Last week, on 13 June 2018, the High Court of Australia unanimously allowed an appeal from the Supreme Court of Victoria’s Court of Appeal (VSCA). The decision overturned was a summary dismissal of a defamation proceeding brought by Michael Trkulja (the “Appellant”) against Google LLC (the “Respondent”). The Court, with Chief Justice Kiefel, Justices Bell, Keane, Nettle and Gordon residing, held that the proceeding has a real prospect of success, contrary to the judgment of the VSCA. The proceeding was summarised by the full court at paragraph :
“This is an appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria (Ashley, Ferguson and McLeish JJA), on appeal from an order of the primary judge (McDonald J). McDonald J ordered that an application by the respondent, Google Inc (now Google LLC ("Google")), to set aside a defamation proceeding brought by the appellant, Mr Trkulja, against Google, and its service out of the jurisdiction on Google, be dismissed. McDonald J rejected Google's contention that the proceeding has no real prospect of success. In allowing the appeal, the Court of Appeal held, to the contrary, that the proceeding has no real prospect of success.
For the reasons which follow, McDonald J was correct to refuse to set aside the proceeding and, therefore, the appeal to this Court should be allowed.”
The original statement of claim made against the Respondent was that the Respondent defamed the Appellant such that (see paragraph ):
“Google defamed him by publishing images which convey imputations that he "is a hardened and serious criminal in Melbourne", in the same league as figures such as "convicted murderer" Carl Williams, "underworld killer" Andrew "Benji" Veniamin, "notorious murderer" Tony Mokbel and "Mafia Boss" Mario Rocco Condello; an associate of Veniamin, Williams and Mokbel; and "such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a website that chronicles crime in [the] Melbourne criminal underworld"."
In response to the Appellant’s claim of defamation, the Respondent, “[b]efore McDonald J, […] put its application for summary dismissal on three bases: (i) that it did not publish the images matter or the web matter; (ii) that the matters in issue were not defamatory of Mr Trkulja; and (iii) that Google was entitled to immunity from suit” (paragraph ).
Justice McDonald’s decision was summarised in the High Court judgment at paragraphs ,  and :
“Based on a careful consideration of the present state of authority, including the decisions of Beach J in Trkulja v Google (No 5)  VSC 533 (against which there was no appeal), and of Blue J in Duffy v Google Inc (2015) 125 SASR 437, McDonald J concluded that it was strongly arguable that Google's intentional participation in the communication of the allegedly defamatory search results relating to Mr Trkulja to users of the Google search engine supported a finding that Google published the allegedly defamatory results.
McDonald J also rejected Google's contention that a Google search engine user or a person looking over his or her shoulder would not think less of a person such as Mr Trkulja because his photograph is included in the search results or because his photograph or references to his name appear in "snippets" and hyperlinks returned by web searches and autocomplete predictions. His Honour illustrated the point by reference to a compilation of images of Mr Trkulja among images of convicted criminals Judith Moran, Matthew Johnson and Tony Mokbel, which appeared at page four of the web matter as reproduced in Annexure B, and concluded that it was certainly arguable that a reasonable search engine user would look at the compilation and assume that Mr Trkulja was a convicted criminal.
McDonald J further rejected Google's contention that Google should be held immune from suit as a matter of public interest, observing, correctly, that the range and extent of the defences provided for in Div 2 of Pt 4 of the Defamation Act 2005 (Vic) militate heavily against the development of a common law search engine proprietor immunity.”
The Respondent then appealed to the VSCA on the same grounds. The findings of the VSCA are summarised as follows (paragraph ):
“The Court of Appeal found it unnecessary to decide the first ground and rejected the third. But the Court of Appeal upheld the second ground, ruling 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".”
The appellant then applied to the High Court by grant of special leave. In allowing the appeal, the High Court found that at least some of the search results complained of were capable of conveying to an ordinary person that the appellant was in association with the Melbourne criminal underworld. The High Court therefore held that the search results had a real prospect of conveying one or more of the defamatory imputations alleged. In coming to this conclusion, the Court discussed the test for assessing the capacity to defame:
“The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience (paragraph ).”
The High Court then discussed the VSCA’s assessment of the search result’s capacity to defame (see paragraphs ,  and ):
“The Court of Appeal approached the matter on the basis that Mr Trkulja's claim is a composite claim wherein all of the search results comprised in the images matter (Annexure A) are to be looked at as one single composite publication, all of the search results comprised in the web matter (Annexure B) are to be looked at as another single composite publication, and, in determining whether any of the searches comprised in Annexure A is capable of conveying the allegedly defamatory imputations, the ordinary reasonable search engine user is to be attributed with knowledge of the contents of all of the searches comprising Annexure A and Annexure B, and vice versa.
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.
Be that as it may, it is evident for the reasons given by McDonald J 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 opprobriously 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. Whether or not the search results are viewed individually or as a composite does not affect that conclusion. As will be explained, the Court of Appeal's reasoning to the contrary must be rejected.”
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Trkulja v Google LLC  HCA 25.
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