Trkulja v Google LLC
[2019] VSC 38
•7 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2013 06264
| MILORAD TRKULJA (also known as MICHAEL TRKULJA) | Plaintiff |
| v | |
| GOOGLE LLC | Defendant |
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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 January 2019 |
DATE OF JUDGMENT: | 7 February 2019 |
CASE MAY BE CITED AS: | Trkulja v Google LLC |
MEDIUM NEUTRAL CITATION: | [2019] VSC 38 |
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PLEADINGS – Application to further amend amended statement of claim – Whether pleading does not disclose a cause of action in respect of imputation – Whether pleading may prejudice, embarrass or delay the fair trial of the proceeding – Application refused with further opportunity to amend – Supreme Court (General Civil Procedure) Rules 2015 r 23.02 .
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Heywood-Smith QC | Mr G Liberogiannis |
| For the Defendant | Ms L De Ferrari SC | Ashurst |
HIS HONOUR:
In this proceeding, commenced in 2013, the plaintiff applies for leave to file and serve a further amended statement of claim in the form of a proposed further amended statement of claim (‘PFASOC’) circulated between the parties. The application is opposed. The plaintiff seeks damages from the defendant (‘Google LLC’) for defamation. Broadly speaking, the publications alleged against Google LLC comprise printed screenshots of web pages of search results alleged to have been generated by the Google search engine between 23 November 2012 and 10 November 2013.
Briefly, the procedural history is that the writ was served out of the jurisdiction. Google LLC entered a conditional appearance and applied to set aside service of the writ. That application was dismissed and McDonald J ordered that Google file an appearance and a defence.[1] On appeal, McDonald J’s order was set aside and summary judgment was entered for Google LLC.[2] The plaintiff’s further appeal to the High Court of Australia succeeded and in June 2018 McDonald J’s orders were reinstated.[3]
[1]Trkulja v Google Inc [2015] VSC 635.
[2]Google Inc v Trkulja (2016) 342 ALR 504.
[3]Trkulja v Google LLC (2018) 356 ALR 178.
The High Court described the amended statement of claim then current (‘ASOC’) as an inelegant pleading that was sufficiently comprehensible to convey that the plaintiff alleged that Google LLC defamed him by publishing images that conveyed imputations, described in general terms. Notably the Court observed:
The pleading alleges that Google published the defamatory images between 1 December 2012 and 3 March 2014 to persons in Victoria, including several named persons, upon those persons accessing the Google website, searching for Mr Trkulja's name or alias (Michael Trkulja and Milorad Trkulja), and then viewing and perceiving the images presented on-screen in response to the search.[4]
[4]Ibid 180 [4].
The ASOC alleged two groups of defamatory matters described as ‘the Google Images matter’ and ‘the Google Web matter’. The reader of the ASOC was invited to assume that the content of annexures A and B to the writ reproduced the material published on any particular occasion.
The High Court noted that, although the pleading was imprecise, the annexures identified the particular search terms that resulted in the display of the results. The search terms so identified were not Mr Trkulja's name or alias (Michael Trkulja and Milorad Trkulja).
The Court of Appeal had approached the appeal grounds on the basis that the plaintiff alleged a single composite publication in which all of the search results comprised in the Google Images matter formed the basis for a single composite claim.
The High Court rejected this approach stating:
As appears from the Amended Statement of Claim, that is not the way in which the case is pleaded. The Amended Statement of Claim conveys that each search and the result which appeared in response to it are to be considered together but separately from each other separate search and response, for the reason that each search may have been conducted by a different person without engaging in any of the other searches. That accords with the view expressed by Callinan J in Dow Jones & Co Inc v Gutnick that each hit on a website is a separate publication. Before this Court, counsel for Mr Trkulja did not seek to make anything of the point. He appeared to accept that it was open to aggregate all of the search results in Annexure A and all of the search results in Annexure B, although not A and B, but, if the matter goes to trial, the difference could prove significant.[5]
[5]Ibid 186 [34].
However, for its purposes, the High Court was satisfied that at least some of the search results had the capacity to convey one or more of the defamatory imputations alleged, a conclusion unaffected by whether or not the search results were viewed individually or as a composite publication.
While that conclusion enabled the Court to deal with the issues raised on the appeal (whether there was a tenable cause of action), the Court made clear that it was not dealing with the issues raised by r 23.02 of the Supreme Court (General Civil Procedure) Rules2015. The present application is concerned with that question — does the pleading disclose a cause of action or may the pleading prejudice, embarrass or delay the fair trial of the proceeding.
Following the remitter of the matter to this Court, in case management, the plaintiff sought to further amend his statement of claim. When the application came before me on 20 November 2018, I was satisfied that the ASOC did not comply with r 23.02. I ordered that the ASOC be struck out and that the plaintiff have leave to re-plead his claim by submitting his proposed further amended statement of claim to the solicitors for Google LLC. Directions were given for the plaintiff to apply for leave to amend in the event that Google LLC refused its consent. The proceeding was also set down for trial before a jury commencing on 12 August 2019.
Google LLC refused its consent to the amendment and the plaintiff now brings this application. Google LLC’s objections to the pleading fall into three categories. First, the matter in which the plaintiff has pleaded publication will prejudice, embarrass or delay the fair trial of the proceeding. Secondly, the publications alleged are incapable of conveying the particular imputation specified in paragraphs 8(f) and 9(f) of the PFASOC. Thirdly, the particular manner in which the plaintiff alleged that it was on notice from the plaintiff of its publication of defamatory matter is untenable.
Publication
I am satisfied that the manner in which the plaintiff has pleaded publication is unnecessarily confusing and imprecise. I am satisfied that permitting the proceeding to go to trial on this pleading may prejudice, embarrass or delay the fair trial of the proceeding. Accordingly I will not grant leave for the plaintiff to proceed to amend the pleading to include paragraphs 4–7 inclusive in their present form.
In paragraph 4 the plaintiff alleges that Google LLC ‘published defamatory images, of and concerning the plaintiff, the matters set out in annexure A comprising 20 pages of search results’. This material is defined as ‘the matter’. It is clear from the particulars under the heading ‘Particulars of Publication’ that no allegation of publication is actually made. All that those particulars describe are the images that were produced when certain search terms were entered into the Google internet search engines accessible through Google sites (as defined in paragraph 2 of the PFASOC). There are a number of difficulties.
Although the pleading alleges that this activity occurred between 1 December 2012 ‘to the date hereof’ (11 December 2018), the particulars do not support that broad allegation. The particulars do not identify the date of publication or the search terms that were entered into the Google search engine to produce the webpage of search results capable of being published by being downloaded into the browser of an individual internet searcher. The only logical inference that can be drawn from the PFASOC is that the search terms are those appearing in the search box at the top of the page and that the date of search may be the date identifiable from a header or a footer on the printout. The High Court plainly read the pleading in this fashion. The relevant dates of publication appear from careful examination of the material reproduced in the annexure to be 23 November 2012 and 10 November 2013. I pause to note that the provenance of the printouts annexed to the PFASOC is not identified.
Despite its express terms, paragraph 4 cannot be an allegation of publication. It may be that it is intended to allege what material is produced by the operation of the Google search engine on particular dates in response to particular search terms. If that be so, I see no reason why that cannot be clearly and unambiguously alleged.
The confusion created by this manner of particularising the publication allegation in paragraph 4 becomes immediately apparent when the pleader alleges publication to persons in Victoria in paragraph 5. The plaintiff pleads:
The matter was published to persons in the State of Victoria upon those persons accessing the Google Sites, or one of them and searching for the plaintiff’s names Michael Trkulja or Milorad Trkulja and then viewing the matter.
Those persons included six named individuals, five of whom reside in Victoria and one in South Australia.
Two particular observations about this paragraph can immediately be made. First, it is alleged that those six persons viewed ‘the matter’, a term defined in the preceding paragraph to refer to the 20 pages of search results set out in annexure A to the pleading. On the other hand the phrase may simply refer to the material that was displayed in the individual’s browser as the return of the search results. Secondly, the search terms used by each of those six persons differed from the search terms apparently used to generate the 20 pages of search results particularised under paragraph 4. There is no allegation in the pleading identifying how this feat can be achieved.
It is nonsensical to suggest, as the plaintiff submitted,[6] nor was it pleaded, that a search by means of the Google search engine using, for example, the search term ‘Michael Trkulja’ would produce a website displaying on a user’s browser the images produced by the Google search engine using the search term ‘Melbourne underworld criminals’. The publication alleged in paragraph 5 cannot produce the material alleged to carry the defamation imputations.
[6]Perhaps that conclusion might be open if further material facts were alleged, but there was no basis to assume either that further material facts could be alleged or that the conclusion advanced could rationally be supported.
The plaintiff contended that the phrase ‘the matter’ can refer to those 20 pages in either a single or a compendious manner. I disagree. Further, it is not for Google LLC, or the Court to speculate about the precise sense in which the phrase is used when unambiguous clarification could be readily achieved. Further, as noted above, the High Court read the pleading as conveying that each search and the result which appeared in response to it are to be considered together but separately from each other separate search and response.
The particulars to paragraph 5 compound the confusion around the alleged acts of publication, stating:
The six persons named each viewed one or more of the 20 pages such that all 20 pages were downloaded by at least one of the six named individuals.
I reject the plaintiff’s submission that requiring him to identify the search terms used on what date by each of the six named individuals and the material that was viewed or which page of the 20 identified was downloaded would impose an intolerable burden upon him. The plaintiff submitted that this burden was oppressive and akin to the manner in which large corporate publishers manipulate Court procedure to oppress plaintiffs seeking redress for reputational damage. I do not agree.
Permitting a proceeding to go to trial on the basis of publication as alleged in paragraphs 5 and 6 is likely to prejudice, embarrass or delay the fair trial of the proceeding. Both parties will suffer negative consequences as a result and precious court resources would not be used in the most efficient manner.
Two further observations can be made about the consequences of the fundamental disconnect between the search terms used to identify the material generated by the Google search engine and the search terms used by the persons who downloaded material off the internet as a necessary step in the course of publication.
First, in paragraph 7 the plaintiff pleads that the Court can infer from the public interest in stories appertaining to the Melbourne criminal underworld, and Melbourne crime amongst large sections of the population including journalists, law enforcement officials, politicians, political operatives and such, and can infer from the nature of the world wide web, that the matter was published to a substantial but unidentifiable number of persons within Australia and without. This allegation does not identify the search terms that might be used by such persons. The inference is likely to be that such search terms were not the search terms alleged to be used by the six individuals to whom the matter was published (the plaintiff’s name) but rather the search terms apparent from the material in annexure A. It is clear from its reasons that the High Court interpreted the material in the annexures to the ASOC in this manner.
Particular reference needs to be made to page 14 of the annexure that is described in the pleadings as a ‘search result page’. In fact the page does not disclose any search results and appears to reproduce, by way of a screenshot, an autocomplete box for the entry of search terms into the Google search engine. Although issues were raised about the autocomplete function in earlier versions of the pleading and before the appellate Courts, those allegations have not been maintained and this particular page of the annexure is unexplained. It might have been viewed by one or more of the six individuals who conducted a search by reference to the plaintiff’s name but this is speculation as no such allegation is made.
Secondly, the plaintiff gives no particulars of publication to large sections of the population with a public interest in stories appertaining to the Melbourne criminal underworld. There is no date of search or of downloading by such persons as comprise the large sections of the population, and no allegation of the search terms used. The plaintiff asserts that particulars of publication will be given following discovery. However it may be that these allegations are incapable of justifying discovery that would permit further particulars of such publication.
Further, how ‘the matter’, as defined by the pleading, would have been published to this large section of the population, an unidentifiable group of internet searchers is not alleged. Bearing in mind that the images published in the search results that are ‘the matter’ are limited to thumbnail photographs, the plaintiff does not clearly allege how the matter carried the alleged defamatory imputations identifying the plaintiff either in its natural and ordinary meaning or by way of innuendo. The extrinsic facts alleged in support of the plea of innuendo are limited to identifying the faces of convicted notorious murderers amongst the thumbnail images revealed by the search results. On the other hand, the six named individuals, who searched by using the plaintiff’s name as a search term, could be presumed to be able to recognise the plaintiff’s photograph but that too is supposition about a material fact that the plaintiff could readily have pleaded.
Pleaded imputations
The pleaded imputation in paragraph 8(f) is that ‘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’. In paragraph 9(f) the imputation is different although it is in substantially similar terms. The allegation ends with the additional word ‘photos’.
There is nothing in the pleading, or in annexure A, that makes reference to any website chronicling crime in Melbourne. To the contrary, the pleading specifically alleges that the relevant websites are part of the Google sites and are websites that return the search results generated by the Google search engine in response to the user’s inquiry. Further, assuming the search results page answered the description of a website chronicling crime in Melbourne, there is nothing in the annexure capable of conveying to the ordinary reasonable viewer of an internet browser that events involving the plaintiff were recorded on such a website or that this occurred because the plaintiff was a significant figure in the Melbourne criminal underworld.
Although the plaintiff put a submission on how a jury should approach the issue of whether the matter complained of bears the defamatory imputations alleged, the question of whether words or images complained of are capable of conveying a pleaded defamatory imputation is a question of law. The proper approach to that question was considered by the High Court in this proceeding and I need look no further than the Court’s reasons.[7] In respect of this particular imputation, I am satisfied that none of the search results complained of are capable of conveying that particular defamatory imputation. It would be perverse for a jury to conclude that an ordinary reasonable person who made the Google search alleged and received any or all of the 20 pages particularised as ‘the matter’ would consider the material as capable of conveying that particular defamatory imputation.
[7](2018) 356 ALR 178, 185-186 [30]-[35].
Further, in argument it was suggested that this particular imputation can be sourced back to earlier proceedings brought by the plaintiff against Google that did concern a website other than Google search results pages that answered the description contained in the alleged imputation. On the material presently before the Court I am not in a position to evaluate that contention. Nevertheless, for the reasons I have given, I will not permit the plaintiff to contend that ‘the matter’ carries that particular imputation.
Notice
The plaintiff contended that Google LLC became aware of the fact of publication of the matter on Google sites on about ‘3 December’ (presumably of 2012 although no year is alleged). A response dated 20 December 2012 from Google LLC is alleged to demonstrate that it received the concerns notice.
Confusion and uncertainty arise when the reader of the pleading attempts to relate this allegation back to the particulars to paragraph 4. The date of each of the pages, apart from pages 4, 12, 14, 15, 17, and 18, identifiable from the material in the annexure is after 1 December 2012. Because of the flaws in the pleading in paragraphs 4 and 5 the initial date and manner of publication of the material in each page of ‘the matter’ is obscure.
The plaintiff alleged notice in support of his contention that after Google LLC received that notification and failed to remove the matter within a reasonable time, it became a publisher of the matter. In my view, the confusing and imprecise nature of these allegations may prejudice, embarrass or delay the fair trial of the proceeding.
There is a further allegation that the plaintiff had in any event complained to the defendant of ‘similar material’ to the matter which resulted in the proceeding Trkulja v Google Inc which was issued in 2009. The allegation that by reason of that proceeding the defendant was on notice of the defamatory nature of the matter is too vague and imprecise to be permitted to go forward to trial. A complaint about ‘similar material’ made years earlier when advanced as a basis for notification of the defamatory nature of the material complained of in this proceeding raises a number of collateral, and probably peripheral, issues that are not clearly identified by the pleading. Again, a pleading in this form may prejudice, embarrass or delay the trial of the proceeding.
Damages
Finally, the plaintiff alleged, in paragraph 6, publication to persons in foreign countries stating in the pleading that the plaintiff will seek to have such publication taken into account in the assessment of damages. This allegation is confusingly located amongst the allegations of publication discussed above, when it ought to be pleaded as part of the allegations of damage. Further, the material facts that demonstrate why the publication in foreign countries was of the matter identified in paragraph 4 is necessary. This allegation also has the propensity to prejudice, embarrass or delay the fair trial of the proceeding.
Conclusions
The plaintiff is refused leave to file and serve the proposed further amended statement of claim dated 11 December 2018. I am presently unaware of any reason why the ordinary principles should not be applied that costs should follow the event. In case the parties wish to make further submissions in respect of costs I will defer making an order for costs on the application until the next directions hearing.
I have not concluded that no tenable cause of action could ever be pleaded in the circumstances revealed by the present and earlier drafts of the statement of claim. However, I note that the objections to the form of the pleading outlined above substantially replicate the concerns raised in argument on 20 November 2018. I will permit the plaintiff a period of 21 days to submit to the defendant a proposed further amended statement of claim in respect of which the defendant can, within a further seven days, either consent to it being filed and served or file a short outline of its contentions as to why leave to amend should be refused. The proceeding will be fixed for directions, together with proceedings Trkulja v Microsoft Corporation S CI 2015 05714 and Trkulja v Yahoo! Inc S CI 2015 05718, a further seven days later.
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