Legal Research
Cases
Trkulja v Google Inc

Trkulja v Google Inc

Case [2015] VSC 635 17 November 2015

Real Prospect of Success

Media & Entertainment Law

Defamation

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA Not Restricted
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2013 06264

MILORAD TRKULJA Plaintiff

v

GOOGLE INC Defendant

---

JUDGE:

McDONALD J

WHERE HELD:

Melbourne

DATE OF HEARING:

13 August 2015

DATE OF JUDGMENT:

17 November 2015

CASE MAY BE CITED AS:

Trkulja v Google Inc

MEDIUM NEUTRAL CITATION:

[2015] VSC 635

---

DEFAMATION — Publication — Defendant a proprietor of an internet search engine — Whether defendant intended to publish alleged defamatory material — Whether search engine proprietor should have immunity from liability.
PRACTICE AND PROCEDURE — Application to set aside service of writ out of jurisdiction — Applicable test — Whether plaintiff has real prospect of success at trial — Application dismissed.
Civil Procedure Act 2010 s 63; Defamation Act 2005 Div 2; Supreme Court (General Civil Procedure) Rules 2005 r 8.09.
---

APPEARANCES:
Counsel Solicitors

For the Plaintiff In person

For the Defendant Mr S Doyle SC with
Ms L De Ferrari Ashurst
HIS HONOUR:
1 Milorad Trkulja alleges that Google Inc (‘Google’) defamed him by the publication on the internet of material generated by its search engine. It is not in issue that the writ and amended statement of claim have been duly served on Google. Google has not entered an appearance and it seeks an order pursuant to r 8.09 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’) setting aside the service of the writ and the amended statement of claim.

2 On 13 August 2015 Mr Doyle SC, who appeared with Ms De Ferrari for Google, clarified that the only basis upon which Google sought to set aside the service of the writ and the amended statement of claim was that the proceeding had no real prospect of success.[1] Mr Doyle accepted that Google’s application is be determined in accordance with principles applicable to an application for summary judgment under s 63 of the Civil Procedure Act 2010 (‘the Act’). Mr Doyle submitted that Mr Trkulja’s claim has no real prospect of success for three reasons:
[1]Transcript of Proceedings, Trkulja v Google (Supreme Court of Victoria, S CI 2013 6264, McDonald J, 13 August 2015) T4 LL2-6.

i.Google is not a publisher; and/or
ii.The particular search engine results underpinning Mr Trkulja’s claim are not defamatory; and/or
iii.Google is entitled to immunity from suit.

3 Mr Doyle accepted that Google’s application is to be determined in accordance with the principles set out by the High Court in Agar v Hyde (‘Agar’).[2] In Agar, the plurality stated that the test to be applied where a defendant is served overseas and seeks to have service set aside is as follows:

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…

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 Trkulja v Google Inc

Details

AGLC: Trkulja v Google Inc [2015] VSC 635
Case: [2015] VSC 635
Decision Date: 17 November 2015

CaseChat Overview and Summary

Trkulja v Google Inc was a case heard in the Supreme Court of Victoria where the plaintiff, Mr. Trkulja, sued Google Inc for defamation, alleging that defamatory material was published through Google's search engine. The core legal issue before the court was whether Google, as the operator of the search engine, could be held liable for the defamatory content published through its service. Additionally, the court had to determine whether Google should be granted immunity from liability under the circumstances. The plaintiff argued that Google was directly responsible for the publication of the defamatory material, while Google contended that it was merely a passive conduit of information and therefore should not be held liable.

The court considered the applicable legal principles under the Defamation Act 2005 and the Civil Procedure Act 2010. It assessed whether Google intended to publish the defamatory content and whether the search engine operator should enjoy immunity from liability. The court also examined the plaintiff's application to set aside the service of the writ out of jurisdiction, considering whether there was a real prospect of success at trial. Ultimately, the court found that Google did not intend to publish the defamatory content and that it should be granted immunity from liability as a search engine operator. The court also dismissed the plaintiff's application to set aside the service of the writ out of jurisdiction, holding that there was no real prospect of success at trial.

In light of the above findings, the court ruled in favour of Google Inc, dismissing the plaintiff's claims. The court held that Google was not liable for the defamatory content published through its search engine and that it was entitled to immunity under the relevant statutes. Additionally, the application to set aside the service of the writ out of jurisdiction was dismissed, as the plaintiff did not demonstrate a real prospect of success at trial. This decision underscores the importance of distinguishing between active and passive roles in the publication of content online, particularly in the context of search engine operators.

Orders