Google Inc v Trkulja [2016] VSCA 333

Google Inc v Trkulja [2016] VSCA 333 - VSCA 2016 case summary — Zoe

[71]

3 December 2012

Milorad (aka Michael) Trkulja

...

Email; igoogle@bigpond.com

URGENT

NOT FOR PUBLICATION:

CONFIDENTIAL AND LEGAL TAKE DOWN NOTICE

By Registered Post

Google Australia Pty Ltd

Level 5, 48 Pirrama Road

PYRMONT NSW 2009 AUSTRALIA

AND TO:

By Registered Post

Google Inc

1600 Amphitheatre Parkway

MOUNTAIN VIEW, CA 94043 USA

Concerns Notice: s.14 Defamation Act 2005 (Vic)

Dear Sirs,

My name is MILORAD TRKULJA (also known as (MICHAEL TRKULJA). I am writing with respect to certain articles and photographs, images and text that is accessible by typing into the Google search engine, www.google.com.au 'Melbourne underworld crime photos'. My photographic is published with photographs of Melbourne underworld criminals, drug traffickers and convicted murders. If you click on the link for 'Images for Melbourne criminal underworld photos' the search results shows that my photographic image is mixed with the photographs of Melbourne underworld criminals, drug trafficker and convicted murders. My photograph is accessible by typing into the www.google.com.au/Images (website and images matter).

My Take Down Notice Michael Trkulja and Milorad Trkulja

All defamatory article and images of Michael Trkulja and Milorad Trkulja are accessible from the Google websites www.google.com.au and www.google.com.au/Images containing photographs of "Melbourne underworld criminals". My photographic image is mixed with the Melbourne underworld criminals, drug trafficker and convicted murders and drug baron Tony Mokbal, and his kingpin killer Carl Williams and his 'hit man' Andrew Veniamin Banji. If you click on the Google link for 'Images for Melbourne criminal underworld photos' my photographic image is mixed with the Melbourne underworld criminals, drug traffickers and convicted murders.

My photograph is also accessible by typing into the Google image search engine www.google.com.au/Images. This web page will no doubt confuse people to believe me to be part of the above Melbourne underworld criminals. I enclose for your reference a copy of the defamatory article and photos images of myself ("the Images matter").

In particular, I note that my photograph Michael Trkulja and Milorad Trkulja) are published by the photographs of well-known convicted murders and drug traffickers who are known as 'Melbourne underworld criminals'. (Mafia's Drug Empire)

Take down "Google Autocomplete" of Michael Trkulja and Milorad Trkulja

When you type 'michael trk' into the Google website www.google.com.au and www.google.com the autocomplete results display the following:

[73]

h) http://www.google.com.au/#hl=cn&sugexp=les%3Bernk_eprob&gs_rn=0&gs_ri=hp&cn=12&gs_id=le&shr=t&q=michael+trkulja&pf=p&tbo=d&output=search&sclient=nsv-ab&oq=michael+trku&gs_l=&pbx=1&bav=on.2.or.r_gc.r_pw.r_qf&fp=a688cdd845976958&bpel=39314241&blw=1067&bih=486

For your information, I confirm that "Tony" Mokbel (Antonios Sajih "Tony" Mokbel) is a criminal and convicted drug trafficker and murderer from Melbourne Australia. Several years ago Mr Tony Mokbel ago fled from Australia to Europe. In 2008 he was extradited from Greece back to Australia. In July 2012 Mokabel was sentenced to 30 [y]ears in prison for his crimes. My photograph can be viewed by anyone with the appropriate URL address and/or anyone who has previously bookmarked those web pages. As at the date of this letter, the material remains viewable by all Google users WORLD WIDE.

For your information I include in this Take Down Notice, My photograph is placed adjacent to a photograph of worldwide and well known 'Melbourne underworld criminals' and drug traffickers and convicted murders: These are Carl Williams and his Drugs Boss partner Tony Mokbal and they 'hit man' Andrew Veniamin Banji. He was a career criminal and long-time associate of Melbourne underworld criminal Carl Williams and Tony Mokbal

My photograph is placed adjacent to a photograph of Judy Moran convicted Criminal. On the other side of my image is a photograph of a well known underworld criminal and Calabrian Mafia money man the late Mario Condello as well as photographs of the head of the Italian-Australian Mafia, the Alphonse Gangitano. He was a career criminal and long-time associate of Melbourne underworld criminal Graham Kinniburgh. The photographs of these the criminals have been widely circulated in Australia and worldwide.

Users of the Google search engine will see my photograph mixed with those criminals.

As a direct result of the publication of my photograph (of Michael Trkulja aka Milorad Trkula) with images of criminals I have suffered, and will continue to suffer, irreparable injury and harm to my reputation and that of my family in my ethnic community. I have also suffered significant distress, embarrassment and humiliation in my church community.

Accordingly, I demand that by 4.00pm 21 December 2012 Google removes all defamatory articles, text, photographs and images of myself, Michael Trkulja and Milorad Trkulja) from their search results for the search terms, Melbourne Underworld Criminals. and 'Melbourne Criminal Underworld Photos'

I also demand that by 4.00pm 21 December 2012 Google take down or removes the results for their 'Google Autocomplete' the following terms.

[83]

Accordingly, I demand that by 4.00pm 21 December 2012 the Google Inc and Google Australia Pty Ltd take down this 6 websites in paragraph 10 to 16 above.

Be advised that Google Australia Pty Ltd and Google Inc is fully responsible for all defamatory images and articles posted on this 6 websites in paragraph 10 to 16 above.

According to the Australia Defamation Law. The Google Inc is the publisher and are responsible for all Google domains published defamatory article and images worldwide. And they are accessible from Australia. I attach the decision in the Supreme Court the landmark deformation case reference Milorad Trkulja v Google Inc LLC & Google Australia Pty Ltd [2012] VSC 533\ also enclosed Judgment by His Honour Justice Beach

http://scv2.webcentral.com.au/judgments/pdfs/T0533.pdf#page=1&navpanes=0&toolbar=1&scrollbar=1&pagemode=none

("the Defamatory imputations")

I am advising you that according to Australian case law a person may be liable not only for direct remarks, but also for conveyed imputations (see Favell v Queensland Newspapers Ltd (2005) 221 ALR). I also remind you that my right to sue you in this jurisdiction of The State of Victoria, Australia, in which I have an established good reputation has been established in the Australian High Court (see Dow Jones and Company Inc v Gutnick (2002) HCA 56).

None of these defamatory meanings are defensible. These imputations are malicious and the comments have damages my good reputation and caused hurt feelings in myself and my family. There was, and is, no factual foundation for any of the imputations. I am not a criminal or "gangster". I remind you that under Australian defamation laws it is incumbent on you, as the defendant, to provide evidence of the truth of this imputation.

As a direct result of the imputation in your publication of the word "gangster", I suffered, and continue to suffer irreparable injury and harm to my reputation and feelings. Moreover I suffered and continue to suffer distress, embarrassment and humiliation within my family, my community and among my church members.

I further demand that you immediately remove and/or take down all articles photographs and images of myself (Michael Trkulja and Milorad Trkulja) referenced in this take down notice that are within your possession, custody or control including from all servers, back-up servers, and other electronic storage devices, remove all links to, and/or information directing viewers to copies of the Defamatory Material.

You would be well advised to comply with these take down notice demands immediately and to inform me in writing of your agreement to do so by 21 December 2012. Please note that in the event that these matters are not agreed, I will instruct my solicitor to issue legal proceedings against you without further notice.

My claim will include aggravated and exemplary damages pursuant to The Defamation Act 2005 (Vic).

This letter does not purport to constitute a complete or exhaustive statement of all of my (Michael Trkulja or Milorad Trkulja) rights, contentions or legal theories. Nothing contained herein is intended neither as, nor should it be deemed to constitute, a waiver or relinquishment of any of My rights or remedies whether legal or equitable, all of which are hereby expressly reserved.

My photos images mixed with "Melbourne underworld criminals" I have suffered, and will continue to suffer, irreparable injury and harm to my reputation. No amount of money can actually compensate me for the distress and shock dealing with My reputation being questioned by my friends and the Community and Church members.

Yours sincerely

Milorad Trkulja (also known as Michael Trkulja)

NB: The Google Australia Pty Ltd and The Google Inc never responded to my Concern Notice dated 1. July 2011.

Please be advised for the court records that I sent a Concerns Notice on July 1st 2011 by registered post to Google Australia Pty Ltd. The registered post number is: AP 512212960015. I also sent a Concerns Notice by registered post to Google Inc on 1 July 2011. The registered post receipt number is RR142488105AU.

On July 22nd 2011, I received an email from removals@google.com signed by 'The Google Team' with an attachment 'Letter from Trkulja to Google- Notice 1/7/2011'. They requested that I send them the same publication that I already had sent with the landing page URL. A copy of the email will be produced to the Supreme Court.

The perfect example in December 2007, in the Supreme Court Melbourne Australia:

Plaintiff's Mark Forytarz & Paul Castran v Google Australia Pty Ltd. The Google Australia Pty Ltd has removed defamatory publications from www.google.com.au and www.google.com.au/images

Second example Dr Duffy who suing v Google Australia Pty Ltd and Google Inc in Adelaide South Australia.

Google Australia Pty Ltd has removed part of defamatory publication from www.google.com.au and www.goole.com.au/images 10 day before Dr Duffy served Concerning Notice to Google Inc in USA..

The Google Australia Pty Ltd did not request that Dr Duffy provide them with Urls.

[118]

Employees of Google create the algorithms which automatically generate the search results which are the subject of Mr Trkulja's complaint in the current proceedings. Arguably, they stand in a position similar to the solicitor Norman in Webb. Their skill and expertise is employed by Google for the purpose of creating a search engine which publishes results to online users. As Beach J observed in Trkulja, the automated systems produced the search results which they were designed to produce. If Google intends its search engines to publish material on the internet in response to user queries, whatever that material might be, it is arguable that this makes Google a publisher of the material.
In [18] and [19] of Trkulja, Beach J drew an analogy between the position of Google as the operator of the search engine and authorities which have held newsagents and libraries as being publishers notwithstanding the absence of a specific intention to publish defamatory material. Plainly, Beach J was referring to a very long line of authority dating back to the late 19th century to the effect that newsagents and libraries may be publisher notwithstanding the absence of an intention to publish particular material which is defamatory. This line of authority commences with Emmens v Pottle and Vizetelly v Mudie's Select Library.
No Australian court has held that Emmens or Vizetelly were wrongly decided. Both cases were cited with approval by the High Court in Thompson. In Thompson, Channel 7 operated a television station in the Australian Capital Territory. On 21 February 1984, it broadcast a program entitled 'The Today Show'. The program was produced live by Channel 9 from its studios in Sydney. The program included a live interview with a young woman during which it was alleged that her father, Mr Thompson, had committed incest with her from the time she was seven years old and had fathered a child to whom she had given birth when she was 14. There was no evidence to indicate that there was any truth in this allegation. Thompson sued Channel 7 seeking damages for defamation. The High Court confirmed the availability under Australian law of the defence of innocent dissemination. Brennan CJ, Dawson and Toohey JJ cited with approval the following passage from Duncan and Neill on Defamation:

[134]

the same search performed by two different users can (likely, will) return different results even if the two users should make that search at exactly the same time; 2. in order for the Google search engine to be of any use in locating information that is on the web at any given time, it must be designed to utilise fully automated programs that must be capable of being executed extremely quickly; 3. the Google search engine only returns such results to a user in response to that user's query; 4. every month, over 100 billion searches are made by users of the Google search engine and, of those searches, 15% (or approximately 500 million each day) are ones that have never been made before; and 5. the Google search engine is not capable of ascertaining what meanings may be conveyed by the words or images constituting the content of a particular webpage, nor is the Google search engine capable of ascertaining meanings in respect of trillions of documents and/or the unfathomably large number of different possible ways in which parts of those documents may be combined in the search results returned to a user.
The learned primary judge erred in failing to find that intention with respect to the words in question is not established by showing no more than a defendant developed and made available to the public a mechanism capable of returning, out of an unfathomably large number of possible search results, the ones complained of.
The learned primary judge erred in finding that Google Inc had wrongly sought to conflate two issues, namely whether it had published defamatory materials and, if so, whether it could avail itself of a defence of innocent dissemination.
The learned primary judge erred by conflating the two issues identified in ground (6) above, and by wrongly considering that the defence of innocent dissemination was relevant to whether the plaintiff could discharge the onus of proving that Google Inc was the 'publisher' of automatically generated (i) search results and (ii) completions of search queries.
To the extent that the learned primary judge relied upon 'the potential availability of a plea in issue estoppel' to support the conclusion that Google Inc had failed to show that the plaintiff had no real prospects of success, the learned trial judge erred in so doing, for the following reasons:

[163]

I do not intend to lay down any general rule as to what will absolve from liability for a libel persons who stand in the position of these defendants. But it is a material element in their position that the jury have found in their favour as they have done. I agree that the defendants are prima facie liable. They have handed to other people a newspaper in which there is a libel on the plaintiff. I am inclined to think that this called upon the defendants to show some circumstances which absolve them from liability, not by way of privilege, but facts which show that they did not publish the libel. We must consider what the position of the defendants was. The proprietor of a newspaper, who publishes the paper by his servants, is the publisher of it, and he is liable for the acts of his servants. The printer of the paper prints it by his servants, and therefore he is liable for a libel contained in it. But the defendants did not compose the libel on the plaintiff, they did not write it or print it; they only disseminated that which contained the libel. The question is whether, as such disseminators, they published the libel? If they had known what was in the paper, whether they were paid for circulating it or not, they would have published the libel, and would have been liable for so doing. That, I think, cannot be doubted. But here, upon the findings of the jury, we must take it that the defendants did not know that the paper contained a libel. I am not prepared to say that it would be sufficient for them to show that they did not know of the particular libel. But the findings of the jury make it clear that the defendants did not publish the libel. Taking the view of the jury to be right, that the defendants did not know that the paper was likely to contain a libel, and, still more, that they ought not to have known this, which must mean, that they ought not to have known it, having used reasonable care - the case is reduced to this, that the defendants were innocent disseminators of a thing which they were not bound to know was likely to contain a libel. That being so, I think the defendants are not liable for the libel.[73]

[240]

The internet is a global network of networks of computers. Computers connected to the internet communicate with each other - requesting and receiving data - by means of a common language, the Internet Protocol. The World Wide Web is a vast system of interlinked documents ("web pages") which can be accessed by computers connected to the internet. Each web page has a unique address, or URL. An internet user who wishes to access a web page at a known address can access that web page by entering the address into the web browser on his or her computer.
An internet user who wishes to access a web page but does not know its address, or wishes to locate a selection of web pages relevant to a particular topic, is likely to use an internet search engine, like the Google search engine, in much the same way that a person who does not know the telephone number of a particular business, or wishes to contact a local provider of a particular product or service, might once have been likely to use a telephone directory.
The Google search engine allows internet users to search for web pages by entering search terms into a search field and clicking on a button marked "Google Search" ("the search button"). Google keeps and constantly updates an index of billions of web pages which enables it to respond to users' search requests. Google does not control the search terms entered by users of the Google search engine, or the material available on the internet.
During the period relevant to these proceedings, if a user of the Google search engine entered search terms into the search field and clicked on the search button, the Google search engine would display two types of search results: "organic search results" and "sponsored links".
Organic search results are links to web pages, which are ranked in order of relevance to the search terms entered by the user. The Google search engine always displays organic search results, and organic search results are always displayed free of charge. Google does not sell placement in its organic search results. Instead, the order of relevance of organic search results is determined by a complex proprietary algorithm developed by Google which is a function of many factors, including the content of each web page which Google has indexed, and the number and type of links between each of those web pages.[103]

[258]

For example, page 12 of Annexure A of the Amended Statement of Claim (see exhibit "VBMW-15") shows, in the 3rd row, what I understand to be photographs of the Plaintiff (second-last photograph), and of Mr John Silvester (last photograph). When I performed a search on Google Image Search with the terms "john silvester",·"melbourne", "criminal" and "underworld", I obtained the results shown in exhibit "VBMW-9". When I clicked on the 2nd image in the 2nd row (this image seems to me to be identical to the .image of Mr John Silvester as shown on page 12 of Annexure A), I obtained the interstitial page shown in exhibit "VBMW-10'". When I clicked on "Visit page", the browser on my computer displayed the webpage with the URL http://www.australianspeaker.com/speaker1386-John-Silvester, a copy of which is exhibit "VBMW-11". That webpage contains the search terms "john silvester", "melbourne", "criminal" and "underworld", as highlighted in the exhibit.
When I performed a search on Google Image Search with the terms "trkulja", "melbourne", "criminal" and "underworld", I obtained the results shown in exhibit "VBMW-12". When I clicked on each of the 1st, 2nd and 3rd images in the 1st row (these images seem to me to be identical to the image of the Plaintiff as shown in the 3rd row on page 12 of Annexure A), I obtained the interstitial pages shown in exhibit "VBMW-13". When I clicked on "Visit page" for each of the three interstitial pages, the browser on my computer displayed the webpages with the URLs http://www.afr.com/p/national/melbourne\_man\_wins\_in\_google\_case\_vAGdjwqAJNsOt2ZXsOhGHL, http://www.smh.com.au/business/the-biggest-evil-milorad-trkula-wants-to-be-removed-from-google-20131205-2yrqj.html and http://www.telegraph.co.uk/technology/google/9648750/Google-loses-David-and-Goliath-defamation-case.html, copies of which are exhibit "VBMW-14". Those webpages contain the search terms "trkulja", "melbourne", "criminal" (or "crime") and "underworld", as highlighted in the exhibit.
By reason of the changing nature of the Web, it is impossible for me to say with certainty that the webpages from which the images of the Plaintiff and of Mr John Silvester (shown in the 3rd row of page 12 of Annexure A) originated are the same webpages as the ones shown at exhibits "VBMW-11" and "VBMW-14". The three searches were done at different times - the one that led to the printout at page 12 of Annexure A was done on 8 August 2013, the other two searches were done on 30 May 2014.
However, what the searches done on 30 May 2014 (see "VBMW-9" to "VBMW-11") do show is that the image of an individual (for example, Mr John Silvester) can be included in the search results for queries that include the search terms "criminal", "melbourne" and "underworld" simply because those terms appear in the webpage which contains that image. There could be nothing at all in the content of that webpage which imputes criminality or being part of the "underworld" of Melbourne.[112]

[292]

Although Google Inc. has no control over the Web, the Web crawler may visit, and the indexer program may index, a webpage that contains material that a person claims infringes their rights, such as copyright. As discussed above, an indexed webpage will appear as part of the search results if the ranking algorithms assess the content of that webpage to be relevant to the query that the user has entered into the Google Search Engine.
The next point is that the Google Search Engine is not capable of evaluating the content of a webpage, by which I mean the meanings that are conveyed by the words and images used on that webpage. Nor is the Google Search Engine capable of making a judgment call as to the topic or topics addressed by the content of that webpage. The Google Search Engine is unable to discern the standpoint of the author of a webpage on a particular topic. The Google Search Engine is unable to evaluate whether statements made in a webpage are true or not. Not only is the Google Search Engine not capable of doing the above, in my opinion, given the current state of the art in computer engineering, word, voice and image recognition, it is not feasible to design any automated system, on which a search engine might be based, which could determine those matters. It is well beyond the current state of the art to contemplate an automated system that could determine whether statements made on a webpage are true or not.
The Google Search Engine cannot discern whether the use of an image on a particular webpage is authorised by the copyright owner of that image. By way of example, one website owner may have obtained permission from the copyright owner of a particular photograph to use that photograph on a webpage, whilst another website owner might use the exact same photograph without having obtained permission from the copyright owner. The Google Search Engine has no ability to determine which use of the photograph, if any, is authorised.
It is also important to note that when a removal request is given effect by Google Inc., the entire website or domain is not removed from the search results, just the specific page complained of, corresponding to the URL communicated to Google Inc.
In terms of preventing a certain webpage from being returned as part of search results when a user enters a query in the Google Search Engine, this can be done only if Google Inc. is notified of the unique URL for that page. Importantly, even when Google Inc. effects a removal, this does not remove that webpage from the Web. As I said above, Google Inc. does not control the Web. Any user who knows the URL for that webpage can put that address directly in his/her browser and view the page. Similarly, existing hyperlinks in other webpages might take a user to that webpage.
If a request for a removal on legal grounds is received by Google Inc, it is considered by a legal team within Google Inc. If the decision is made to remove a webpage from the search results, the URL for that web page is given to a specific engineering team that will put into effect the removal request.
As part of the removals engineering team, I would receive from the legal team within Google Inc. a request to remove a webpage from search results returned for a particular country code domain of the Google Search Engine. For example, the request would be to remove the webpage from results returned from the Google Search Engine at google.com.au. I would then manually add the unique URL for that webpage to a list. During the ranking stage, the algorithm removes all the URLs found in the removals list from the list of possible results, before a ranked list of results is returned to the user's browser for display by the browser on that user's computer (or tablet or smartphone).
In my experience, it is only possible to remove a webpage from search results if Google Inc. is provided with the exact URL for the webpage containing the content complained of.[124]

[385]

It is important to appreciate the differences between the principles which derive from the notice board line of cases and those which constitute the innocent dissemination defence.
As analysed above, the innocent dissemination defence is a common law doctrine developed to mitigate the harshness of the strict publication rule. While it does not avail the first or main publishers it brings relief to subordinate publishers who have knowingly participated in the process of disseminating the article concerned. The defence is therefore applicable to persons who are admittedly publishers, although playing a subordinate role, allowing them to be exonerated from liability if they discharge the burden of showing that they did not know that the article which they had helped to disseminate contained the offending content and that such lack of knowledge was not due to any lack of reasonable care on their part.
In contrast, the occupiers in the notice board and graffiti cases have not in any sense assisted or participated in the originator's publication of the libel. These are not cases involving anyone who has played a role in a scheme for distributing the offending publication seeking relief from the strict rule. As Greene LJ pointed out in Byrne v Deane, the posting of the defamatory verse on the club's notice board was an act of trespass. A person who defaces an occupier's walls with graffiti prima facie does not do so with the approval or encouragement of the occupier. What this line of cases addresses are the conditions which must be satisfied before the occupier can be regarded as having turned himself into a publisher of the libel. That occurs only if the plaintiff shows that the occupier became aware of the libellous statement on his premises and allowed it to remain in place in circumstances which justify the inference that he has adopted or ratified its publication. If the occupier was not aware or if the inference cannot properly be drawn, he does not make himself a publisher of the trespassing inscription and is not liable at all. These rules are therefore not about relieving a person's prima facie liability as a publisher but about whether or not an occupier is constituted a publisher. Since it is about establishing the occupier's liability as a publisher (and not about a publisher establishing a defence), the onus rests on the plaintiff.
It follows from the distinctions drawn above that I do not share the approach in some of the reported cases involving libel in an internet context where the Byrne v Deane principles appear to have been treated merely as a facet of the innocent dissemination defence or the defence under section 1 of the Defamation Act 1996, in the United Kingdom.[162]

[387]

Once the nature of the Byrne v Deane principles is grasped, it becomes clear that they do not apply to internet platform providers like the respondents. The provider of a discussion forum is in a wholly different position from that of the occupier of premises who is not in the business of publishing or facilitating publication at all, but who has had imposed on him the defamatory act of a trespasser.
The respondents plainly played an active role in encouraging and facilitating the multitude of internet postings by members of their forum. As described in Section B of this judgment, they designed the forum with its various channels catering for their users' different interests; they laid down conditions for becoming a member and being permitted to make postings; they provided users browsing their website access to the discussion threads developed on their forum; they employed administrators whose job was to monitor discussions and to delete postings which broke the rules; and they derived income from advertisements placed on their website, a business model which obviously benefits from attracting as many users as possible to the forum.
The respondents were therefore, in my view, plainly participants in the publication of postings by the forum's users and in that sense they were publishers from the outset, it being in issue whether they were first or main publishers or merely subordinate publishers. I accept Mr Thomas SC's submission that they were in a substantively different position from the occupiers in the notice board and graffiti cases. The relevant question in the present case is whether, as publishers, the respondents are entitled to rely on, and have established, the defence of innocent dissemination, relieving themselves of the strict publication rule which would otherwise be applicable. The question is not whether, originally being non-publishers, they have, when fixed with knowledge of the defamatory postings, demonstrated their consent to and adoption of those postings, turning themselves into publishers.
In this context, I respectfully part company with the reasoning (adopted on an interlocutory basis) of the English Court of Appeal in Tamiz v Google Inc. It is reasoning which proceeds on the basis that successful invocation of the defence of innocent dissemination results in the defendant being deemed not to have published at all. For the reasons previously given, I do not accept that premise. Nor am I able to accept the distinction drawn between the notice board and graffiti analogies, nor the suggestion that "the provision of a platform for blogs is equivalent to the provision of a notice board". As indicated above, my view is that the provider of an internet discussion platform similar to that provided by the respondents falls from the outset within the broad traditional concept of "a publisher", a characteristic not shared by a golf club or other occupier who puts up a notice board on which a trespassing message is posted.
I pause to note in passing that there is rightly no suggestion in the present case that the providers of a discussion platform like the respondents should be regarded as "mere conduits" or "passive facilitators" comparable to the Post Office or a telephone company, as has sometimes been argued in certain internet cases.[163]

[412]

It has been recognised, at common law, that for a person to be fixed with responsibility for publishing defamatory words, there needs to be present a mental element. I summarised the position in Bunt v Tilley:

[21] In determining responsibility for publication in the context of the law of defamation, it seems to me to be important to focus on what the person did, or failed to do, in the chain of communication. It is clear that the state of a defendant's knowledge can be an important factor. If a person knowingly permits another to communicate information which is defamatory, when there would be an opportunity to prevent the publication, there would seem to be no reason in principle why liability should not accrue. So too, if the true position were that the applicants had been (in the claimant's words) responsible for 'corporate sponsorship and approval of their illegal activities'.

[22] I have little doubt, however, that to impose legal responsibility upon anyone under the common law for the publication of words it is essential to demonstrate a degree of awareness or at least an assumption of general responsibility, such as has long been recognised in the context of editorial responsibility. As Lord Morris commented in McLeod v St Aubyn [1899] AC 549 at 562:

'A printer and publisher intends to publish, and so intending cannot plead as a justification that he did not know the contents. The appellant in this case never intended to publish.'

In that case the relevant publication consisted in handing over an unread copy of a newspaper for return the following day. It was held that there was no sufficient degree of awareness or intention to impose legal responsibility for that 'publication'.

[23] Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process.[178]

[413]

When a search is carried out by a web user via the Google search engine it is clear, from what I have said already about its function, that there is no human input from the third defendant. None of its officers or employees takes any part in the search. It is performed automatically in accordance with computer programs.
When a snippet is thrown up on the user's screen in response to his search, it points him in the direction of an entry somewhere on the web that corresponds, to a greater or lesser extent, to the search terms he has typed in. It is for him to access or not, as he chooses. It is fundamentally important to have in mind that the third defendant has no role to play in formulating the search terms. Accordingly, it could not prevent the snippet appearing in response to the user's request unless it has taken some positive step in advance. There being no input from the third defendant, therefore, on the scenario I have so far posited, it cannot be characterised as a publisher at common law. It has not authorised or caused the snippet to appear on the user's screen in any meaningful sense. It has merely, by the provision of its search service, played the role of a facilitator.
Analogies are not always helpful, but there will often be resort to analogy when the common law has to be applied to new and unfamiliar concepts. Here, an analogy may be drawn perhaps with a search carried out in a large conventional library. If a scholar wishes to check for references to his research topic, he may well consult the library catalogue. On doing so, he may find that there are some potentially relevant books in one of the bays and make his way there to see whether he can make use of the content. It is hardly realistic to attribute responsibility for the content of those books to the compiler(s) of the catalogue. On the other hand, if the compilers have made an effort to be more informative, by quoting brief snippets from the book, the position may be different. Suppose the catalogue records that a particular book contains allegations of corruption against a living politician, or perhaps it goes further and spells out a particular activity, such as "flipping" homes to avoid capital gains tax, then there could be legal liability on the part of the compiler under the "repetition rule": see eg Gatley on Libel and Slander (11th edn, 2008) paras 11.4 and 32.8.
No doubt it would be said here too, by analogy, that the third defendant should be liable for repeating the "scam" allegations against the claimant. Yet, whereas a compiler of a conventional library catalogue will consciously at some point have chosen the wording of any "snippet" or summary included, that is not so in the case of a search engine. There will have been no intervention on the part of any human agent. It has all been done by the web-crawling "robots".
The next question is whether the legal position is, or should be, any different once the third defendant has been informed of the defamatory content of a "snippet" thrown up by the search engine. In the circumstances before Morland J in Godfrey v Demon Internet Ltd [1999] EWHC QB 244; [1999] 4 All ER 342, [2001] QB 201, the acquisition of knowledge was clearly regarded as critical. That is largely because the law recognises that a person can become liable for the publication of a libel by acquiescence; that is to say, by permitting publication to continue when he or she has the power to prevent it. As I have said, someone hosting a website will generally be able to remove material that is legally objectionable. If this is not done, then there may be liability on the basis of authorisation or acquiescence.
A search engine, however, is a different kind of internet intermediary. It is not possible to draw a complete analogy with a website host. One cannot merely press a button to ensure that the offending words will never reappear on a Google search snippet: there is no control over the search terms typed in by future users. If the words are thrown up in response to a future search, it would by no means follow that the third defendant has authorised or acquiesced in that process.
There are some steps that the third defendant can take and they have been explored in evidence in the context of what has been described as its "take down" policy. There is a degree of international recognition that the operators of search engines should put in place such a system (which could obviously either be on a voluntary basis or put upon a statutory footing) to take account of legitimate complaints about legally objectionable material. It is by no means easy to arrive at an overall conclusion that is satisfactory from all points of view. In particular, the material may be objectionable under the domestic law of one jurisdiction while being regarded as legitimate in others.
In this case, the evidence shows that Google has taken steps to ensure that certain identified URLs are blocked, in the sense that when web-crawling takes place, the content of such URLs will not be displayed in response to Google searches carried out on Google.co.uk. This has now happened in relation to the "scam" material on many occasions. But I am told that the third defendant needs to have specific URLs identified and is not in a position to put in place a more effective block on the specific words complained of without, at the same time, blocking a huge amount of other material which might contain some of the individual words comprising the offending snippet.
It may well be that the third defendant's "notice and take down" procedure has not operated as rapidly as Mr Browne and his client would wish, but it does not follow as a matter of law that between notification and "take down" the third defendant becomes or remains liable as a publisher of the offending material. While efforts are being made to achieve a "take down" in relation to a particular URL, it is hardly possible to fix the third defendant with liability on the basis of authorisation, approval or acquiescence.
These practical difficulties also impact upon the feasibility and effectiveness of injunctive relief. That is obviously a separate issue from that of responsibility for publication, but it is another illustration of the powerlessness of the third defendant to control what is thrown up by Google searches.[179]

[422]

While much was made by Google Inc in the present case of Eady J's statements in Bunt and Tamiz that an internet service provider who performs no more than a passive role cannot be a publisher, those statements have to be seen in the light of the facts in those cases. To say as a general principle that if an entity's role is a passive one then it cannot be a publisher, would cut across principles which have formed the basis for liability in the newsagent/library type cases and also in those cases where someone with power to remove a defamatory publication chooses not to do so in circumstances where an inference of consent can be drawn.[184]
In any event, and putting to one side the factual differences I have identified, to the extent that there is anything written in the judgments of Bunt v Tilley,[185] Metropolitan Schools Ltd v Designtechnica Corporation[186] and Tamiz v Google Inc[187] that might be thought to compel the conclusion that on the facts of the present case it was not open to the jury to conclude that Google Inc was a publisher of either the images matter or the web matter, then the same does not represent the common law of Australia.[188] Further, while on the facts in Bunt, the defendants were correctly described as "internet intermediaries" (whatever may be the legal consequences of such a description), it is, with respect, doubtful that that same description can be applied to an internet search engine provider in respect of material produced as a result of the operation of that search engine. That said, any such "internet intermediary" is, in any event, performing more than the "merely passive role ... [of] facilitating postings" (Cf Bunt).
It follows that, in my view, it was open to the jury to conclude that Google Inc was a publisher - even if it did not have notice of the content of the material about which complaint was made. Google Inc's submission to the contrary must be rejected. However, Google Inc goes further and asserts that even with notice, it is not capable of being liable as a publisher "because no proper inference about Google Inc adopting or accepting responsibility complained of can ever be drawn from Google Inc's conduct in operating a search engine".
This submission must also be rejected. The question is whether, after relevant notice, the failure of an entity with the power to stop publication and which fails to stop publication after a reasonable time, is capable of leading to an inference that that entity consents to the publication. Such an inference is clearly capable of being drawn in the right circumstances (including the circumstances of this case). Further, if that inference is drawn then the trier of fact is entitled (but not bound) to conclude that the relevant entity is a publisher.[189] Google Inc's submission on this issue must be rejected for a number of reasons, the least of which is that it understates the ways in which a person may be held liable as a publisher.[190]

[440]

Google was the sole operator and controller of the Google website. The paragraphs resided on Google's website. The paragraphs were communicated by Google to the user conducting a search. Google played a critical role in communicating the paragraphs to the user. The physical element of publication is present. Google did not play the passive role of a mere conduit such as an internet service provider who merely provides access to the internet or a telecommunications carrier who merely provides access to the telephone network. Google played an active role in generating the paragraphs and communicating them to the user. The mere fact that the words are programmed to be generated because they appear on third party webpages makes no difference to the physical element. It makes no difference to the physical element whether a person directly composes the words in question or programs a machine which does so as a result of the program. I agree with the analysis of Beach J in Trkulja v Google Inc LLC (No 5) in this respect.
As to the mental element, Google intended to publish the paragraphs to the user. In addition, because Google was not a primary publisher, it is necessary that Google knew or ought to have known of the existence of the paragraphs. Google had no such knowledge before Dr Duffy's notifications in or in some cases after September 2009 and cannot be regarded as a publisher of the paragraphs before that time. However, if Google acquired knowledge of the paragraphs by reason of Dr Duffy's notifications and failed to remove them within a reasonable time thereafter, the necessary mental element will be present.
The mere fact that the paragraphs were generated automatically by Google's software programs does not prevent Google being a publisher of them after notification by Dr Duffy. If Google personnel were made aware of the existence of the paragraphs generated by Google's own software programs and failed to remove them, their continuing existence thereafter was the direct result of human action or inaction rather than merely the result of machine operation.
Approaching the question from first principles, Google was a secondary publisher of the paragraphs after notification and lapse of a reasonable time to allow for their removal (if that occurred).
There is authority which supports this conclusion. In Trkulja v Google Inc LLC (No 5), Beach J held that it was open to the jury to conclude that Google published the paragraphs in that case after notification. While this was a ruling on a non-obstante application, there were no evidentiary or factual issues for the jury to decide and the ruling that the conclusion was open to the jury was tantamount to a decision that Google published the paragraphs.
There is no case in which it has been held that a search engine operator does not publish such paragraphs after the operator has been notified of them and failed to remove them within a reasonable time. In Metropolitan International Schools Ltd (t/as SkillsTrain and/or Train2Game) v Designtechnica Corp (t/as Digital Trends) Eady J held that Google was not a publisher of such paragraphs before notification or while taking reasonable steps to remove them after notification. Eady J did not go so far as to hold that Google could not be a publisher if it refused to remove them after notification. McCallum J in Bleyer v Google Inc LLC and Fenlon J in Niemela v Malamas each held that Google was not a publisher of such paragraphs before notification but explicitly said that the same conclusion did not necessarily apply after notification. The reasoning of Fenlon J strongly suggests that her Honour would have concluded that Google was a publisher of such paragraphs after notification. In particular, Fenlon J considered that the only real difference between the innocent dissemination test and the passive instrument test involves the burden of proof.[201]

[468]

As I have noted, however, the tenor of Crookes and of recent jurisprudence in England is to narrow the test for who is a publisher of defamatory material to those who do deliberate acts. In Canada this shift originates in the Supreme Court of Canada's recognition post-Charter "that what is at stake in an action for defamation is not only an individual's interest in protecting his or her reputation, but also the public's interest in protecting freedom of expression": Crookes at para 31, citing Hill v Scientology.
It is worth noting at this point that the English approach requiring a deliberate act to establish publication (the passive instrument test) is related to, but distinct from, the defence of innocent dissemination which is a well-settled principle in Canadian defamation law.
As described in Crookes at para 20 and in Society of Composers, Authors and Music Publishers of Canada v Canadian Assn of Internet Providers, 2004 SCC 45 at para 89, a defendant in a subordinate publisher role can avail itself of the defence of innocent dissemination by showing that it:
1. had no actual knowledge of an alleged libel;
2. is aware of no circumstances to put it on notice to suspect a libel; and
3. committed no negligence in failing to find out about the libel.
In short, the defence is available to defendants who, while not the creator of the defamatory material, disseminate the material in a manner that would ordinarily amount to publication save for the innocent nature of the dissemination.
In substance, the passive instrument test appears to have requirements very similar to the defence of innocent dissemination. However, it shifts the burden of proof from the defendant to the plaintiff. Where innocent dissemination is pleaded, the defendant bears the burden of showing that it had no actual knowledge of an alleged libel, was aware of no circumstances to put it on notice to suspect a libel, and committed no negligence in failing to find out about the libel.
On the other hand, if the passive instrument test is applied the plaintiff bears the burden of showing that the defendant was not a mere passive instrument because at the initial prima facie stage the plaintiff must prove the third element of publication.
The majority in Crookes did not expressly adopt the passive instrument test for publication, but Abella J endorses Metropolitan which applied it. Furthermore, much of the majority's reasoning for concluding on public policy grounds that hyperlinks should not be treated as publication, applies with equal or greater force to search results. Abella J observed at paras 34 and 36:

[546]

COUNSEL: ... so the ordinary reasonable person would suspend judgment about inferences or assumptions about the connection between one image and another because they have the immediate ability to get more context concerning that matter. So why would they jump to judgment? That would not be a reasonable viewer's stance about the matter.

ASHLEY JA: And the same with autocompletions?

COUNSEL: Yes, your Honour, the same. An autocompletion a reasonable person would not consider is a statement that they would attribute any defamatory meaning or inference to. I guess all of this emphasises, your Honour, that context is singularly important in this question of capacity to convey a defamatory meaning, and there is a real question about how much context and how deep. But stopping at the level that the High Court thought was significant, for its purposes, in the misleading case, that is sufficient for our purposes.

We know what the High Court attributed to an ordinary user of the internet in the Google case. It is supported by the material here and, indeed, it is a fortiori when you have got images, you have simply got a collection of photographs, and a person receiving that result will know that you can't jump to any conclusion about the connection between one photograph and the next. Some might recognise the former Chief Commissioner of Police, some might recognise Jill Meagher, et cetera, et cetera. No ordinary person would jump to the defamatory imputation or inference that is alleged.

...

Our submission is an ordinary reasonable user of a search engine - who it must be remembered has entered the search query in the first place, will have the degree of knowledge of the operation of the internet and the nature of search results, and the ability to contextualise them by clicking on them - that person would not think less of anyone because of the automated display by the search engine of a collection of images, or the automated completion of a search query that is partly completed.

Now, if we are right about that, we would submit that the proper conclusion to reach is that the collective or composite images relied upon are incapable of supporting a finding of defamation and, therefore, on that ground the case should be stopped.

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