Can you sue Google?
By Amien Hoosain
Milorad Trkulja v Google LLC, a decision of the High Court of Australia (the apex Court) on 13 June 2018, considered the prospects of success of a defamation claim brought against Google.
In his statement of claim, Mr Trkulja averred that Google had defamed him by:
- – including images of convicted criminals in search results for images of him;
- – including references to him in search results for searches such as “Melbourne underworld criminals”; and
- – including phrases such as “criminal” and “underworld” in its autocomplete function when his name was typed into the Google search engine,
and thereby imputing that he was a hardened and serious criminal, an associate of convicted criminals, and a significant figure of the Melbourne criminal underworld.
In terms of the applicable rules of civil procedure, a defendant (Google) in such proceedings is entitled to apply for the dismissal of the claim on the basis that it had no real prospect of success. And Google launched such an application, on the basis that:
- – the matter in question was not defamatory of Trkulja;
- – it was not the publisher of the offending matter; and
- – as a search engine proprietor it was entitled to immunity (the defence of innocent dissemination).
Google’s application was dismissed in the Court of first instance. Google appealed, with success. And Trkulja then appealed to the High Court.
The High Court held that:
- – The matter in question has the capacity to be defamatory of Trkulja.
- – Absent actual evidence, it cannot be assumed that the nature and extent of Google’s involvement in the compilation and publication of its search engine results does not constitute publication by Google.
- – It is arguable that the common law ought not to be developed to provide for search engine proprietor immunity.
So Trkulja won this first skirmish. He is now entitled to proceed to trial with his defamation claim against Google.
In a similar case in South Africa, a search engine proprietor may perhaps succeed with a defence under the Electronic Communications and Transactions Act 25 of 2002. But it would depend on the specific facts, including the conduct of the search engine proprietor once notified of the defamatory material.