DEFAMATION – Publication – Publication on the internet – Jury verdict – Publication defamatory of plaintiff – Defence of innocent dissemination – Damages – Defamation Act 2005, ss 21, 22, 32, 34, 35, 36 and 38.
PRACTICE AND PROCEDURE – Jury verdict – Application by first defendant for judgment notwithstanding jury verdict – Leave reserved to first defendant to apply for judgment notwithstanding jury verdict – Application refused.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr C. Dibb
Efron & Associates
For the Defendants
Mr J. Ruskin QC with Mr A.T. Strahan
Baker & McKenzie
HIS HONOUR:
Introduction and background
During 2009, there was material on the internet about the plaintiff, Mr Milorad Trkulja (also known as Michael Trkulja), which was available for downloading and viewing in Australia. In this proceeding, the plaintiff claims damages from Google Inc LLC, the first defendant, and Google Australia Pty Ltd, the second defendant, in respect of material described by the parties as “the images matter” and “the web matter”.
The images matter[1] consisted of four pages of material. On the first page there were pictures of the plaintiff, Tony Mokbel and Denis Tanner. Underneath each of these pictures was the name “Michael Trkulja”. On the third page of the images matter, there was an article (“the article”) headed “Shooting probe urged November 20, 2007” with a larger photograph of the plaintiff. On this page, and above the article, was the heading “Melbourne crime”. Under this heading there were nine photographs of various people either known to have committed serious criminal offences or against whom serious criminal allegations had been made.
[1]As tendered at trial.
The web matter[2] consisted of three pages. The first page of the web matter consisted of the first ten results of 185,000 results for the search term “Michael Trkulja”. The third page of the web matter consisted of the article under the same heading with the same nine photographs and the larger photograph of Mr Trkulja as contained in the images matter.
[2]As tendered at trial.
The article was as follows:
“Police Chief Christine Nixon has been urged to re-open an investigation into an unsolved murder attempt.
Former music promoter Michael Trkulja was shot in the back by a hit-man wearing a balaclava while dining at a St Albans restaurant in June 2004.
The would-be killer fled after his pistol jammed as he prepared to fire a second shot at Mr Trkulja, who had been enjoying a Sunday lunch with his elderly mother.
A Victoria Police document reveals detectives dropped the investigation because of a lack…
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.
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Details
AGLC
Trkulja v Google Inc LLC (No 5) [2012] VSC 533
Case
[2012] VSC 533
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, the case of Trkulja v Google (No 5) involved a defamation claim brought by the plaintiff, Mr. Trkulja, against two defendants: Google and an individual, Mr. Doder. The plaintiff alleged that defamatory statements were published about him on the internet, leading to significant harm. The defendants argued that they were not responsible for the defamatory content, with Google asserting the defence of innocent dissemination. The court was required to determine whether the defendants were liable for the defamatory publication and, if so, the appropriate damages.
The primary legal issues before the court included whether the publication was defamatory, whether Google was vicariously liable, and whether Google could claim the defence of innocent dissemination. The court examined the nature and extent of the publication, the meaning conveyed to ordinary readers, and the potential harm caused. The defence of innocent dissemination was also scrutinised, considering whether Google had acted reasonably in disseminating the content.
The court held that the publication was indeed defamatory and that Google was vicariously liable for the actions of Mr. Doder. Regarding the defence of innocent dissemination, the court found that Google had not acted reasonably and thus could not avail itself of this defence. The court assessed the damages and concluded that the jury's verdict was supported by the evidence. An application by Google for judgment notwithstanding the jury verdict was subsequently refused, leaving the jury's findings intact.
The court's final orders included the refusal of Google's application for judgment notwithstanding the jury verdict and the upholding of the jury's findings regarding liability and damages. This decision underscored the importance of due diligence in internet content dissemination and the liability of platforms in cases of defamatory content.