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[2015] VSC 635
Supreme Court of Victoria
2015-11-17
McDONALD J
Original judgment source is linked above.
DEFAMATION - Publication - Defendant a proprietor of an internet search engine - Whether defendant intended to publish alleged defamatory material - Whether search engine proprietor should have immunity from liability.
PRACTICE AND PROCEDURE - Application to set aside service of writ out of jurisdiction - Applicable test - Whether plaintiff has real prospect of success at trial - Application dismissed.
Civil Procedure Act 2010 s 63; Div 2; r 8.09.
1 Milorad Trkulja alleges that Google Inc ('Google') defamed him by the publication on the internet of material generated by its search engine. It is not in issue that the writ and amended statement of claim have been duly served on Google. Google has not entered an appearance and it seeks an order pursuant to r 8.09 of the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules') setting aside the service of the writ and the amended statement of claim.
2 On 13 August 2015 Mr Doyle SC, who appeared with Ms De Ferrari for Google, clarified that the only basis upon which Google sought to set aside the service of the writ and the amended statement of claim was that the proceeding had no real prospect of success.[1] Mr Doyle accepted that Google's application is be determined in accordance with principles applicable to an application for summary judgment under s 63 of the Civil Procedure Act 2010 ('the Act'). Mr Doyle submitted that Mr Trkulja's claim has no real prospect of success for three reasons:
3 Mr Doyle accepted that Google's application is to be determined in accordance with the principles set out by the High Court in Agar v Hyde ('Agar').[2] In Agar, the plurality stated that the test to be applied where a defendant is served overseas and seeks to have service set aside is as follows:
The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.[3]
4 Google bears the onus of establishing that Mr Trkulja's claim has such poor prospects of success that the proceeding should not go to trial.[4]
6 Each of the three grounds advanced by Google is rejected. Google's primary contention that, as a search engine proprietor it cannot be a publisher (either before or after receiving notice of any alleged defamatory publication) is not supported by any authority. This was conceded by Mr Doyle.[6] Further, there are authorities in both the Victorian Supreme Court, the South Australian Supreme Court and superior courts in Hong Kong which are directly contrary to this contention. The judgment of Beach J in Trkulja v Google (No.5)[7]('Trkulja') is directly on point in so far as his Honour concluded that Google, as the operator of the search engine, was (and therefore can be) a publisher. I am bound to follow this judgment unless satisfied (which I am not) that it is plainly wrong. The judgments of Eady J in Bunt v Tilley[8] ('Bunt') and Metropolitan International Schools Ltd v Designtechnica Corporation & Ors[9] ('Metropolitan Schools') relied upon by Google in support of this contention, have been subject to both judicial and academic criticism.[10]
7 As to the second contention, Google has failed to establish that Mr Trkulja has no real prospect of success in establishing that the search engine results underpinning his claim were defamatory.
8 Google's third contention, that as a search engine operator it should have the benefit of an immunity from liability and defamation, is an invitation to the court to adopt the role of the legislature and is rejected.
The matters alleged by Mr Trkulja to have been published by Google
9 In Trkulja, Beach J observed that the question of whether a particular internet service provider might be a publisher in respect of defamatory material published through or via, or with the assistance of a particular internet product is 'fact sensitive'.[11] This observation is plainly correct and highlights the necessity of carefully considering the nature of the publication alleged by Mr Trkulja to be defamatory.
10 The amended statement of claim defines two matters which Mr Trkulja alleges were published by Google and are defamatory:
Both Annexures A and B are appended to this judgment.
11 The Google images matter comprises 20 pages with each page being a print out of what was displayed on the browser of a person using the image search functionality (part of the Google search engine) in response to that person entering the following terms:
12 The dates when the 20 print outs comprising the Google images matter were generated, range from 30 September 2012 to 10 December 2013. Mr Trkulja alleges, without contradiction, that on or about 3 December 2012 he notified Google of the alleged defamatory publication.[12]
13 The Google web matter is comprised of two classes of documents. First, a print out of what was displayed in the browser of a person using the web search functionality (part of the Google search engine) in response to that person entering the following search terms:
Second, print outs displayed in the browser of a user by the autocomplete functionality, at the point in time when the user has typed 'michael Trkulj' 'milorad Trkulj' and 'michael Trk'.
14 Mr Trkulja alleges that the Google images and Google web matters are defamatory of him and in their natural and ordinary meaning carry the following defamatory imputations:
15 Mr Trkulja alleges that Google is the publisher of two discreet types of publications:
16 Mr Trkulja does not allege that he has been defamed by reason of his name and image appearing online. Nor does he complain about online material regarding Melbourne's criminal underworld. Rather, he complains about Google's search engines linking his name and/or image with material relating to the Melbourne criminal underworld in the results that Google's search engine generates. This is illustrated by the fourth page of Annexure B to the amended statement of claim. Under the heading 'Melbourne underworld criminals' there are four separate images: Mr Trkulja, Judith Moran, Matthew Johnson and Tony Mokbel. Mr Trkulja's complaint is that the search term 'Images for Melbourne underworld criminals' has generated his image linked with three convicted murderers.
17 Mr Trkulja does not allege that Google is a subsidiary or secondary publisher of defamatory material which has been published by a third party. Mr Doyle accepted that '...this case is confined to meanings that would arise from the entry of a term and the appearance of images. There is no underlying material sued upon...'.[14] If there is any author of the material that is the subject of Mr Trkulja's complaints, it can only be Google. Either Google is the publisher of the material complained of or there is no publisher at all.
18 Google contends that its submission that a search engine proprietor cannot be a publisher raises two questions:
19 Mr Doyle submitted that the second question must be answered in the negative. He accepted that Google bears the onus of establishing 'that in no circumstance, whether on notice or not, can Google be a publisher.'[16] Mr Doyle conceded that there is no authority which supports the proposition that in no circumstance, whether or not on notice, can a search engine proprietor be a publisher for the law of defamation. Whilst he conceded that the judgment of Beach J in Trkulja is a contrary authority directly on point, he submitted that the decision is plainly wrong.
20 Google's written submissions in support of the contention that it is not a publisher include the following:
21 Assuming in Google's favour that it had no intention of publishing the particular combination of words and images which are the subject of Mr Trkulja's allegations, it does not follow that Mr Trkulja has no real prospect of establishing at trial that Google is a publisher of the alleged defamatory material. To the contrary, provided that Google had an intention to publish the results that its search engine produced and of which Mr Trkulja complains, Google may still be found to be a publisher.
22 As set out below, the material underpinning the defamation allegations in Trkulja differs from that in the current proceedings. Nevertheless the question of whether Google, as a search engine proprietor, is capable of being a publisher for the tort of defamation was expressly considered by Beach J. I am bound to follow his Honour's judgment unless I am satisfied that it is plainly wrong.[18] Mr Doyle conceded this.[19] Prima facie, Beach J's judgment constitutes a significant obstacle to upholding Google's primary contention that Mr Trkulja has no real prospect of establishing that Google is a publisher. As such, it is appropriate to consider the facts underlying the proceedings in Trkulja in some detail. The background to the proceedings in Trkulja are set out at [1] to [7] of the judgment as follows:
"Police Chief Christine Nixon has been urged to re-open an investigation into an unsolved murder attempt.
Former music promoter Michael Trkulja was shot in the back by a hit-man wearing a balaclava while dining at a St Albans restaurant in June 2004.
The would-be killer fled after his pistol jammed as he prepared to fire a second shot at Mr Trkulja, who had been enjoying a Sunday lunch with his elderly mother.
A Victoria Police document reveals detectives dropped the investigation because of a lack of evidence.
But Mr Trkulja, 58, now claims to know the identity of the hit man and those who hired him.
He says he has passed the names to the police.
'He (the hit man) was offered $10,000 to kill me. I know who sent him and they know that I know who they are', Trkulja told the Herald Sun.
'I've told the police. I just want justice.'
'Nobody should be shot like this.'
Mr Trkulja's lawyer, high profile solicitor George Defteros, has written to Ms Nixon seeking a fresh investigation and the request is being considered."
(a) the plaintiff was a prominent figure in the Melbourne criminal underworld;
(b) the plaintiff was so involved with crime in Melbourne that his rivals had hired a hit man to murder him;
(c) the plaintiff was such a significant figure in the Melbourne criminal underworld that events involving him were recorded on a website that chronicled crime in Melbourne.
23 In contrast to the present proceeding, in Trkulja there was underlying material which was the subject of the defamation allegations, namely the Herald Sun newspaper article which was disclosed by the operation of Google search engine. The effect of the jury's verdict in Trkulja was that Mr Trkulja established an entitlement to damages against Google in respect of the images matter for publications which post-dated notice which he provided to Google. Following the jury's verdict, Google applied for judgment notwithstanding that verdict. Google's written submission contended that it was not a publisher of the images matter. Its written submissions in support of this contention are set out at [15] of Beach J's judgment as follows:
It seems to me to be a significant factor in the evidence before me that Google Inc is not required to take any positive step, technically, in the process of continuing the accessibility of the offending material, whether it has been notified of a complainant's objection or not. In those circumstances, I would be prepared to hold that it should not be regarded as a publisher, or even as one who authorises publication, under the established principles of the common law. As I understand the evidence its role, as a platform provider, is a purely passive one. The situation would thus be closely analogous to that described in Bunt v Tilley and thus, in striving to achieve consistency in the court's decision-making, I would rule that Google Inc is not liable at common law as a publisher.
Beach J rejected the submissions set out above.
18. The question of whether or not Google Inc was a publisher is a matter of mixed fact and law. In my view, it was open to the jury to find the facts in this proceeding in such a way as to entitle the jury to conclude that Google Inc was a publisher even before it had any notice from anybody acting on behalf of the plaintiff. The jury were entitled to conclude that Google Inc intended to publish the material that its automated systems produced, because that was what they were designed to do upon a search request being typed into one of Google Inc's search products. In that sense, Google Inc is like the newsagent that sells a newspaper containing a defamatory article. While there might be no specific intention to publish defamatory material, there is a relevant intention by the newsagent to publish the newspaper for the purposes of the law of defamation.
19. By parity of reasoning, those who operate libraries have sometimes been held to be publishers for the purposes of defamation law. That said, newsagents, librarians and the like usually avoid liability for defamation because of their ability to avail themselves of the defence of innocent dissemination (a defence which Google Inc was able to avail itself of for publications of the images matter prior to 11 October 2009, and all of the publications of the web matter that were the subject of this proceeding).
...
28. 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.
29. 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, Metropolitan Schools Ltd v Designtechnica Corporation and Tamiz v Google Inc 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. 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).
30. 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".
31. 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. 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.[22]
24 Beach J's judgment (which was not appealed) bound the same parties who are litigants in the present proceeding and determined the same legal question of whether, as the operator of the search engine, Google is capable of being a publisher. This raises the question of whether it is arguable that Google is estopped from pressing in the current proceedings the very same contention rejected by Beach J.
25 In Trkulja, Google filed material facts pursuant to O 13.12(3) of the Rules in support of that part of its defence in which it denied that it was a publisher. Paragraphs [13] and [17] of these particulars are as follows:
[13] Web search services provided by the first defendant were wholly automated in that the process of indexing publicly accessible web pages on the Web, index analysis and presentation of the results of a web search query was conducted by means of software programs without any human intervention, save for the entry of the web search query by the user.
[17] Image search services provided by the first defendant were wholly automated in that the process of indexing material on the world wide web, index analysis and presentation of the results of an image search query was conducted by means of software programs without any human intervention, save for the entry of the search query by the user.
26 Google has not yet filed a defence in the current proceeding. However, based on the submissions advanced in court on 13 August 2015 it is plain that if it does file a defence it will deny that it is a publisher. Further, it is clear from the submissions advanced on 13 August 2015 that the basis upon which it will contend that it is not a publisher will include the matters set out at [13] and [17] of the material facts filed pursuant to O 13.12(3) in the Trkulja proceedings.
27 In Blair v Curran,[23] Dixon J stated:
A judicial determination involving an issue of fact or law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies...Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.[24]
28 In the current proceeding Google contends that Beach J was plainly wrong. However, it also contends that it advances submissions in the current proceeding '...on the law of publication and a requirement that the Plaintiff must prove an intention to publish the words in question - that are similar, but by no means identical, to the submissions advanced in the earlier proceedings.'[25]
29 To date, Google has not entered an appearance let alone filed a defence. As such, it has not yet pleaded to the allegation that it published the images matter and the web matter. Any denial of publication will have to be supported by material facts filed pursuant to O 13.12(3) of the Rules. Any pleading of issue estoppel could only be raised by way of reply. Absent Google's defence and any reply thereto, it is neither possible nor appropriate to express a concluded view as to whether Google is estopped from denying that it is capable of being a publisher. However, based on a consideration of the submissions advanced by Google in Trkulja, read in conjunction with the judgment of Beach J, it is arguable that Mr Trkulja may have grounds for contending that the reasoning of Beach J at [18] and [28] was legally indispensable to his judgment. If Google's contention (that as a search engine proprietor it cannot be a publisher) had been accepted by Beach J, its application for judgment notwithstanding the jury's verdict would have succeeded.
30 Absent the potential for Mr Trkulja to plead that Google is estopped from denying that is can be a publisher, I would, in any event, have concluded that Google has not established that Mr Trkulja's publication allegations have no real prospects of success. Nevertheless, the potential availability of a plea of issue estoppel reinforces this conclusion.
31 In support of its contention that in no circumstance, whether on notice or not, can Google be a publisher, Mr Doyle relied upon the three English decisions of: Bunt, Metropolitan Schools and Tamiz v Google Inc[26] ('Tamiz'). In addition, Mr Doyle referred to the judgment of McCallum J of the New South Wales Supreme Court in Bleyer v Google Inc LLC[27] ('Bleyer'). Google submitted that each of these cases were correctly decided because they exclude from the class of publishers '...those who have have essentially a passive, facilitator role.'[28]
32 In Bunt, the claimant brought proceedings for libel against six defendants. He alleged that the first to third defendants had posted defamatory messages on websites hosted by the fourth to sixth defendants, who were the claimant's respective internet service providers. It was not alleged that the fourth to sixth defendants had any role other than that of affording access to the internet for the first to third defendants. Eady J held that an internet service provider which performed no more than the role of a passive medium for communication could not be deemed to be a publisher at common law.[29]
33 In Metropolitan Schools, the plaintiff sued the first defendant for defamation in respect of comments left on a forum on a website hosted by the second defendant, Google (United Kingdom). The third defendant, Google (America) was joined on the basis that the plaintiff alleged that when an internet user used the third defendant's search engine to search for the plaintiff's courses, the search results which were shown for those search terms included links to the alleged defamatory material. Eady J considered that the central question was whether Google was to be regarded as a mere facilitator, rather than a publisher in respect of the publication of the material and whether that would remain a proper interpretation even after the date of notification. When a search was carried out by a user via the Google search engine, it was clear there was no human input from Google. Instead the search was performed automatically in accordance with computer programs. There being no such input, Google could not be characterised as a publisher at common law.[30]
34 In Tamiz, the plaintiff sued Google and Google UK Ltd in relation to eight comments posted on a blog bearing the name 'London muslim'. Eady J considered the issue of publication with respect to Blogger.com - a platform which allows an internet user to create an independent blog free of charge. Consistent with his approach in Blunt and Metropolitan Schools, Eady J concluded that Google was not a publisher because its role as a platform provider was purely passive.[31]
35 Eady J's judgment in Tamiz was appealed. The Court of Appeal affirmed Eady J's decision but not on the same grounds. Richards LJ (Sullivan LJ and Dyson MR agreeing) concluded that Eady J '... was wrong to regard Google Inc's role in respect to Blogger blogs as purely a passive one and to attach the significance he did to the absence of any positive steps by Google Inc in relation to continued publication of the comments in issue.'[32]
36 Richards LJ concluded that, prior to notification of the alleged defamatory material, Google's involvement in the publication of the blogs was not such as to make it a primary publisher.[33] He also doubted that Google was a secondary publisher as it was facilitating publication in a manner analogous to a distributor.[34] However, post-notification, Richards LJ considered that if Google allowed defamatory material to remain on a Blogger.com blog after it had been notified of the presence of that material, '... it might be inferred to have associated itself with, or to have made itself responsible for, the continued presence of that material on the blog and thereby to have become a publisher of the material.'[35] Richards LJ stated that Google's role in the provision of a platform for blogs enlivened the reasoning of Greene LJ in Byrne v Deane:[36]
...It is said that as a general proposition where the act of the person alleged to have published a libel has not been any positive act, but has merely been the refraining from doing some act, he cannot be guilty of publication. I am quite unable to accept any such general proposition. It may very well be that in some circumstances a person, by refraining from removing or obliterating the defamatory matter, is not committing any publication at all. In other circumstances he may be doing so. The test it appears to me is this : having regard to all the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it has been put ?[37]
37 The Court of Appeal in Tamiz concluded that the claim against Google '... cannot ... be dismissed on the ground that Google Inc was clearly not a publisher of the comments at all.'[38]
38 In the present proceeding, Google submits that it cannot be a publisher either before or after having been placed on notice by Mr Trkulja of the alleged defamatory material. The Court of Appeal judgment in Tamiz provides no support for this proposition. Rather, it supports the contrary proposition that once placed on notice by Mr Trkulja of the alleged defamatory material, it is arguable that by its failure to remove the material within a reasonable period, it made itself responsible for the continued presence of the material and became a publisher of that material (if it is not responsible from the outset as the originator of the material).
39 In Bleyer, the plaintiff commenced a defamation action against Google alleging publication by way of Google search engine results of seven items conveying imputations alleging various levels of criminality. The 'snippets' indicated that further material was accessible through hyperlinks to specific URL's. Google removed two URL's following notification from the plaintiff and partially removed a third URL.
40 Google sought an order that proceedings be permanently stayed or summarily dismissed because the statement of claim did not disclose a real and substantial tort in New South Wales. McCallum J ordered that the proceedings be permanently stayed. Her Honour concluded that the performance of the function of the algorithm was not capable of establishing Google's liability at common law as a publisher of the results produced by its search engine:
The evidence before me establishes that there is no human input in the application of the Google search engine apart from the creation of the algorithm. I would respectfully disagree with the conclusion reached by Beach J in Trkulja that the performance of the function of the algorithm in that circumstance is capable of establishing liability as a publisher at common law. I would adopt the English line of authority to the effect that, at least prior to notification of a complaint (and on the strength of the evidence before me), Google Inc cannot be liable as a publisher of the results produced by its search engine.[39]
41 As is clear from the passage set out above, her Honour's conclusion that Google was not a publisher was confined to the position pre-notification of the alleged defamatory material. Her Honour considered the position post-notification to be 'more complex'.[40] The fact that part but not all the material complained of had been removed post-notification was '... probably enough to save the claim from summary dismissal on the General Steel test.'[41]
42 However, her Honour concluded that in relation to the third URL, the complexity and cost of the litigation was not proportionate to the potential vindication of the plaintiff's reputation viz a viz the one person who viewed the URL.[42] Her Honour also noted that the plaintiff had acknowledged that if successful he would be unable to enforce any award of damages against Google.[43]
43 Bleyer does not support Google's primary contention that in no circumstance, prior to or post-notification, can it be a publisher. At [85], McCallum J expressly refrained from making a finding that post-notification, Google could not be a publisher.[44] Further, considerations of proportionality which underpin her Honour's judgment were not raised in the proceeding before me. Nor did Google suggest any award of damages in favour of Mr Trkulja would not be enforceable against it.
44 Further, I disagree with her Honour's conclusion that Beach J erred in Trkulja in concluding that '...the performance of the function of the algorithm in that circumstance is capable of establishing liability as a publisher at common law.'[45] The authorities referred to subsequently in this judgment, particularly Webb v Bloch[46] ('Webb'), Thompson v Australian Capital Television Pty Ltd[47] ('Thompson'), Oriental Press Group Ltd v Fevaworks Solutions Pty Ltd[48] ('Fevaworks') and Duffy v Google Inc[49] ('Duffy') support the proposition that the question of whether Google is a publisher is to be determined by reference to its participation in the publication.
45 To conclude that, prior to notification, Google is not a publisher because there is 'no human input in the application of the Google search engine apart from the creation of the algorithm' obscures the significance of the human input involved in the creation of the algorithm. Google employs highly skilled programmers to develop its algorithms. The linking of Mr Trkulja's name with images of members of Melbourne's criminal underworld is no coincidence but a direct consequence of the operation of the search engine in the way in which it was intended to operate. The observations of Callinan J in Dow Jones & Co Inc v Gutnick[50] ('Gutnick') are apposite:
The appellant contends that the Internet is not ``pushed'' into any particular jurisdiction. The contention ignores the commercial and social realities that greater publication produces both greater profit and broader persuasion. Indeed, the appellant's arguments would suggest that all of its objectives were exclusively high-minded. Revenues from increased advertising and circulation, and the word "profit" never passed the appellant's advocate's lips. It may well be that ``firewalls'' to deny access to the unintended or non-subscribing reader are at present perhaps imperfect. So be it. Publishers are not obliged to publish on the Internet. If the potential reach is uncontrollable then the greater the need to exercise care in publication. [51]
46 Google is not obliged to make its search engine results available on the internet. It does so in the pursuit of its commercial objectives. If Google has no control over the results generated by its search engine algorithms then the greater the need for it to exercise care in the development and deployment of those algorithms.
47 There is a considerable body of Australian and international authority which supports the proposition that it is strongly arguable that Google is the publisher of the material which is the subject of Mr Trkulja's allegations.
48 In Webb, the plaintiff was the chairman of the South Australian Wheat Compensation Committee. The four defendants were members of the Victorian Wheat Compensation Committee. The same solicitor, Norman, acted for both Committees. The South Australian Committee abandoned litigation which it controlled. The Victorian Committee wished to carry on the litigation and appealed to South Australian subscribers for funds. Norman was employed by the Victorian Committee to compose, for the purpose of publication, a circular to be sent to each wheat grower. He submitted a draft to Bloch, who was the secretary of the Victorian Committee. Bloch instructed Norman to publish the circular as he saw fit. Bloch's actions were confirmed by the three other defendants. Norman published the circular which contained untrue matters defamatory of the plaintiff. Three of the four defendants were unaware of the contents of the circular at the time of its publication.
49 In reference to Webb, Mr Doyle submitted that the judgment supported the proposition that '... the authority or the intention must relate to, in that case, the liable. So it's to the words, not just the intention to create a mechanism but an intention to communicate the words.'[52] This submission must be rejected. Three defendants in Webb had not read the circular but were liable for publication of the defamatory statements contained therein. The case is not authority for the proposition that liability requires a defendant to intend to communicate specific defamatory words. To the contrary, Webb stands for the proposition that being intentionally involved in the publication of impugned material, even if one has not read the material and therefore can have no intention to publish specific words, is sufficient to attract liability as a publisher.
50 In Webb, Isaacs J stated 'To publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle.'[53] As to the requisite intention, Isaacs J stated that it is sufficient if a defendant '... intentionally lent his assistance' to the existence of the material in dispute 'for the purpose of being published.'[54]
51 Isaacs J stated in respect of the defendants' solicitor, Norman:
His skill and experience, his knowledge acquired while acting as solicitor for Webb as well as others, his legal knowledge, in short, his expert ability and mentality, were enlisted and utilized by the defendants for the very purpose [of composing a circular for the purpose of publication]...On the facts of this case, Norman in law "published" the libel on Webb, even if not he but another had undertaken the actual distribution of the circular: he would still have been one of the principals in relation to Webb.[55]
52 Isaacs J cited with approval the following statement of Giffard QC in Parks v Prescott[56]:
All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication.[57]
53 Referring to the fact that one of the defendants was found liable for defamation even though he had no knowledge of the actual contents of the defamatory circular, Knox CJ stated:
With regard to the defendant Pratt, he is in no better position, although at the time of publication he did not know what was stated in the circular. He chose to accept responsibility for the publication without knowing what it contained, and, as it contained statements which, in my opinion, were not only defamatory but untrue to his knowledge, malice is established against him also.[58]
54 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.
55 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[59] ('Emmens') and Vizetelly v Mudies Select Library ('Vizetelly').[60]
56 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:
It is submitted that it would be more accurate to say that any disseminator of a libel publishes the libel but, if he can establish the defence of innocent dissemination, he will not be responsible for that publication.[61]
57 Although the High Court confirmed the existence of the defence of innocent dissemination, the plurality held that the defendant could not avail itself of that defence because it was not a subordinate publisher:
It is true that Channel 7 did not participate in the production of the original material constituting the program. But Channel 7 had the ability to control and supervise the material it televised. Channel 7's answer is that time did not permit monitoring the content of the program between its receipt at Black Mountain and its telecast from the studios in the Australian Capital Territory. That may well be so but it by no means follows that Channel 7 was merely a conduit for the program and hence a subordinate disseminator. It was Channel 7's decision that the telecast should be near instantaneous, a decision which was understandable given the nature and title of the program but which was still its decision.
Without, at this point, trespassing into the second question, namely, whether the defence of innocent dissemination was made out, the nature of a live to air current affairs program carries a high risk of defamatory statements being made. In those circumstances it would be curious if Channel 7 could claim to be a subordinate disseminator because it adopted the immediacy of the program. It did that for its own purposes, that is, to telecast to viewers in the Australian Capital Territory and adjoining areas. The agreement it made with PBL did not, as we have already observed, oblige Channel 7 to broadcast the program. Pursuant to the agreement Channel 7 acquired a licence "to broadcast by television transmission only" episodes of a current affairs program, "The Today Show". It broadcast for its own purposes, not as agent for PBL or Channel 9, and it "authorised" the broadcast in any meaningful sense that term has sense that term has.[62]
There can be no doubt that Channel 7 authorised the retransmission to its viewers by its servants or agents of the material which was defamatory of the appellant. Without its authority, the material would not have been retransmitted. And it is sufficient that it authorised the retransmission to its viewers of whatever was transmitted by Channel 9 without regard to its contents. Having authorised its retransmission, Channel 7 published the material in question. It cannot rely on the defence of innocent dissemination.[63]
59 Google authorises for its own commercial purposes the publication of its search engine's results on the internet. Its search engine was established and is maintained by its employees. The results generated by its search engines are the result of the operation of the algorithms created by its employees. Even if Google does not intend its search engine to produce results linking Mr Trkulja's image with those of convicted criminals, there is no suggestion that this outcome was anything other than the product of the intended operation of the search engine. Applying the reasoning of the High Court in Thompson, Google's ignorance of the specific material generated in response to any given user query does not prevent it from being found liable as a publisher.
60 A key element of the defence of innocent dissemination is the absence of any intention on the part of a defendant to publish the actual words which constitute an alleged liable. In Thompson, the plurality stated:
It is more than one hundred years since the Court of Appeal in England in Emmens v Pottle (54) held that the vendor of a newspaper is not liable for a libel contained in the newspaper if he can prove that he did not know that it contained a libel; that his ignorance was not due to any negligence on his part; and that he did not know, and had no ground for supposing, that the newspaper was likely to contain libellous matter....[64]
61 The defence of innocent dissemination is part of Australian law. The availability of the defence is contingent upon a subordinate publisher establishing that it had no knowledge of the actual libel it has disseminated. The existence of the defence presupposes that the defendant, notwithstanding absence of knowledge of the material constituting the libel, is a publisher. Google's contention that a search engine proprietor cannot be a publisher because its role is passive seeks to conflate the two discreet issues of:
62 Google's submissions invite the Court to make a finding that, in the case of a search engine proprietor, the distinction set out above has no application. There is no Australian authority which supports this conclusion. The judgment of Beach J is directly to the contrary. So too is the recent judgment of Blue J of the South Australian Supreme Court in Duffy. His Honour stated at [184]:
I reject Google's contention that a defendant can only ever be a publisher if the defendant authorises or accepts responsibility for the publication. Such a test is apposite when the defamatory material is physically attached to the defendant's property without the defendant's knowledge or permission, although in that case a better formulation of the test may be whether the defendant has acquiesced in the defamatory matter remaining on the defendant's property knowing that it will be seen by others. The posited test is not apposite when the defamatory matter is disseminated by the defendant itself and is inconsistent with the innocent dissemination doctrine.
63 In Yeung v Google Inc,[65] Deputy Judge Ng stated:
Indeed, this can be said to be a good arguable case given (a) the distinction drawn in Fevaworks Solutions Ltd between the identification of a "publisher" which is strict (but subject to the defence of innocent dissemination if applicable) and the Byrne principle for turning a non-publisher into a publisher upon knowledge and adoption of the libel, and (b) the Court of Final Appeal's departure from the approach in Tamiz and other overseas authorities that conflated the two concepts. I also bear in mind Beach J's suggestion that the English Court of Appeal in Metropolitan International Schools Ltd did not have the benefit of the argument made to him that Internet search engines, while operating in an automated fashion, did so precisely as intended by those who own them and who provide their services. To this, I add that the English case law must now be viewed through the prism of the reasoning in Fevaworks Solutions Ltd which lends support to such argument.[66]
64 In Fevaworks, the Hong Kong Court of Final Appeal rejected the contention that the provider of an internet discussion platform was not a publisher and therefore could not be held liable for the posting of defamatory statements by its users. Ribeiro PJ cited with approval the statement of Isaacs J in Webb that 'To publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle...'.[67] His Honour noted that until mitigated by the common law defence of innocent dissemination which evolved in the late 19th century, liability for publishing a libel:
...was strict and could lead to harsh results. A person was held liable for publishing a libel if by an act of any description, he could be said to have intentionally assisted in the process of conveying the words bearing the defamatory meaning to a third party, regardless of whether he knew that the article in question contained those words.[68]
...
The strictness of the publication rule plainly called for some relaxation. The common law defence of innocent dissemination was developed to that end. It was a defence which became established in English law as a result of the decisions in Emmens v Pottle in 1886 and Vizetelly v Mudie's Secret Library Ltd in 1900.'[69]
65 In Fevaworks, the court addressed two questions:
66 The Court expressly rejected the contention that successful invocation of the defence resulted in the respondent being deemed not to have published at all:
... 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 not accept that premise...[70]
67 By way of summary and conclusion, Google's primary contention that in no circumstances (either prior to or after notification) can it be a publisher, must be rejected. It is strongly arguable that Google's intentional participation in the communication of the allegedly defamatory results relating to Mr Trkulja to users of its search engine supports a finding that Google published the allegedly defamatory results.
Does Mr Trkulja have a real prospect of establishing that the image search results and the completions are defamatory?
68 Google submits that Mr Trkulja has no real prospect of establishing that the image search results and the completions are defamatory as a matter of law. Mr Doyle submitted that whether the material of which Mr Trkulja complains is defamatory is to be interpreted through the prism of the ordinary, reasonable user of an internet search engine.[71] Mr Doyle submitted that the applicable test is contained in the judgment of Mason J in Mirror Newspapers Ltd v Harrison:[72]
A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition.[73]
What is displayed by a search engine, and utilities that are part of a search engine (such as Autocomplete), are abstract combinations of indicia of the information that is available on the web. Those abstract combinations of indicia are intended to assist the user of the search engine. They do not, however, convey meanings. The underlying documents that have been uploaded on the web convey meanings. The abstract combinations of indicia displayed by a search engine in response to a user's query are highly transformative of that underlying content.
As a matter of law, whatever results are returned by Google Image Search, and however they might be compiled and displayed in the browser of the user who has entered the search query, that user (or even a person looking over the user's shoulder) would never think less of a person, such as the plaintiff, because that person's photograph is included in the search results. The same holds true for snippets and hyperlinks (returned by Google Web Search), and for predictions displayed by Autocomplete.[74]
70 For present purposes, it is necessary for Google to establish that Mr Trkulja has no real prospect of establishing that the images and completions generated by Google's search engine carry the alleged defamatory imputations for which he contends. Whilst Mr Trkulja may ultimately be unsuccessful at trial in establishing that the material in question is defamatory, there is no proper basis for concluding that he has no real prospect of establishing that any of the material he complains of is defamatory.
71 I have referred earlier in this judgment to a compilation of images of Mr Trkulja alongside images of convicted criminals Judith Moran, Matthew Johnson and Tony Mokbel. These images form part of Annexure B to Mr Trkulja's statement of claim and appear under the heading 'Images for Melbourne Underworld Criminals.' It is certainly arguable that a reasonable internet search engine user would look at this compilation of images and assume that Mr Trkulja was also a convicted criminal.
72 Google submits that it is in the public interest that search engines be immune from liability and defamation:
If, contrary to Google Inc.'s submission, the Court should find that it is capable of being a publisher in respect of results returned by the Google Search Engine and for the purposes of the law of defamation, then this Court should find that Google Inc. is entitled to immunity from suit.[75]
73 In addressing the question of whether Google should have the benefit of an immunity from suit, Mr Doyle posed the prescient question '...Your Honour might say well how can you conjure an immunity out of nothing...'.[76] Google's invitation to a trial judge sitting at first instance to conjure an immunity out of nothing must be rejected. The observation of the authors of Gatley on Libel and Slander is apposite:
If Parliament wishes to provide defence for internet intermediaries it should do so, and indeed it has. The importance of promoting certainty in the law should mean, however, that the courts should not create new principles where the old ones are still perfectly serviceable.[77]
74 So too are the observations of Kirby J in Gutnick:
First, a starting point for the consideration of the submission must be an acceptance that the principles of defamation law invoked by the respondent are settled and of long standing. Those principles are:
(1) that damage to reputation is essential for the existence of the tort of defamation;
(2) that mere composition and writing of words is not enough to constitute the tort; those words must be communicated to a third party who comprehends them;
(3) that each time there is such a communication, the plaintiff has a new cause of action; and
(4) that a publisher is liable for publication in a particular jurisdiction where that is the intended or natural and probable consequence of its acts (234).
Where rules such as these are deeply entrenched in the common law and relate to the basic features of the cause of action propounded, their alteration risks taking the judge beyond the proper limits of the judicial function.[78]
75 Applying long standing principles, Google as a search engine operator is capable of being a publisher of the material complained of by Mr Trkulja, both prior to and subsequent to receiving notice from him. If Google is to have immunity from suit, it must be bestowed upon it by the legislature. As was said by Mason J in State Government Insurance Commission v Trigwell:[79]
The court is neither a legislature nor a law reform agency. Its responsibility is to decide cases by applying the law to the facts as found.[80]
76 Division 2 of Part 4 of the Defamation Act 2005 prescribes an entire division devoted to statutory defences to defamation actions. Parliament's willingness to prescribe these statutory defences militates heavily against the introduction of an internet search engine immunity into the common law of Australia.[81]
77 The submissions advanced on behalf of Google fall well short of establishing that Mr Trkulja has no real prospect of establishing at trial that Google is a publisher and/or that any of the material about which he complains is defamatory. Google's invitation to the Court to confer an immunity out of thin air is rejected. The application to set aside service of the writ and amended statement of claim is dismissed. I shall order that any appearance and a defence to the amended statement of claim is to be filed within 3 weeks of the date of this judgment, failing which Mr Trkulja will be entitled to take whatever steps are available to him under the Rules.
[1] Transcript of Proceedings, Trkulja v Google (Supreme Court of Victoria, S CI 2013 6264, McDonald J, 13 August 2015) T4 LL2-6.
[4] Ibid [58]; See also Madden International v Lew Footwear Holdings Pty Ltd [2015] VSCA 90, [25].
[5] See De Saram v Brown [2015] VSCA 142, [44] (Digby AJA, Ashley and Tate JJA agreeing); Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] 42 VR 27, [35] (Warren CJ and Nettle JA).
[6] Transcript of Proceedings, Trkulja v Google (Supreme Court of Victoria, S CI 2013 6264, McDonald J, 13 August 2015) T10 L29 - T11 L4.
[10] Dr Matthew Collins, The Law of Defamation and the Internet (Oxford University Press, 3rd ed, 2010) 116-118 [6.48]-[6.50]; Alastair Mullis and Richard Parkes (eds), Gatley on Libel and Slander, (Thomson Reuters, 12th ed, 2013) 224 - 226.
[11] Trkulja v Google (No.5) 2012 VSC 533, [27]; See also Yeung v Google Inc [2014] HKCFI 1404; [2014] 4 HKLRD 493, [105].
[12] The plaintiff's amended statement of claim dated 20 June 2015, [26].
[14] Transcript of Proceedings, Trkulja v Google (Supreme Court of Victoria, S CI 2013 6264, McDonald J, 13 August 2015) T16 LL20-22.
[15] Submissions of Google dated 22 April 2015, [1].
[16] Transcript of Proceedings, Trkulja v Google (Supreme Court of Victoria, S CI 2013 6264, McDonald J, 13 August 2015) T10 LL1-3.
[17] Submissions of Google dated 22 April 2015, [24] - [25] and [29] - [31] (citation omitted).
[18] Holloway v Department of Human Services & ors [2015] VSC 184, [1] and the authorities cited therein.
[19] Transcript of Proceedings, Trkulja v Google (Supreme Court of Victoria, S CI 2013 6264, McDonald J, 13 August 2015) T5 LL22-25.
[20] Trkulja v Google (No.5) [2012] VSC 533, [1] - [7] (citation omitted).
[22] Ibid [18] - [19] and [28] - [31] (citation omitted).
[25] Submissions of Google Inc on Issue Estoppel dated 17 August 2015, [23].
[26] [2012] EWHC 449 and [2013] EWCA Civ 68.
[28] Submissions of Google dated 22 April 2015, [24].
[29] Bunt v Tilley [2006] EWHC 407; [2007] 1 WLR 1243, [37].
[30] Metropolitan International Schools Ltd v Designtechnica Corporation & Ors [2010] 3 All ER 548, [50] - [51] and [64].
[31] Tamiz v Google Inc [2012] EWHC 449, [38] - [39].
[32] Tamiz v Google Inc [2013] EWCA Civ 68; [2013] 1 WLR 2151, [23].
[38] Tamiz v Google [2012] EWHC 449, [36].
[39] Bleyer v Google Inc LLC (2014) 300 ALR 529, [83].
[44] Cf Duffy v Google Inc [2015] SASC 170, [209].
[52] Transcript of Proceedings, Trkulja v Google (Supreme Court of Victoria, S CI 2013 6264, McDonald J, 13 August 2015) T46 LL15-18.
[53] Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331, 363 (citation omitted).
[57] Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331, 364.
[60] [1900] 2 QB 170; See also Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574, 595 - 596.
[61] Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574, 586.
[67] Oriental Press Group Ltd v Fevaworks Solutions Pty Ltd [2013] HKCFA 47; (2013) 16 HKCFAR 366, [17] (citation omitted).
[70] Ibid [52] - [53] (citation omitted).
[71] Transcript of Proceedings, Trkulja v Google (Supreme Court of Victoria, S CI 2013 6264, McDonald J, 13 August 2015) T116 LL22-25.
[74] Submissions of Google dated 22 April 2015, [48] and [50] (citation omitted).
[76] Transcript of Proceedings, Trkulja v Google (Supreme Court of Victoria, S CI 2013 6264, McDonald J, 13 August 2015) T133 LL22-23.
[77] Mullis and Parkes, above n 10, 6.30.
[78] Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, [124].
[79] [1979] HCA 40; (1979) 142 CLR 617, 633.
[80] Ibid; See also McCloy v New South Wales [2015] HCA 34, [90]; R v Young [1999] NSWCCA 166; [1999] 46 NSWLR 681, [92] - [102]; Breen v Williams (1994) 35 NSWLR 522, 557-558 (Mahoney JA).
[81] Cf R v Young [1999] 46 NSWLR, [105] (Spigelman CJ) and [229] (Abadee and Barr JJ).
Trkulja
Google Inc [2015] VSC 635
(2000) 201 CLR 552
(1939) 62 CLR 464
(2014) 300 ALR 529
(1928) 41 CLR 331
(1996) 186 CLR 574
(2002) 210 CLR 575
(1982) 149 CLR 293
(1979) 142 CLR 617
(1994) 35 NSWLR 522