressed in the modified cartoon in the Australian article are said to be attributed to the plaintiffs. Further, given that the Rusty Twitter handle is associated with the offending material, any internet search of the names of Mr Nikolic and the second plaintiff will reveal the offending material, and the Australian article will appear along with or adjacent to genuine images and publications of the plaintiffs.
On 11 September 2019, the defendant in the second proceeding issued an application for summary judgment, or, in the alternative, to strike out the statement of claim (‘first application’). Two days prior to the hearing of the defendants’ applications in the current proceeding, I circulated reasons in relation to the first application, to give the plaintiffs an opportunity to consider those reasons prior to the formal delivery of judgment and the making of final orders. At the conclusion of the hearing of the defendants’ applications in this proceeding, I informed the parties that I would reconsider my decision in the first application, and refrain from making any orders until after I had done so.
Following the hearing of the first application, and the hearing of the defendants’ applications in this proceeding, I formed the view that the disputes between the plaintiffs and the defendants in both proceedings were potentially amenable to resolution, and all parties indicated they were willing to consider alternative dispute resolution. Accordingly, I suspended preparation of these reasons and my reconsideration of the issues in the first application until my chambers were informed late in February 2020 that it was not possible for a judicial mediation to be organised, and the parties saw no utility in a private mediation.
The defendants’ applications in this proceeding concern the amended statement of claim filed on 28 August 2019. The amended statement of claim purported to add a third plaintiff, ‘IDAZ09 Pty Ltd trading as IDAZ09 Nations’. No leave has been sought or granted to add a further plaintiff to the proceeding.
Further, paragraph 2 of the amended statement of claim states that:
The Plaintiff brings this proceeding as a representative proceeding pursuant to part 4A of the Supreme Court Act 1986 (Vic) on his own behalf and on behalf of all plaintiffs who received an impact of one or more of a consolidated user view, in a search engine, as an author of a registered trading name, marketed, worded or identified as: (a) an ‘idaz09 … ‘.
The main differences between the original statement of claim and the amended statement of claim are as follows:
(a) paragraph 2 of the amended statement of claim states that Mr Nikolic brings this proceeding as a representative proceeding on behalf of all plaintiffs, who were authors of registered trading names, which were largely variants on his name and the name of the second plaintiff;
(b) additional details concerning the plaintiffs are included, including:
(vi) Mr Nikolic has permanent profound sensorial hearing loss;[2]
[2]All of the hearings in this proceeding and the second proceeding have been conducted with the assistance of Auslan interpreters.
(vii) the business of the second plaintiff was registered in November 2013;
(viii) the business of the third plaintiff, a non-profit organisation, was registered in May 2015; and
(ix)the second plaintiff and the third plaintiff are separate businesses, and are both owned by Mr Nikolic;
(c) paragraphs 7 to 11 of the amended statement of claim include a new section regarding the defendants and their algorithms, as follows:
The Defendants have created their own algorithms. The algorithm functions automatically through the Defendants’ websites worldwide, and has impacted on the First Plaintiff’s feelings, causing anxiety and trauma experienced through his eyesight.
While a number of persons have the same full name as the First Plaintiff in the social media platforms, the Defendants’ websites using the handles @idaz09 and @idaz09nations have highly offensive material linked only to:
(a) the First Plaintiff’s photograph;
(b) the First Plaintiff’s residential address;
(c) the First Plaintiff’s personal and employment information;
(d) the Second Plaintiff’s business address;
(e) the Second Plaintiff’s registered trading name;
(f) the Second Plaintiff’s Facebook Page images;
(g) the Second Plaintiff’s website and website’s ownership details;
(h)the Third Plaintiff’s website and website’s ownership details; and
(i)the Second Plaintiff’s international patent and trademark details from the World Intellectual Property Organisation (WIPO).
Each of:
(a) the First Defendant (Twitter International Company, Twitter);
(b) the Second Defendant (Google Inc. LLC, Google); and
(c) the Third Defendant (Oath Inc., Yahoo);
was and is a corporation capable of being sued.
The Algorithm
At all material times, an algorithm was designed, developed to publish and or republish by the Defendants, further and alternative liability for the design, development, publication and or republication, of the algorithm was transferred to, one or more of:
(a) Google’s Web Search Engine;
(b) Google’s Image Search Engine;
(c) Yahoo’s Web Search Engine; and
(d) Yahoo’s Image Search Engine.
At all material times, the algorithm was sponsored for the purposes of the Broadcasting Services Act 1992 by, further and alternatively liability of the sponsor of the algorithm was transferred to, one or more of:
(a) Twitter (the First Defendant);
(b) Goggle (the Second Defendant); and
(c) Yahoo (the Third Defendant).
(d) the parts of the statement of claim referring to the publication of the offending material was amended to:
(i) refer to the Twitter algorithm providing content to the Google and Yahoo websites;
(ii) state that Twitter denied Mr Nikolic’s request to create a Twitter username, but allowed the unauthorised use of the brands of the second and third plaintiffs;
(iii) state that the algorithms of Goggle and Yahoo linked the username associated with the second and third plaintiffs on the Twitter website to visitors to their websites; and
(e) in addition to the imputations referred to in the original statement of claim, the following imputations were said to have been conveyed by the defendants in the offending material:
(i) the third plaintiff made an offensive post concerning the Australian Prime Minister; and
(ii) the third plaintiff holds the view that the Australian national flag should be destroyed.
On 24 October 2019, Twitter issued a summons seeking to strike out paragraphs 2 to 12, 15, 16 and 21 to 24 of the amended statement of claim pursuant to r 23.02 of the Supreme Court (General Civil Procedure Rules 2015 (‘Rules’). Rule 23.02 provides as follows:
Striking out pleading
Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of the process of the Court—
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.
On 25 October 2019, Google issued a summons seeking summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’), and, in the alternative, that paragraphs 2 to 11, 13, 17, 18 and 21 to 24 of the amended statement of claim be struck out pursuant to r 23.02 of the Rules.
On the same day, Yahoo (which is represented by the same solicitors as Google) also issued a summons seeking summary judgment pursuant to s 63 of the CPA and, in the alternative, that paragraphs 2 to 11, 14, 19, 20 and 21 to 24 of the amended statement of claim be struck out pursuant to r 23.02.
Section 63 of the CPA provides as follows:
Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a) on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c)on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
Twitter relied upon an affidavit sworn by its solicitor, Mr Justin Quill, sworn on 24 October 2019. This affidavit largely exhibited correspondence between his firm and the plaintiffs’ previous solicitors, Mills Oakley, regarding the alleged deficiencies in the statement of claim, the plaintiffs’ intention to file an amended statement of claim (to be prepared or settled by senior counsel) and Mills Oakley’s advice that it was not necessary for Twitter to file a defence until after the filing of the amended statement of claim.
Yahoo relied upon an affidavit sworn by Mr Kevin Lynch, its solicitor, sworn on 25 October 2019, which also referred to correspondence between the parties regarding the alleged deficiencies in the statement of claim and the amended statement of claim.
Mr Lynch’s affidavit exhibited a letter from Yahoo’s solicitors to the plaintiffs’ former solicitors dated 27 June 2019. This letter, which was an open letter, contained an offer to resolve the proceeding with the payment of $5,000.00, and stated, in summary, as follows:
(a) the plaintiffs’ claims against Yahoo have no real prospects of success, because Yahoo does not own or control the Australian Yahoo website, and because the Yahoo search results are incapable of being found by the ordinary reader to carry any defamatory meanings of and concerning the plaintiffs;
(b) even if the plaintiffs’ claims could survive an application for summary judgment, the statement of claim (as it then was) suffered from numerous deficiencies, including:
(iii) it failed to properly distinguish between the publications attributable to Twitter and the publications attributable to Yahoo;[3]
[3]For the purposes of the consideration of the pleading issues in the application, Google and Yahoo are largely interchangeable.
(iv) it failed to properly plead the act of publication, which is a bilateral act;
(v) insofar as it alleges that Yahoo is a secondary publisher, the allegation was inadequately pleaded;
(vi) the statement of claim failed to distinguish the publications attributable to Yahoo from the publications attributable to Google;[4]
[4]This appears to have been rectified in the amended statement of claim.
(vii) the plaintiffs must plead which of the pleaded defamatory imputations were said to arise from which search results, or from which page of search results;
(viii) the imputations pleaded in the statement of claim were incapable of arising from the search results; and
(ix)the imputations pleaded at paragraphs 10(c), (d) and (e) of the statement of claim were not defamatory; and
(c) there are other obstacles to the plaintiff’s claims, including:
(i) the plaintiff bear the onus of proof in establishing that the Yahoo search results have been published in Australia during the relevant period to someone other than Mr Nikolic or one of his associates, noting that no particulars had been provided of this allegation;
(ii) even if publication is able to be proved, it is inherently unlikely that there will be any substantial publication in Australia, such that a Court would be unlikely to award anything other than nominal damages;
(iii) the relevant period, given that the plaintiffs would only be able to recover damages for the period from 16 January 2018 to November 2018, rather than from December 2018. In any event, if Yahoo was to be liable only as a secondary publisher, time would only run from when a (defective) notice was sent by the plaintiff’s former solicitor on 13 September 2018; and
(iv) the plaintiffs’ entire claim was based upon the tenuous assumption that the viewers of the search results would have understood “idaz” as being references to the plaintiffs, which may well be a difficult burden to discharge.
The solicitors for Yahoo relied upon the above matters in support of what they described as a ‘genuine and reasonable’ offer to resolve the proceeding.
Mr Nikolic filed a number of affidavits of relevance to the defendants’ applications on the following dates:
(a) 18 September 2019;
(b) 23 September 2019;
(c) 6 November 2019;
(d) 10 November 2019; and
(e) 27 February 2020.
The affidavit filed on 18 September 2019 referred to communications between the plaintiffs’ former solicitors and the defendants, including ‘concerns notices’ directed at Google and Yahoo. This affidavit also annexed some of the offending material.
The affidavit filed on 23 September 2019 is brief, and explains why Mr Nikolic rejected Yahoo’s offer of settlement, referring to a search result on Yahoo’s website which he says indicates that he is involved in producing gay pornography.
The affidavit of 6 November 2019 exhibited a substantial number of documents, including:
(a) the identification profiles of @idaz09 and @idaz09Nations on the Twitter website;
(b) Twitter’s username squatting policy;
(c) correspondence between the parties;
(d) the online content policies of the defendants;
(e) comments upon the Twitter handles on Twitter’s website;
(f) a document evidencing the partnership between Twitter and Google; and
(g) a screenshot showing a linkage between Mr Nikolic and Islamic State on Google’s website.
The affidavit of 10 November 2019 provided details of the linkages between the Twitter handles, images of the first plaintiff, and the flag of the third plaintiff[5] and some of the offending material, including:
[5]While the third plaintiff is the same legal entity as the second plaintiff, and has been joined to the proceeding without leave, this summary adopts the terminology used by the plaintiffs in the amended statement of claim.
(a) a link between the Rusty Twitter handle and Mr Nikolic’s photograph and the third plaintiff’s website address on Google’s image search;
(b) a link between the first plaintiff’s photograph and the logo of the second and third plaintiffs with the Islamic State flag on Google’s image screen on 6 September 2018;
(c) a link between Mr Nikolic’s photograph and the burning of the Australian flag on Google’s image search on 18 October 2018. When a view clicked on the imagine of the burning flag, the viewer was taken to the webpage of @idaz09Nations on the Twitter website;
(d) a link between Mr Nikolic’s photograph and the third plaintiff’s brand to an image of a burning Australian flag on the Google image website on 19 October 2018;
(e) a link between the first plaintiff’s photograph and an image of a burning Australian flag and the @idaz09Nation’s profile on the Google image website on 31 October 2018;
(f) also on 31 October 2018, a link between the third plaintiff’s flag and emblem to a burning Australian flag on the Google image search;
(g) a link between the profile of @idaz09 on the Twitter website and a photograph of Mr Nikolic on a Google image search;
(h) a link between the second plaintiff’s trading name and logo and the Islamic State flag on a Google image search on 25 November 2018;
(i) a link between the profile of @idaz09 on the Twitter website and a new photograph of the first plaintiff on a Google image search on 25 February 2019;
(j) a link between ‘idaz09nations’ and the third plaintiff on a Google image search on 3 April 2019;
(k) a link between the profile of ‘@idaz09’ on the Twitter website and Mr Nikolic’s new photograph and the second plaintiff’s website on a Google image search on 9 May 2019;
(l) the search results for both idaz09nations and idaz09 on the Google website showed the @idaz09nations Twitter handle and the second plaintiff’s Facebook page on 30 July 2018, 25 August 2018, and 8 September 2018;
(m) a search of ‘idaz09goran’ on the Google website on 31 October 2018 shows Mr Nikolic’s photograph and residential address;
(n) a search of @idaz09nations on the Google website on 8 January 2019 reveals links to the Rusty Twitter handle and the Australian article, along with the second plaintiff’s Facebook page;
(o) searches of idaz09 on the Yahoo website shows links to the Rusty Twitter handle, Mr Nikolic’s LinkedIn profile, and the second plaintiff’s website; and
(p) the Twitter handles were suspended by Twitter on 12 October 2018.
The affidavit filed on 27 February 2020 includes, among other things, search results for @idaz09nations on the Google and Yahoo websites, which include publications made by the operator of the Twitter handles, and a report from Google analytics showing the countries in which those who searched the plaintiffs’ websites were located.
The strike-out application
There was a substantial overlap between the defendants’ submissions regarding their respective strike out applications. It is convenient to deal with the defendants’ strike out applications (which raise substantially similar complaints regarding the pleading of the plaintiffs’ case) before turning to the summary judgment applications made by Google and Yahoo, given the overlap between the applications, noting that Twitter does not seek summary judgment in relation to the claims made against it. The plaintiffs made no substantive submissions in response to the defendants’ criticisms of the amended statement of claim. Rather, Mr Nikolic submitted that the purpose of bringing the proceeding was to better understand how the defendants’ algorithms work, and to compel the defendants to remove the associations between his name, his image, and the second plaintiff’s name and the offending material from those algorithms, as the defendants have refused to do so, despite numerous complaints, and despite the distress that the association with the offending material has caused him.
In summary, the defendants’ complaints regarding the amended statement of claim are as follows:
(a) the amended statement of claim refers to a third plaintiff, ‘IDAZ09 Pty Ltd trading as IDAZ09 Nations”, which has not been formally joined to the proceeding, and is in any event the same legal entity as the second plaintiff, which is evident from the fact it has the same ACN as the second plaintiff;
(b) the amended statement of claim fails to plead the entitlement of the second plaintiff (a corporation) to sue, that is, the facts, matters and circumstances by which it is said that it is an ‘excluded corporation’ within the meaning of s 9(2) of the Defamation Act 2005 (Vic) (‘Defamation Act’);
(c) the amended statement of claim fails to properly plead the matters required to support a representative claim, and, indeed, there is real doubt that the current case ought to proceed as a group proceeding;
(d) the reference in paragraphs 7 to 11 of the amended statement of claim to the defendants’ algorithms is confusing;
(e) the pleading of the defendants’ publications is deficient, and, among other things, fails to recognise the different nature of publications on the Twitter website on the one hand, and the search engine results produced by searches on Google and Yahoo on the other hand;
(f) paragraph 21 of the amended statement of claim seeks to ‘roll up’ all of the imputations said to arise out of each of the pages in the schedules to the amended statement of claim, which is impermissible; and
(g) four of the imputations said to arise from the publications in the schedules cannot be defamatory, namely that:
(v) the plaintiffs hold anti-Muslim views;
(vi) the plaintiffs believe that Australian politics is influenced by paedophiles;
(vii) the plaintiffs believe that vaccines kill babies; and
(viii) the plaintiffs believe that the Australian national flag should be destroyed.
Counsel for Twitter also observed that the plaintiffs’ written outline of submissions made references to a range of matters and possible claims which were not part of their pleaded case, such as alleging that the defendants are liable for trademark infringement, passing off, breach of privacy, and other intentional torts. As such, it is not necessary to consider claims of this nature in the context of the current applications.
Some of the defendants’ complaints can be dealt with quite promptly. In relation to paragraphs 37(a) and (b) above, I agree that it is not necessary or proper to grant leave to join the third plaintiff as a party to the proceeding, as it is the same legal entity as the second plaintiff. It may be that the purported joinder of the third plaintiff (which is said to carry on a non-profit business) is intended to convey standing upon the second plaintiff to bring an action for defamation as an ‘excluded corporation’ within the meaning of s 9(2) of the Defamation Act. If so, that is an ineffective means of doing so. In order to establish the standing of the second plaintiff to sue under the Defamation Act, the plaintiffs must plead the facts which are said to bring the second plaintiff within the definition of excluded corporation within the meaning of s 9(2) of the Defamation Act. In order to be an excluded corporation, the second plaintiff is an excluded corporation if it employs less than ten people, and ‘the objects for which it is formed do not include obtaining financial gain for its members and corporators’.
The plaintiffs have been on notice for many months that they have not pleaded the necessary facts to establish that the second plaintiff is an excluded corporation. No leave should be granted to join the third plaintiff, and the proceeding, insofar as it is brought by the second plaintiff, should be stayed until the pleading is rectified.
In relation to paragraph 37(c) above, the amended statement of claim fails to comply with the provisions of Part IVA of the Supreme Court Act 1986 (Vic), which govern group proceedings in this Court, in a number of respects. In particular, the amended statement of claim:
(a) fails to identify the group members on whose behalf the claim is brought;
(b) fails to specify the nature of the claims brought on behalf of group members; and
(c) fails to specify the questions of law and/or fact common to the claims of group members.
There was nothing in the evidence or the submissions advanced on behalf of the plaintiffs to support this proceeding being constituted as a group proceeding. Accordingly, paragraph 2 of the amended statement of claim ought to be struck out.
In relation to paragraph 37(d) above, the defendants submitted that the allegations made in paragraphs 7 to 11 of the amended statement of claim regarding algorithms are vague and unintelligible, and do not appear to advance or relate to the plaintiffs’ causes of action, and should be struck out because they will prejudice, embarrass and delay the fair trial of the proceeding.
However, in my view, paragraphs 7 to 11 of the amended statement of claim do no more than attempt to provide an explanation as to how the publications on the Twitter website under the Twitter handles then show up in results generated by searches on the Google and Yahoo websites alongside other websites and online publications associated with the plaintiff. I do not see these paragraphs as being particularly problematic, and would not strike out the amended statement of claim on this basis alone, subject to the ultimate outcome of the applications for summary judgment made by Google and Yahoo.
In relation to paragraph 37(e) above, Twitter submitted that the pleading in paragraph 17 of the amended statement of claim that Twitter published the “matter” set out in schedule 1 is deficient in many respects. In particular:
(a) the URL for the Twitter website is not identified in the pleading;
(b) as publication is a bilateral act, the plaintiff must plead and particularise which persons conducted what searches in order to produce the materials reproduced in schedule 1; and
(c) a comparison of paragraph 12 of the amended statement of claim on the one hand and paragraphs 15 and 16 of the statement of claim on the other hand reveals an ambiguity in the plaintiff’s case. The plaintiffs, in paragraph 12, seek to impose liability upon Twitter for publications between December 2016 and 2019, but in paragraphs 14 and 16 appear to seek to impose liability upon Twitter as a secondary publisher after the giving of notice. The latter claim should be struck out.
Substantially similar criticisms are also advanced by Google and Yahoo in their submissions.
I agree that the pleading of the publications by each of the defendants is deficient, for the reasons advanced by the defendants, but I also consider that these deficiencies should be able to be rectified reasonably easily.
In relation to paragraph 37(f) above, each of the defendants criticised the bundling of different publications into schedules, thus treating each schedule as a composite publication. They submitted that it is incumbent upon the plaintiffs to identify which of the pleaded defamatory imputations are alleged to arise from each of the individual publications compiled in the three schedules.
I agree, given that the authorities make it clear that it is necessary to disaggregate composite publications into each separate publication, and link the pleaded imputations to each separate publication, a laborious but not impossible task.[6] Presumably, it would be feasible to prepare particulars (possibly in a tabular form) which could identify, for each publication, what imputation or imputations are said to arise from each publication, along with the relevant (bilateral) act of publication.
[6]See, for example, Trkulja v Google LLC [2019] VSC 38; Trkulja v Google LLC (No 2) [2019] VSC 309.
In relation to 37(g) above, the defendants submitted that the imputations referred to in that paragraph cannot, as presently drafted, be defamatory. The defendants submitted that those imputations:
... do not attribute any defamatory or blameworthy act or condition to the plaintiffs that would cause right-thinking members of society to think less of the plaintiffs. It is not, in and of itself, defamatory to say merely that a person holds anti-Muslim views, or the view that vaccines kill babies, or that Australian politics is infiltrated by paedophiles, or that the Australian flag should be destroyed. A person may hold such views for a variety of reasons, not all of which invoke any blameworthiness or defamatory condition on their part.
Given the overlap of this issue with the issues raised in the summary judgment application brought by Google and Twitter, I will deal with this issue later in these reasons.
Summary judgment application
The submissions of Google and Yahoo in respect of their summary judgment applications are largely identical, and are based upon the proposition that the search results contained in schedules 2 and 3, which contain excerpts of tweets associated with the Twitter handles in the lists of search results, cannot conceivably convey any defamatory meaning of and concerning the plaintiffs, let alone the imputations pleaded in the amended statement of claim.
Schedule 2 includes a long list of search results arising out of the entry of the name of the second plaintiff (and variants thereof) into the Google search engine. By my calculations, in the twenty-two printed pages in schedule 2, some 24 search results reference the Twitter handles, the offending material, or the Australian article. Schedule 3, which includes search results from the Yahoo website, has only six references to the offending material and one reference to the Australian article.
The defendants’ written outline of submissions summarised the principles relevant to the pleading and summary dismissal of defamatory imputations, as follows (omitting footnotes):
a.the test is whether the matter complained of is capable of conveying to the ordinary reasonable reader imputations which are defamatory of the plaintiff;
b.in applying this test, a court must reject any strained, forced or utterly unreasonable interpretation of the matter complained of – the ordinary reasonable reader does not engage in over-elaborate analysis in a search for hidden meanings;
c.a court must proceed on the basis that the ordinary reasonable reader is a person of fair, average intelligence, who is neither perverse, morbid or suspicious of mind, nor avid for scandal, but who is not unusually naïve, engages in a degree of loose thinking, can and does read between the lines in the light of their general knowledge and experience of worldly affairs, and has a capacity for implication that is greater than that of a lawyer; and
d.a court must draw a distinction between the ordinary reasonable reader’s understanding of what the matter complained of is actually saying, and a judgment or conclusion which the reader may reached as a result of their own believes or prejudices.
Google and Yahoo submitted that, to the extent that the search engine results include tweets that indicate the operator of the Twitter handles is opposed to same sex marriage, to say that a person is opposed to same sex marriage cannot cause right thinking members of society to think less of that person, or to treat that person with hatred, ridicule or contempt. They submitted as follows:
However, the ordinary reader could only arrive at a meaning of homophobia by drawing an inference or conclusion based on their own beliefs and prejudices. It requires the reader to infer first that the maker of the tweet is opposed to same sex marriage and second, that the reason for their opposition to same sex marriage is because they are homophobic. The first inference may well be capable of being grounded in the words of the excerpt. The second could only be the product of the reader’s own prejudice. The ordinary reader might just as easily have concluded that the publisher of the tweet is opposed to same-sex marriage not because they are homophobic but because they:
a.like many others in the community, are devoutly religious and their religion forbids same-sex marriage; or
b.consider that the concept of marriage has for so long been defined in society, culture and/or the law as being between a man and a woman that it is now not appropriate to change the law.
Senior counsel for Google submitted that the current case is similar to the publication which was the subject of summary determination in Barrow v The Herald & Weekly Times Pty Ltd,[7] where Macaulay J observed:
But for Mr Barrow to be able to succeed in his proceeding, he would need to persuade the court that the article conveyed the meaning that the mediation did not take place and that it did not take place because he refused to agree to it. In its terms, the article does not assign any reason for the case not being mediated (assuming it was not mediated) much less allocate blame or responsibility to any party for it not being mediated.
To arrive at the meaning that he has alleged, Mr Barrow submitted that the ordinary, reasonable reader would infer: (1) that the mediation did not take place; (2) that it did not take place because one party refused to mediate; and (3) because the article was written by the HWT, a defendant to the proceeding, it was unlikely to have been HWT that refused, so it must have been Mr Barrow.
Put simply, this line of reasoning, which is necessary to give rise the alleged imputation, offends a number of the principles that apply to determining whether a matter complained of is capable of conveying to the ordinary reasonable reader the imputation relied upon.
In my view, Mr Barrow’s analysis requires a reader who will engage in over-elaborate analysis in search of a hidden meaning – or put another way, a reader who engages in unreasonable and speculative ‘inference upon inference’. There are a number of reasons why a mediation might not take place, assuming it did not take place. Refusal by a party to mediate is only one of them, and refusal by a particular party is another sub-set again. Nothing in the article points to any particular reason, and to arrive at a particular reason for the mediation not occurring involves an exercise in arbitrary speculation.
The meaning Mr Barrow draws is not an understanding a reader would reach from what the article was actually saying. To draw from it what Mr Barrow infers would require viewing the article through the prism of a personal belief about some design on the part of HWT that the ordinary reasonable reader would have no cause to hold.[8]
[7][2015] VSC 263.
[8]Ibid [15]-[19].
Similarly, in Mirror Newspapers Limited v Harrison,[9] the High Court held that it is not open to find that a publication is capable of bearing a defamatory imputation merely because “it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff”.[10]
[9](1982) 149 CLR 293.
[10]Ibid, 301.
A more detailed explanation of the principle is to be found in the decision of the New South Wales Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden,[11] as follows (omitting citations):
What must be emphasised is that it is the test of reasonableness which guides any court in its function of determining whether the matter complained of is capable of conveying any of the imputations pleaded by the plaintiff. In determining what is reasonable in any case, a distinction must be drawn between what the ordinary reasonable reader, listener or viewer (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of and the conclusion which the reader, listener or viewer could reach by taking into account his or her own belief which has been excited by what was said. It is the former approach, not the latter, which must be taken….The publisher is not held responsible, for example, for an inference which the ordinary reasonable reader, listener or viewer draws from an inference already drawn from the matter complained of, because it is unreasonable for the publisher to be held so responsible: …That is an issue which has assumed some importance in this case
It is necessary to emphasise the important distinction between an implication and in inference. An implication is included in and is part of that which is expressed by the publisher. It is something which the reader (or listener or viewer) understands the publisher as having intended to say. An inference is something which the reader (or listener or viewer) adds to what is stated by the publisher; it may reasonably or even irresistibly follow from what has been expressly or impliedly said, but it is nevertheless a conclusion drawn by the reader (or listener or viewer) from what has been expressly or impliedly said by the publisher:... It is the reader’s (or listener’s or viewer’s) own conclusion. Attention to this distinction, in the context of the capacity to defame issue, seems to have been drawn for the first time in my judgment in Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9 at 12, when I pointed out that such a distinction appeared to have been accepted by Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 279-280: … That distinction was subsequently accepted in that context by this Court in Harrison v Mirror Newspapers Ltd [1981] 1 NSWLR 620 at 627. The High Court found it unnecessary to discuss the distinction in the appeal to that court in Mirror Newspapers Ltd v Harrison (at 300), and the distinction therefore stands.[12]
[11](1998) 43 NSWLR 158.
[12]Ibid 166-167.
Senior counsel for Google submitted that in order for the pleaded imputations to be defamatory, the reader would have to build inferences upon inferences, which the authorities make clear is impermissible reasoning.
The resolution of the application for summary judgment requires reconciling two different principles. On the one hand, the authorities frequently refer to the principle that the Court should exercise great caution before concluding that words are incapable of conveying a defamatory meaning, as the determination of that matter is quintessentially a matter for the tribunal of fact.[13] On the other hand, the question of whether words are capable of bearing a defamatory meaning is a question of law, such that a full trial is not necessary to determine whether a publication is capable of being defamatory.[14]
[13]See for example, Ecclestone v Telegraph Media Group Limited [2009] EWHC 2779 (QB) [8]; Hanson-Young v Bauer Media Limited [2013] NSWSC 1306 [11]; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 [18].
[14]See Trkulja v Google LLC [2019] VSC 38 [30].
There is no prospect that the plaintiffs can establish that the search results in Schedules 2 and 3 of the amended statement of claim can give rise to the imputations that the plaintiffs are racist, or hold racist or anti-Muslim views, or hold views that vaccines kill babies, or that Australian politics is controlled by paedophiles. The claims against Google and Yahoo seem to be based upon the reasoning that Google and Yahoo, by generating search results which refer to some tweets published by the operator of the Twitter handles, should be liable for all tweets published using the Twitter handles, regardless of whether they show up in the search results. Such a proposition is not maintainable.
The question which remains is whether the inclusion in the search results of tweets opposing same sex marriage and the Australian article conveys the imputation that the plaintiffs are homophobic. When first considering the application for summary judgment in the second proceeding, my initial view was that this was a question best left for trial. I considered that it was treading on dangerous ground to shut the plaintiffs out from asserting that the publication of anti-marriage equality sentiments as the nature conveyed by the Australian article could not in any circumstances be equated with homophobia, and from asserting that an allegation that a person is homophobic would lower him or her in the estimation of an appreciable and reputable section of the community.
However, having reflected upon the issue, and having reconsidered the authorities referred to in the defendants’ submissions in the applications in this proceeding, I have come to the view that holding a view that opposition to same sex marriage equates to homophobia can only result from the impermissible drawing of ‘inferences upon inferences’. As submitted by the defendants, many people in the community are opposed to same sex marriage for reasons which are not motivated by antipathy towards gays and lesbians, such as by reason of their religious convictions. Accordingly, summary judgment should be granted in favour of the defendants, insofar as the search results include links to the Australian article, or other publications which merely express opposition to same sex marriage, without more.
Applying that finding to the individual publications included in the schedules to the amended statement of claim, I note that there is no reference to the Australian article in Schedule 1 (the publications attributed to Twitter), and, to the extent that there are publications expressing opposition to same sex marriage, they do so in a manner which would convey the impression that the author of the tweets is indeed motivated by homophobia, and holds the view that homosexuality is synonymous with paedophilia. However, Schedule 2 contains a number of links to the Australian article, along with a tweet from the “Victory Nation (@idaz09nations)” Twitter handle commencing “WARNING TO AUSTRALIA Dangers of SSM #Vote NO#” (“anti-SSM tweet”), which goes no further than expressing opposition to same sex marriage. Schedule 3 contains only one reference to the anti-SSM tweet, and one link to the Australian article.
Accordingly, there should be summary judgment for Google and Yahoo insofar as the publications in Schedules 2 and 3 to the amended statement of claim are search results linked to the Australian article, or the anti-SSM tweet. The question remains whether there is any utility in providing the plaintiffs with leave to re-plead their claims against Google and/or Yahoo, based upon the remaining publications in Schedules 2 and 3.
Taking the Google search results first, apart from the references to the Australian article and the anti-SSM tweet, Schedule 2 includes a number of tweets emanating from the Rusty Twitter handle commencing “1st step in #Clinton_Foundations collapse, next are #Child Sex Trafficking Arrests#NYT#Auspol#sun7#the project TV…”. (“Clinton tweet”). The Clinton tweet presumably refers to a theory circulating in the United States in 2016 and 2017 linking the Clinton family with a child sex trafficking ring operating from a pizza store in Washington DC. Schedule 2 also refers to the following search results:
(a)Victory Nation on Twitter “Pedophiles on the loose now. #auspol”;
(b)wonderhooooo: Bryan Singer … Dec 12, 2017 – RT@idaz09nations: Why is creep@ alasdairduncan promoting gay raping pedophiles for a comeback? Singer was sued in 03 for pedo gay rape”; and
(c) #Boomtown – TopTwitter.com….
Nov 17, 2017 – Victory Nation@idaz09nations...
Ex CIA Robert David Steele on Trump Counter
Coup in Play the Deep State, Pedophiles,
Satanists are …”
The publications in Schedule 3 attributed to Yahoo include:
(a) a link to a website titled Gay Porn Star: Goran/PornoTycoon;
(b) the Clinton tweet;
(c) a tweet from the Rusty Twitter handle headed “Is Germany ok with Sedition + Treason? #AfDBpt”; and
(d) a tweet from the Rusty Twitter handle linking to an article titled “Over 200 South African Farmers apply for …”.
It does not seem to me to be beyond the realm of possibility that the search results linked to the Clinton tweet, and referring to paedophiles, the “Deep State”, and the tweets referring to sedition and treason could be held to give rise to the imputations that the plaintiffs adhere to and promote conspiracy theories, although I have not yet heard full argument on that issue. I will seek further submissions from the parties on the question of whether any defamatory imputations can arise from the publications referred to in the above paragraph rather than put the plaintiffs to the trouble of filing, and the defendants to the trouble of responding to, a further amended statement of claim.
I turn now to the other imputations sought to be struck out by Twitter, being the imputations that:
(a) the plaintiffs hold anti-Muslim views;
(b) the plaintiffs hold the view that Australian politics is influenced by paedophiles;
(c) the plaintiffs hold the view that vaccines kill babies; and
(d) the third plaintiff holds the view that the Australian national flag should be destroyed.
Twitter submitted that these imputations, as presently drafted, do not attribute any defamatory or blameworthy act or condition to the plaintiffs. I disagree. First, it seems to me that while the pleaded imputations could be better expressed, it seems to me to be at least arguable that the pleaded imputations are defamatory. It seems to me that there is a material distinction between saying that someone is anti-Islam, which is concerned with the principles and practices of the faith itself, and saying that someone is anti-Muslim, which is concerned with the adherents of the Muslim faith. Indeed, the imputation that the plaintiffs hold anti-Muslim views could be equated with the imputation that the plaintiffs are bigots.
Similarly, while it may be more accurate to say that the publications on the Twitter website could convey the imputation that the plaintiffs adhere to and/or promote conspiracy theories, I consider for present purposes the imputations in paragraphs 69(b) and (c) above are capable of being defamatory. Further, while the imputation in paragraph 69(d) above could be better expressed (for example, the more likely imputation to arise from the publications which reference the burning of the Australian flag is that the plaintiffs are unpatriotic), I accept that this imputation is capable of being defamatory.
Accordingly, I will not strike out paragraphs 21(c), (d), (e) and (g) of the amended statement of claim, insofar as they relate to the claim against Twitter, although I will give the plaintiffs an opportunity to amend their pleading in accordance with the observations made above, along with the observations made earlier in these reasons concerning the publications attributed to Google and Yahoo.
Accordingly, I will refuse leave to add the third plaintiff as a party to the proceeding, and order that the relevant paragraphs of the amended statement of claim be struck out. I will deal with the question of costs on the papers once the parties have had an opportunity to consider these reasons and the associated orders. I will give the first and second plaintiff an opportunity to file a further amended statement of claim that is consistent with these reasons, and for the defendants (or any of them) to file and serve any submissions in response concerning:
(a) whether the remaining publications in Schedules 2 and 3 give rise to any defamatory imputations;
(b) whether the further amended statement of claim addresses the imputations identified in these reasons; and
(c) the question of costs.
SCHEDULE OF PARTIES
S ECI 2019 00126
| GORAN NIKOLIC | First Plaintiff |
| IDAZ09 PTY LTD (ACN 166 845 647) | Second Plaintiff |
| IDAZ09 PTY LTD trading as IDAZ09 NATIONS (ACN 166 845 647) | Third Plaintiff |
| TWITTER INTERNATIONAL COMPANY | First Defendant |
| GOOGLE LLC | Second Defendant |
| OATH INC | Third Defendant |
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