Trkulja v Google LLC

Case [2018] HCA 25


HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, KEANE, NETTLE AND GORDON JJ

MILORAD TRKULJA (AKA MICHAEL TRKULJA)             APPELLANT

AND

GOOGLE LLC  RESPONDENT

Trkulja v Google LLC

[2018] HCA 25

13 June 2018

M88/2017

ORDER

1.Pursuant to r 42.07.1 of the High Court Rules 2004 (Cth) Google LLC is made the respondent to this appeal in substitution for Google Inc.

2.Appeal allowed.

3.Set aside orders 2 to 6 of the Court of Appeal of the Supreme Court of Victoria made on 20 December 2016 and, in their place, order that the appeal be dismissed with costs.

4. The respondent pay the appellant's costs of the appeal to this Court.

On appeal from the Supreme Court of Victoria

Representation

G O'L Reynolds SC with P A Heywood-Smith QC and D P Hume for the appellant (instructed by George Liberogiannis & Associates)

N J Young QC with L G De Ferrari SC for the respondent (instructed by Ashurst Australia)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Trkulja v Google LLC

Defamation – Publication – Capacity to defame – Where application for summary dismissal of defamation proceeding – Where allegedly defamatory matter includes search results of internet search engine – Where allegedly defamatory matter includes autocomplete predictions of internet search engine – Whether respondent published allegedly defamatory matter – Whether matter capable of conveying allegedly defamatory imputations – Whether proceeding had no real prospect of success.

Words and phrases – "autocomplete", "capacity to defame", "composite publication", "defamation", "defamatory image", "no real prospect of success", "ordinary reasonable person", "publication", "search engine", "search results", "search terms", "summary dismissal", "summary judgment".

Civil Procedure Act 2010 (Vic), ss 62, 63.
Supreme Court (General Civil Procedure) Rules 2005 (Vic), rr 7.01, 8.09.

  1. KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ.   This is an appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria (Ashley, Ferguson and McLeish JJA)[1], on appeal from an order of the primary judge (McDonald J)[2].  McDonald J ordered that an application by the respondent, Google Inc (now Google LLC ("Google")), to set aside a defamation proceeding brought by the appellant, Mr Trkulja, against Google, and its service out of the jurisdiction on Google, be dismissed.  McDonald J rejected Google's contention that the proceeding has no real prospect of success[3].  In allowing the appeal, the Court of Appeal held, to the contrary, that the proceeding has no real prospect of success[4].

  2. For the reasons which follow, McDonald J was correct to refuse to set aside the proceeding and, therefore, the appeal to this Court should be allowed.

    Mr Trkulja's claim

  3. Mr Trkulja's holograph amended statement of claim ("the Amended…

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AGLC
Trkulja v Google LLC [2018] HCA 25
Case
[2018] HCA 25
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Trkulja against Google LLC (substituted for Google Inc) concerning a defamation proceeding. Mr Trkulja alleged that search results and autocomplete predictions generated by Google's search engine were defamatory. The central dispute revolved around whether Google had published the allegedly defamatory material and whether this material was capable of conveying defamatory imputations to an ordinary reasonable person.

The legal issues before the High Court included whether the search results and autocomplete predictions constituted a publication by Google capable of conveying defamatory imputations. The court was also required to determine whether Mr Trkulja's defamation proceeding had no real prospect of success, which was the basis for the Court of Appeal's decision to dismiss the proceeding summarily.

The High Court reasoned that the search results, particularly those generated by searches for terms like "melbourne criminal underworld figure" and "melbourne criminal underworld photos," were capable of conveying to an ordinary reasonable person that there was an opprobrious connection between those terms and Mr Trkulja. The court found that the "snippets" accompanying the search results, and the reference to Mr Trkulja's earlier defamation proceedings, did not necessarily ameliorate the defamatory capacity of the material. Consequently, the High Court concluded that the Court of Appeal erred in finding the material incapable of conveying the pleaded defamatory imputations and in holding that the proceeding had no real prospect of success.

The High Court allowed the appeal, set aside the orders of the Court of Appeal, and ordered that the appeal to the Court of Appeal be dismissed with costs. Google LLC was ordered to pay Mr Trkulja's costs of the appeal to the High Court.

Orders

Orders of the court

1. Pursuant to r 42.07.1 of the High Court Rules 2004 (Cth) Google LLC is made the respondent to this appeal in substitution for Google Inc.

2. Appeal allowed.

3. Set aside orders 2 to 6 of the Court of Appeal of the Supreme Court of Victoria made on 20 December 2016 and, in their place, order that the appeal be dismissed with costs.

4. The respondent pay the appellant's costs of the appeal to this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ
It also remains that the search results reproduced at pages two and three were the result of searches for the words "melbourne criminal underworld figure" and "melbourne criminal underworld photos", which of itself would be capable of conveying to the ordinary reasonable person using the Google search engine that there is some opprobrious connection between those terms and Mr Trkulja. And lastly, given that the "snippets" provide little by way of detail as to the defamatory imputations which were the subject of the previous proceedings, or as to the falsity or otherwise of Mr Trkulja's alleged criminal connection, it might be thought that there is little about the "snippets" that a jury would necessarily regard as significantly ameliorative. This observation applies equally to the material appearing on page 14 of Annexure A which the Court of Appeal held was a reference to Mr Trkulja's earlier defamation proceedings that undermined the capacity of the publication to convey the pleaded imputations.Conclusion and orders The Court of Appeal erred in concluding that the matters upon which Mr Trkulja relied were incapable of conveying any of the defamatory imputations which were pleaded and therefore erred in concluding that Mr Trkulja's proceeding had no real prospect of success. It follows that the appeal should be allowed. Pursuant to r 42.07.1 of the High Court Rules 2004 (Cth) Google LLC is made the respondent to this appeal in substitution for Google Inc and the appeal is determined as so constituted. Orders two to six of the Court of Appeal should be set aside and in their place it should be ordered that the appeal to the Court of Appeal be dismissed with costs. Google should pay the costs of the appeal to this Court.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ

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