Trkulja v Microsoft
[2018] VSC 399
•23 JULY 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2015 5714
BETWEEN
| MILORAD TRKULJA (aka MICHAEL TRKULJA) | Plaintiff |
| v | |
| MICROSOFT CORPORATION | Defendant |
AND
S CI 2015 5718
BETWEEN
| MILORAD TRKULJA (aka MICHAEL TRKULJA) | Plaintiff |
| v | |
| YAHOO! INC | Defendant |
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JUDGE: | JOHN DIXON J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 15 MAY 2017 (further submissions received 29 June 2018) |
DATE OF JUDGMENT: | 23 JULY 2018 |
CASE MAY BE CITED AS: | TRKULJA v MICROSOFT |
MEDIUM NEUTRAL CITATION: | [2018] VSC 399 |
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TORTS – Defamation – Defamatory meaning – Whether thumbnail images published as search result links are capable of conveying defamatory meaning pleaded.
PRACTICE AND PROCEDURE - Application for Summary Judgment – Civil Procedure Act2010 (Vic) s 63.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Heywood-Smith QC | George Liberogiannis & Associates |
| For the Defendant | Mr M Collins QC and Mr S Mukerjea | Johnson Winter & Slattery |
HIS HONOUR:
Introduction
In these two proceedings, Mr Trkulja sues for damages for defamation against the defendants Microsoft Corporation (proceeding S CI 2015 5714), and Yahoo! Inc (proceeding S CI 2015 5718). The publications alleged to convey the defamatory imputations consisted of pages of image search results generated by internet search engines operated by each defendant, respectively the Microsoft Bing Search Engine and the Yahoo Search Engine and printed on paper.
The defendants in each proceeding, by summons, sought summary judgment, and in the alternative, pursuant to Rule 23.02 Supreme Court (General Civil Procedure) Rules 2015 (Vic), paragraphs 4 to 10 of the Amended Statements of Claim filed in each proceeding on 29 September 2016 be struck out.
To enable the submissions and these reasons to be understood, what follows is drawn from the pleading in the Yahoo! Inc proceeding. I previously directed that where there is any inconsistency between the search terms that appear in Annexure A and the search terms pleaded in paragraph 5 of each statement of claim, the plaintiff is taken to be relying on the search terms set out in the annexure.
The plaintiff identifies Yahoo! Inc as the owner and operator of an Internet search engine that he refers to as the Yahoo Inc images site. The plaintiff defined the publications as ‘the images matter’ or ‘the Yahoo images matter’ interchangeably. This singular description was then applied to multiple different publications. The plaintiff alleged that –
4.The Yahoo images matter was published during the 1 December 2014 to 5 November 2015 and they current on the Defendant website to the persons in the State of Victoria and the Australian Capital Territory upon those persons accessing the Yahoo Inc Site, then viewing and perceiving the matter. (sic) [The names of 10 persons follow].
5.The defendant published, of and concerning the plaintiff, as pleaded in paragraph 4 heron (sic) the matters set out in Annexure A, to this statement of claim.
Particulars
(i)The images matter was published on after webpage entitled “Australian convicted underworld criminal mafia”. (page 1)
…
Annexure A consists of 22 separate pages of image search results presumably printed to a printer attached to a computer. Each page represents something about what was published to a web browser in response to a search term entered into the search engine. The page number referenced in the particulars appears to correlate with a handwritten annotation of a number on the pages of the Annexure. Most pages appear on their face to have been printed on 22 March 2015, although other pages are variously dated between 12 January 2015 and 9 August 2015. The pages variously show between 20 and 40 images, mostly head portraits and half body portraits of persons, some of whom are identifiable as lawyers and police. In some cases there is a printed name. There are also images of objects including cars, posters and newspaper banners. There is much repetition. On each page, there is one or more images of the plaintiff. Most pages contain handwritten annotations by an unidentified author.
The search terms that allegedly generated the web pages identified by these printouts included –
(a) “Australian convicted underworld criminal mafia?” – page 1;
(b) “Australian convicted underworld criminal mafia” – page 2;
(c) “Adelaide convicted underworld criminal mafia?” – page 3;
(d) “Adelaide Convicted Underworld Criminal” – page 4;
(e) “Melbourne convicted underworld criminal mafia” – page 5;
(f) “Melbourne Criminal Underworld Mafia Figures” – page 7;
(g) “Tony Mokbel Criminal Underworld Mafia” – page 11;
(h) “Sydney convicted underworld criminal mafia” – page 13;
(i) “melbourne criminal underworld” – page 14;
(j) “Melbourne underworld convicted criminal mafia” – page 16;
(k) “Melbourne underworld convicted criminal mafia figures” – page 18.
The remaining search terms were variants on this theme. The pleading does not make clear whether there is any relationship between each page comprising the Yahoo images matter and the allegation of publication in paragraph 4 or between any page and the conduct of any person named in paragraph 4.
The plaintiff further alleges that in its natural and ordinary meaning the Yahoo images matter carries the following defamatory imputations.[1]
[1]These imputations have been reproduced verbatim from the statement of claim that, although bearing the name of senior counsel, was based on earlier drafts prepared by the plaintiff and which demonstrates that English is not his first language.
(a) The plaintiff is a convicted criminal.
(b) The plaintiff is a member of Melbourne underworld convicted criminal mafia.
(c) The plaintiff is a participant in the Australian underworld criminal mafia scene.
(d) The plaintiff is such a significant figure in the Melbourne criminal underworld mafia that events involving him are recorded on a website that chronicles crime in Melbourne.
(e) The plaintiff is a hardened and serious member of the Melbourne convicted underworld criminal mafia in the same league as Mafia Boss Tony Mokbel drug baron the head of Australian’s biggest drug empires, who was Arrested after a trusted dealer turned informant and police charged him over $2 billion in drugs.
(f) The plaintiff is convicted serious criminal in Melbourne in the same league as underworld killer Andrew “Benji” Veniamin.
(g) The plaintiff is such a significant figure in the Melbourne criminal underworld that his rivals had hired a hitman to murder him.
(h) The plaintiff is serious convicted criminal in Melbourne in the same league as underworld killer Carl Williams notaries convicted murderer and a drug trafficker.
Alternatively, the plaintiff pleaded that the Yahoo images matter bore these meanings by true innuendo by reason of facts that are and were notorious in Victoria. Those facts are –[2]
[2]Again, these have been reproduced verbatim.
(a) the images in the matter under the words “Bing search images preview” is a picture of the plaintiff mixed with notorious convicted killers on the images in the matter under the words “Australian underworld convicted criminal Mafia” is a picture of the plaintiff mixed with several convicted drug dealers and the “Mafia bosses” on several [specified] pages, the search results displaying the plaintiff’s picture in one top left first line position suggesting
(c) that the plaintiff is in charge of the “Melbourne notorious criminal underworld convicted mafia” or an associate of Australian convicted mafia boss Tony Mokbel the drug baron and head of Australian biggest drug empires in 21 Century, and the Italian Calabrian Mafia Bosses, Mick Gatto, Mario Rocco Condello, Antonio Tony Madafferi.
The plaintiff alleges that on 23 March 2015 he sent a concerns notice to Yahoo! Inc pursuant to section 14 of the Defamation Act2005 (Vic) and on 23 April 2015, a solicitor for Yahoo! Inc replied to that notice.
In substance, the defendant contended in each proceeding:
(a)that the plaintiff’s claims had no real prospect of success because the search results pages generated by the respective search engines were incapable of conveying the pleaded or any defamatory meanings about Mr Trkulja to an ordinary reasonable search engine user;[3] and
(b)applying the decision of the Court of Appeal in Google Inc v Trkulja,[4] (‘the Google decision’) paragraphs 4 to 10 in each statement of claim should be struck out on the basis that those paragraphs fail to properly plead a case at law against the defendant as a secondary/subordinate, but not a primary, publisher of search results pages generated by its search engine.
[3]Citing Google Inc v Trkulja (2016) 342 ALR 504, 593 [372], 597 [390]-[391], 599 [405]
[4](2016) 342 ALR 504.
In the Google decision, the Court of Appeal held that Mr Trkulja’s claim against Google had no real prospect of success because:
(a)The search results pages generated by Google’s search engine were incapable of conveying any defamatory meanings about Mr Trkulja to an ordinary reasonable search engine user;[5] and
(b)Having regard to the manner in which Google’s search engine functioned, Google was capable as a matter of law of being found to be a secondary/subordinate, but not a primary, publisher of search results pages generated by its search engine, and was accordingly entitled to the benefit of an innocent dissemination defence in respect of such pages, at least until such time as they had been notified of their existence.[6]
[5]Ibid 593 [372], 597 [390]-[391], 599 [405].
[6]Ibid 590 [348]-[349], 591 [353], [355], 591-592 [357].
The Google decision shares a number of common features with this current application, namely:
(a)The types of image searches on which Mr Trkulja relied in the Google proceedings, the nature of the impugned search results in that case, and the imputations which Mr Trkulja alleged were conveyed by those search results, are substantially similar to the searches, search results and imputations which he pleads in the present proceedings against Microsoft and Yahoo.
(b)The evidence in the present proceedings as to the operation and functionality of the Microsoft Bing and Yahoo Search Engines is substantially similar to the evidence that was before the Court of Appeal in the Google proceeding as to the operation and functionality of Google’s search engine.
On 16 June 2017, the plaintiff obtained special leave to appeal the Google decision from the Victorian Court of Appeal to the High Court of Australia. As both parties recognised the commonality of issues between this application and the proceeding on appeal before the High Court, the parties did not object to delivery of this judgment being delayed until the High Court published its decision. That occurred on 13 June 2018 and further written submissions addressing that decision were received from the parties by 26 June 2018.
Evidence on Application
Evidence was given by the following persons:
(a) Michael Joseph Golebiewski, who was employed by Microsoft as principal program manager, Bing content moderation, whose affidavit was affirmed on 23 March 2017;
(b) Kevin Lee Wandryk, senior director product management, Yahoo! Inc., whose affidavit was sworn on 23 March 2017; and
(c) George Liberogiannis, the plaintiff’s solicitor, whose affidavit was sworn on 21 April 2017.
Mr Liberogiannis produced some documents from the Google proceeding, and, in addition, some material that he had downloaded from the internet. No submission was directed to this material and I say no more about it.
By his affidavit, Mr Golebiewski provided a detailed explanation of the operation of the internet and the Microsoft Bing search engine. He explained how a web browser is used and that search engines are by far the most common means by which internet users access and navigate the web. He explained how users engage with the Microsoft Bing search engine.
Mr Golebiewski described how the Microsoft Bing search engine delivers search results. Briefly stated, the search engine identifies the information available on the web through constantly and automatically crawling the web, identifying content of web pages including text, images, videos, documents and other items. The search engine extracts information about a web page or image through this process to build an index which is used to later find web pages that are relevant to a user’s search query. The search engine then predicts which web pages in the index that are most likely to be relevant to a particular search query and through a process described as ranking and returning displays these results to the user.
Crawling, indexing and ranking are all automated processes free from any human input. Microsoft has no control over the contents of indexed websites or images and as long as a website or web page continues to make the information available on the web and to web calling programs, the information will be routinely crawled and indexed by the search engine.
Computer algorithms control the execution of the search query against the index identifying and returning the most relevant images. The algorithms search the index for the words that form the search query that has been entered. After that web pages are ranked by a complex process with many variable factors to identify the images that are most relevant to the user.
Due to these variable factors incorporated within the algorithms and due to the changing nature of the contents of the web itself, the same search query issued by different people in different locations can produce different results, even if conducted at the same time. Likewise, the same search conducted by the same person at different times may produce different search results, consequently, when a complaint or grievance is raised it is necessary to provide the exact URL address to which the grievance relates because Microsoft will not be in a position to replicate the identical search.
Mr Golebiewski explained that the search browser displays the results of the search in the form of a list of hyperlinks with each hyperlink in the list corresponding to the URL address for a separate web page determined by the search engine to be relevant. The user then clicks on the hyperlink in order to access the web page revealed by the search. In this process neither the URL addresses nor the web pages nor the search terms are the product of any work or input by Microsoft.
For an images search, the search engine identifies all images that appear on web pages by analysing the HTML code. Images may be photographs, drawings or other forms of visual imagery. A set of metadata is associated with any image on the web and that data is extracted by the search engine. Some of that metadata is made available to a user if they click on the thumbnail in the search results. In this case, the search results as a series of thumbnails of the images themselves are displayed to help the user determine relevance before navigating to the underlying web page that contains each image. Again, neither the images, the thumbnails, the underlying web pages nor the search terms are the product of any work or input of Microsoft.
Image searches like general web searches are automated results based on word based searching. The search engine cannot and does not evaluate the dictionary meanings of search terms or the context or lawfulness of the information contained on the web page that it indexes. Consequently, but particularly with image searches, results may be returned that appear incongruous or which are not obviously or immediately relevant to the chosen search terms.
Mr Golebiewski explained that images may be returned by the search, despite the search terms not directly requesting such images, because those images exist on web pages which contain some or all of the chosen search terms. An example was given of how when Mr Golebiewski searched using the terms ‘Melbourne underworld criminal’, the search returned, in addition to images of well-known and notorious criminals in the Melbourne underworld, an image of Jackie Weaver, a well-known Australian actress. Clicking on that thumbnail identified a web page where the relationship between the actress and Melbourne underworld criminals is revealed as being that she played a lead role in a film called ‘Animal Kingdom’.
Mr Golebiewski used these examples to demonstrate that the Microsoft Bing search engine does not subjectively evaluate the meaning of, or judge the illegality or lawfulness of, specific content of search terms and, particularly with image search results, thumb nails may appear incongruous or not obviously or immediately relevant to the chosen search terms.
Mr Golebiewski explained Microsoft’s take down policy that will remove a particular URL address from display as a search result but is not presently necessary to set out the detail of that evidence.
Mr Golebiewski cross-examiner’s particular interest was the take down mechanism. Mr Golebiewski explained that blocking particular content from the index is not done via an algorithm but is based on identifying and matching known content or excluding specific URLs. He stated that Microsoft could not cause its search engine to comply with a direction that the name of the plaintiff not be produced on any search in conjunction with the word ‘criminal’.
Mr Golebiewski was shown an example of a print out of an images search alleged as a publication of defamatory matter by the plaintiff. He was invited to comment on the order in which the images were displayed. He noted (from the various factors that were described in detail in his affidavit) that the most significant factor will be the key words of the search and how they occur (are used or repeated) on the underlying web page where the image was uploaded or displayed. However, there were many other factors drawn from interactions with the particular web page that could be relevant.
The take down policy only removes content from the search results and cannot remove content from the internet. The capacity to block a particular URL may remove a specific instance of a particular image from the search engine index but that may not achieve a blocking of every occurrence of the exact same image.
Kevin Lee Wandryk, a senior director, product management at Yahoo! Inc. also swore an affidavit and was cross‑examined. Although Yahoo! is independent from Microsoft, it uses the Bing search algorithms on its search pages. It also has a relationship with Google, however all of its image and video search material comes exclusively from Bing.
Yahoo! has a temporary take down policy that permits a block for a short period during which Microsoft is informed and its take down policy activated. Blockages are implemented by identification of a specific URL. Ultimately Yahoo! relies on Microsoft to make the final decision as to whether a particular image URL will be blocked from the index.
Principles applying
I am of course bound by the High Court’s decision in Trkulja v Google LLC,[7] the effect of which was that the Google Decision, which also was binding, was set aside. For reasons discussed above, the decision is not distinguishable from the present applications. As the defendants conceded, the High Court’s decision is fatal to their application in the present proceedings save in one small respect, to which I will return.
[7][2018] HCA 25.
The High Court characterised the plaintiff’s statement of claim as an inelegant pleading.[8] It concluded that the Court of Appeal was wrong in holding, in relation to the images matter, that Mr Trkulja would have no prospect at all of establishing that the images matter conveyed any of the defamatory imputations relied upon and, in relation to the web matter, that Mr Trkulja could not possibly succeed in showing that the web matter upon which he relies carried any of the pleaded defamatory imputations.
[8]Ibid [3], which description is equally apposite in these proceedings.
The High Court concluded that at least some of the search results complained of had the capacity to convey to an ordinary reasonable person viewing the search results that Mr Trkulja was somehow associated with the Melbourne criminal underworld and therefore that the search results had the capacity to convey one or more of the defamatory imputations alleged.[9]
[9]Ibid [35].
Significantly, the High Court considered that the only real question before the Court of Appeal was the capacity of the published matters to defame. As the trial Judge had been correct to hold that it was strongly arguable that Google’s intentional participation in the communication of the allegedly defamatory results to Google search engine users supported a finding that Google published the allegedly defamatory results, it was unnecessary for the Court of Appeal to make a purportedly determinative finding of mixed fact and law that a search engine proprietor, like Google, is a publisher of search results, subject to an innocent dissemination defence almost always, if not always, maintainable in a period before notification of an alleged defamation.
The High Court noted that there can be no certainty as to the nature and extent of Google’s involvement in the compilation and publication of its search engine’s results until after discovery. This observation is presently apposite. The evidence in that proceeding, as in this proceeding, was limited to the untested assertions of Google deponents.
I pause at this stage to note that, as appears from what I have set out above, there was limited cross-examination of the defendants’ deponents on the present application. Cross-examination did not address factual issues that might bear on the proper attributes of the ordinary reasonable reader in the circumstances.
The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. As the High Court observed:
The question of whether words or images complained of are capable of conveying a pleaded defamatory imputation is a question of law which permits of only one correct answer. It is, however, a question about which reasonable minds may sometimes differ, and, consequently, it is only ever with great caution that a defamation pleading should be disallowed as incapable of bearing a defamatory imputation. The potential for difference about the capacity of matters to convey different meanings is an equally strong reason for declining to set aside a proceeding on the basis that an impugned publication is incapable of bearing the defamatory imputation alleged. And it is to be remembered that on an application for summary dismissal such as this, the plaintiff's case as to the capacity of the publications to defame is to be taken at its highest.[10]
[10]Ibid [30] (citations omitted).
The High Court identified the Court of Appeals’ substantive error to be that the issue of the capacity of published material to defame was judged according to what the Court might think the allegedly defamatory material depicted rather than what a jury could reasonably think that material might convey by way of imputation.
The High Court was content with the assumption that the ordinary reasonable person who has used the Google search engine to make a search contemplated that the results of their search bear some connection to the search terms. However, the High Court added:
But in the absence of tested, accepted evidence to the contrary, it must also be allowed that the ability to navigate the Google search engine, and the extent of comprehension of how and what it produces, whence it derives, and how and to what degree Google contributes to its content, may vary significantly among the range of persons taken to be representatives of the hypothetical ordinary reasonable person.[11]
[11]Ibid [54].
Further, the Court noted:
Additionally, the question of law of whether the standard of knowledge and comprehension of the processes involved should be taken as some hypothetical midpoint in the range of understanding is yet to be authoritatively determined. It may well be that the answer will turn on evidence as to the standards of knowledge and comprehension among users of the Google search engine (be they first-time or experienced participants, and recognising that the two classes may require separate consideration for the purposes of the law of defamation), and on inferences to be drawn from that kind of evidence as to the implications, particularly derogatory implications, that a user with that degree of knowledge and comprehension would likely attribute to the results of a Google search of the kinds in issue. As Kirby P (as his Honour then was) observed in another context, in Wickstead v Browne, appellate courts should be loath to consider the application of the law to evidence in novel contexts without the benefit of the evidence having been adduced and a trial concluded. Testimony "gives colour and content to the application and development of legal principle", and out of the detail of the evidence ultimately proved may arise an insight which aids understanding whether and how principle should be developed.[12]
[12]Ibid [55] (citations omitted).
Conclusions
Having regard to the High Court’s reasoning, I accept that the defendants’ concession that its application must fail was properly made. It follows that the relief sought by paragraph 1 of the defendants summons in each proceeding, that there be summary judgment in the proceeding for the defendant, is refused.
The defendants pressed an alternative claim pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) that paragraphs 4 to 10 of the amended statement of claim be struck out. In the wake of the High Court’s decision, this application was pared back to a contention that paragraphs 6(d) and 6(g) be struck out. The plaintiff responded that the defendants were attempting to turn the summary judgment application in respect of the whole proceedings into a strike out of two of eight imputations for the purpose of protecting their position on costs. I reject this submission. The plaintiffs’ strike out contentions were advanced in initial argument on the application. The defendants’ submitted that imputations 6(d) and 6(g) in each proceeding were incapable of arising from the images matter as pleaded in each proceeding. The defendants contended that this submission remained a good submission, supported by the High Court’s reasoning.
Each of these imputations is set out above in paragraphs 8(d) and (g). The former of these imputations was alleged in the Google pleading, but not the latter. This imputation, although noted in the judgments in the Google proceeding was not specifically analysed. The defendants’ contention, in substance, was that those two imputations had no grounding whatsoever in the contents of the images matters that had been pleaded.
In his original written submission the plaintiff rejected this contention stating that the basis for this rejection would be developed in oral submission. This contention was repeated in the supplementary submissions. However, I have carefully considered the transcript of oral submissions and can find no development of the contention that each of those imputations can be grounded in the material set out in annexure A of the statement of claim.
On my analysis of the images matter, there seems to be much force in the defendants’ contention, which has not been dispelled by the plaintiffs’ submissions. I do not see how reasonable minds might differ in respect of the two particular impugned imputations. Taking the first of them, the material in the annexure is capable of supporting an imputation that the plaintiff is a significant figure in the Melbourne criminal underworld mafia, but that is not the meaning alleged rather it is the imputation pleaded by the preceding sub-paragraphs. The identified sting of the imputation is that his significance is such that events involving him are recorded on a website that chronicles crime in Melbourne. Viewing the material in the annexure from a perspective most favourable to the plaintiff, nothing in that material would provide a basis for that assessment of the significance of the plaintiff as a figure in the Melbourne criminal underworld mafia. The assessment is necessarily derived from the ‘recording of events’, but there is no identifiable reference to ‘a website that chronicles crime in Melbourne’ or to recording of events on that website. In respect of this imputation, the plaintiff is not assisted by the allegation of true innuendo (see paragraph [9] above).
I am persuaded that the matter complained of is not capable of conveying the imputation pleaded in paragraph 6(d) of the pleading in each proceeding.
The second impugned imputation - the plaintiff is such a significant figure in the Melbourne criminal underworld that his rivals had hired a hitman to murder him – fails on a like analysis. The material in the annexure is capable of supporting an imputation that the plaintiff is a significant figure in the Melbourne criminal underworld, an imputation already alleged. With this imputation, the identified sting is that his significance is as a figure in the Melbourne criminal underworld is quantified by the further imputation that his rivals had hired a hitman to murder him. There are images that might bring the notion of a ‘hitman’ to the mind of the ordinary reasonable reader, but I am quite unable to identify any basis in the matter complained of on which a tribunal of fact could conclude that ‘rivals had hired a hitman to murder him’. Again, the allegation of true innuendo cannot advance the plaintiff’s position.
I am persuaded that the matter complained of is not capable of conveying the imputation pleaded in paragraph 6(g) of the pleading in each proceeding.
Accordingly, I order that:
(a) Paragraphs 6(d) and 6(g) of the amended statement of claim in each proceeding is struck out.
(b) The summons in each proceeding dated 17 January 2017 is otherwise dismissed.
Turning to the question of costs, the plaintiff submitted that he had successfully defended the substance of the defendants’ summonses and costs ought to follow the event. The defendants submitted that the appropriate order was that the parties bear their own costs of the summonses.
I accept that the defendants’ applications were strongly arguable at the time they were made, particularly as I was then bound to follow the Google decision. The High Court has made clear that summary judgment for the defendants’ in these proceedings would have been erroneous.
I do not accept the plaintiffs’ contention that the pleading point taken by paragraph 2 of the summonses is de minimis in the context of the summary judgment application. Nevertheless, the bulk of preparation, evidence and submissions was directed to the summary judgment application.
Balancing all relevant circumstances, I will order that the defendants pay 80 percent of the plaintiffs’ costs of each summons.