Trkulja v Google LLC  HCA 25
The High Court has allowed an appeal against a decision of the Victorian Court of Appeal, leaving open the possibility for Google to be sued in defamation for allegedly defamatory results appearing in Google searches. This raises questions as to how defamation law plays out in the digital sphere and more broadly, what this means for freedom of expression in Australia.
Trkulja v Google concerns proceedings brought against Google by Mr Trkulja in relation to a series of images, autocomplete predictions and results that he alleges were defamatory. Mr Trkulja says that Google defamed him by publishing images that conveyed him as a 'hardened and serious criminal in Melbourne', in the same league as other known criminals. Viewers looking at the images were also allegedly connected to articles and links suggesting he was associated with those criminals. Additionally, autocomplete predictions were said to have been generated when typing in 'micheal trk' and similar phrases, linking users to webpages which included references to a defamation lawyer and an online solicitor.
Mr Trkulja took issue with the images, autocomplete predictions and results and wrote to both Google and Google Australia Pty Ltd, drawing their attention to the alleged defamatory material and requesting, amongst other things the images and links be removed from their computers and servers. Ultimately, Google provided a detailed response to Mr Trkulja outlining what it had removed and also what it declined to remove.
Before the Supreme Court of Victoria, Justice McDonald heard Google's application for summary dismissal of the matter, on the basis: (i) it did not publish the images matter or web matter; (ii) that the matters in issue were not defamatory of Mr Trkulja; and (iii) that Google was entitled to immunity from suit. Based on careful consideration of the state of authority, Justice McDonald concluded that the defamation proceeding should not be set aside.
However, on appeal to the Victorian Court of Appeal (Court of Appeal) , it was held that Justice McDonald should have struck the case out. The Court of Appeal upheld the second ground, namely, neither the images nor the results conveyed any of the defamatory imputations relied upon.
The present case concerns an appeal to the High Court of Australia.
The High Court held, in a unanimous judgment, that 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. As such, the Court of Appeal erred in concluding that Mr Trkulja's proceeding had no real prospect of success.
In making this determination, the High Court dealt primarily with the issues below.
In relation to the question of whether Google was a publisher, the High Court found that Justice McDonald was correct to hold that a strongly arguable case existed in which Google published the defamatory results. The High Court was critical of the Court of Appeal for going beyond the legal question of publication, to make a finding on mixed fact and law. The High Court highlighted that although the law as to publication is clear, its application to fact is more difficult and no determinative finding could be made until after discovery.
Capacity to defame
As to the second issue, the capacity to defame, the High Court found that the Court of Appeal had erred in its application of the test. The High Court emphasised that the test for whether a published matter is capable of being defamatory, is what ordinary reasonable people would understand by the matter complained of. It is not, as the Court of Appeal stated, whether "any of the defamatory imputations which are pleaded [are] arguably conveyed". The High Court disagreed with the Court of Appeal's finding that the autocomplete predictions 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, it would be open to a jury to find 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".
One of the key the tensions in this arena is between freedom of expression and an individual's rights to protection of reputation and of one's image. Trkulja was widely regarded as an opportunity for clarification in Australia, on when freedom of expression will be curtailed in digital spaces. Arguably, the High Court did not go so far as providing this clarification but left the possibility open by allowing for an appeal against Google.
Currently, constraints to freedom of expression stem only from defamation law and its development on a case by case basis. The High Court did not go so far as to expound a binding principle on freedom of expression in Australia. Rather, it hinted that the protection of one's reputation could be a limit to freedom of expression only where defamation is found via properly tested evidence, along with the testing of any available defences. In making this comment, the High Court cited his Honour President Kirby in Wickstead v Browne (1992) 30 NSWLR 1. In that case President Kirby observed that 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 the trial concluded. This is because it allows for understanding and insight as to how a principle should be developed. The High Court did not think that such an opportunity been afforded in this case.
As to publication, defamation law has, of course, had to adapt to the changing landscape from print media to digital content. Trkulja highlights that courts are adept at understanding this landscape and had no issue in agreeing with Justice McDonald's assessment that Google could be considered a publisher.
It remains a question, in Australia, as to how exactly freedom of expression will be balanced with rights concerning protection of reputation and image. The High Court has ultimately provided another opportunity for this question to be considered by allowing an appeal.
Charlette Bunn is an Overseas Practitioner at Allens.