In striking down a 2016 decision of the Victorian Supreme Court, the High Court has held that search term auto-completions are capable of being defamatory and stated that search engines should not be immune from defamation claims.

The decision paves the way for Mr Milorad Trkulja to continue to pursue his claim against Google. It remains to be seen whether the search engine giant will successfully raise a defence (such as innocent dissemination) when the case returns to the Supreme Court.

Road to the High Court

In 2015, Melbourne resident Trkulja brought a defamation proceeding against Google.

Mr Trkulja claimed that he was defamed by certain web and image search results which appeared when specific terms relating to Melbourne crime, the Melbourne underworld and his name were searched on Google. Mr Trkulja also argued that he was defamed by certain 'auto-completions' (that is, suggested search terms which appeared in the Google search bar when a user began entering his name). Mr Trukulja alleged that the search results and auto-completions were defamatory as they linked his name and image to Melbourne's criminal underworld.

In the 2015 case of Trkulja v Google Inc [2015] VSC 635, Google applied to have Mr Trkulja's defamation claim dismissed on the basis that it had no real prospect of success because:

• it was not a publisher of the relevant material;
• the search results in question were not defamatory; and
• it was entitled to immunity from suit on public interest grounds as a provider of internet search services.

Justice McDonald of the Victorian Supreme Court rejected these arguments and dismissed the application.

Google appealed to the Court of Appeal of the Supreme Court of Victoria (Court of Appeal) who disagreed with McDonald J and dismissed Mr Trkulja's claim.
In June 2018 the High Court upheld Justice McDonald's decision and allowed Mr Trkulja sue Google for defamation.

Decision of the High Court in Trkulja v Google LLC [2018] HCA 25

Under section 62 of the Civil Procedure Act 2010 (Vic) the Court may dismiss an application and give a summary judgment if it is satisfied that a claim 'has no real prospect of success'. In its unanimous judgment, the High Court (Kiefel CJ, Bell Keane, Nettle and Gordon JJ) noted that this power 'is not lightly to be exercised' but does not require that the plaintiff's case be 'hopeless' or 'bound to fail'.

The High Court rejected Google's arguments that the claim had no real prospect of success and should be dismissed.

Publication

On the question as to whether Google had published the relevant material, the High Court observed that there can be no certainty regarding Google's involvement in the compilation and publication of search results before discovery has occurred. The High Court upheld the finding by Justice McDonald that it is strongly arguable that Google's 'intentional participation in the communication of the allegedly defamatory results to Google search engine users' makes it a publisher of the search results, but stated that no decision on the issue of publication should be made until after discovery.

Public interest immunity

The High Court rejected Google's argument that it should be immune from defamation proceedings due to the public interest in its provision of a search engine. In that respect, the High Court agreed with Justice McDonald who noted that the broad range of defences already included in defamation laws weigh against the development of a specific defence for search engine operators.

The High Court left open the possibility that Google may be able to claim that an existing defence (such as innocent dissemination) applies.

Defamatory nature of search results

The High Court observed that a defamation case should be dismissed only 'with great caution' on the basis that the relevant material is 'incapable of bearing a defamatory imputation'. This is because the question of whether defamation has occurred is one 'about which reasonable minds may sometimes differ'.
The High Court disagreed with the Court of Appeal's finding that the auto-completions were not capable of being defamatory, and found that at least some of the search results could have conveyed one or more of the alleged defamatory imputations to an ordinary reasonable viewer. In particular, the High Court found it would be open to a jury to conclude that the relevant ordinary reasonable person would infer that unknown persons whose pictures appear after searching the terms in question are 'in some fashion opprobriously connected with criminality and the Melbourne criminal underworld'.

Mr Trkulja can now continue to pursue his claim against Google in the Victorian Supreme Court.