Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Contracts Expression
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The High Court of Australia found Google liable for defamation for certain search results appearing in Google searches. Google images displayed pictures of Mr. Trkulja along with various convicted criminals as the search result of the phrases, “Melbourne criminals” and “Melbourne criminal underworld figure,” and further, auto-complete predictions on Google for “michael trk” displayed phrases such as “michael trkulja criminal.” On the basis of these, Mr. Trkulja alleged that Google published defamatory images between 1 December 2012 and 3 March 2014 to persons in Victoria. The High Court disagreed with the ruling of the Court of Appeal and found Google to be the publisher. Further, the High Court found the material published to be capable of being defamatory, since some search results could have caused defamatory imputations in the mind of ordinary reasonable viewers.
Mr. Trkulja wrote a letter to Google, demanding the removal of certain web and image results and auto-complete search predictions. Google images displayed pictures of Mr. Trkulja along with various convicted criminals as the search result of the phrases, “melbourne criminals”, “melbourne criminal underworld figure”, etc. Even the web search results of the pages displayed posts on similar lines along with his image. Further, auto-complete predictions on Google for “michael trk” displayed phrases such as “michael trkulja criminal”, “michael trkulja melbourne crime”, etc. Google removed certain material, without admission, and blocked certain auto-correct predictions. However, Google declined to remove the images which appeared in response to the image searches.
Mr. Trkulja alleged that the image matter and web matter are defamatory in their natural and ordinary meaning and will lead to defamatory imputations that he is a hardened and serious criminal in Melbourne, in the same league as various convicted murderers and with connections to the underworld [para. 13]. Accordingly, Mr. Trkulja prayed for damages on the basis of Google’s knowledge of false imputations and refusal to accept any responsibility for the alleged defamatory publications and also for an injunction against Google [para. 17].
Google applied for summary dismissal on three grounds: (1) that Google was not the publisher; (2) that the matters were not defamatory in nature; and (3) that Google, as a subordinate distributor, was entitled to immunity from the suit under Section 32 of the Defamation Act 2005 (Victoria). It should be noted that Section 63 of the Civil Procedure Act 2010 (Victoria) provides that a court may allow summary dismissal, if the plaintiff’s claim “has no real prospects of success.”
In the proceeding at first instance, the primary judge rejected the contention of Google that the proceeding has no real prospect of success, finding Google to be the publisher and that a reasonable search engine user would assume Mr. Trkulja to be a convicted criminal based on the matter published. Further, the primary judge held that the immunity would not be available to Google since the defenses under the Defamation Act 2005 “militate heavily against the development of a common law search engine proprietor immunity.” [paras. 24-27]
The Court of Appeal of the Supreme Court of Victoria reversed the ruling. It found unnecessary to decide the first ground and rejected the third one. It was the second ground on the basis on which it was held that the proceeding has no real prospects of success. Although the Court of Appeal decided not to look into the first issue, it made a determinative finding of mixed fact and law. It stated that Google is the publisher of the results, including auto-correct predictions, but the publications will be considered as innocent dissemination until official notification of the alleged defamation. [para. 38] With regard to the second issue, the Court of Appeal based its decision on the consideration that all image searches should be seen as one single composite publication and web searches as another single publication, which would be known to an ordinary reasonable search engine user. [para. 43] Further, the defamatory material was to be looked at in a context which comprised the world wide web. [para. 44] It was therefore assumed that the user would know the enormous scale of the search could not have been done manually, merely on the basis of extremely good speed with which the results were generated. [para. 45] Additionally, the image search results show images of various actors, a Chief Commissioner of Police and solicitors, other than images of criminals. The Court of Appeal also relied on Google Inc v. Australian Competition and Consumer Commission [Google v. ACCC,  HCA 1] to support its finding on the knowledge attributed to an ordinary reasonable user of search engine. On the basis of Google’s affidavit, it was found that auto-complete predictions are majorly influenced by the user’s previous searches. Based on the above findings, it was held that the web and image matter did not convey any defamatory imputations. It was also observed that if a contrary conclusion is adopted, “the list of persons potentially defamed would be both large and diverse” and that such conclusion would not be sound. [para. 47]
Chief Justice Susan Kiefel delivered the judgment for a five-judge bench of the High Court of Australia.
The underlying issue was whether the Court of Appeal was right in reversing the order of the primary judge and holding that the defamation proceeding by Mr. Trkulja against Google, for various image and web search results, has no real prospect of success.
The High Court summarised the test for defamation. It stated that a matter is capable of being defamatory depending on the what an ordinary reasonable person would understand from it. Further, people have different temperaments and outlooks, education and life experiences. Accordingly, the attempt should be made to find a midpoint of the abilities to decide the most damaging meaning that may be imputed by the ordinary reasonable person upon considering the publication. Implications by such a person are drawn much more freely than by a lawyer. [para. 31]
The High Court rejected the conclusions reached by the Court of Appeal. With regard to Google’s role as a publisher, the High Court observed that the nature and extent of Google’s involvement in compilation and publication of its search results is not certain until after discovery, when all the evidence has been collected. [para. 39] Further, it agreed with the conclusions reached by the primary judge that Google’s intentional participation in the communication of the allegedly defamatory results to its users supports a finding that Google published the result. [para. 38] The High Court also considered “all degrees of participation in the publication” as publication. [para. 40]
With regard to the capacity of a published matter to defame, the High Court found the Court of Appeal to have judged the issue according to what “the court may think the allegedly defamatory words or images say or depict rather than what a jury could reasonably think they convey.” [para. 52] The High Court also observed that the Court of Appeal erred in relying on Google v. ACCC, since the case was concerned with sponsored links and misleading and deceptive conduct in relation to the content of sponsored links, contrary to the case at hand. [para. 59] The High Court observed that it was to be assumed that a user of the search engine would contemplate the connection between the phrase searched for and the contents of the result displayed. Although it was admitted that the search result also contains images of actors, the Chief Commissioner of Police and solicitors, the High Court observed that the identity of Mr. Trkulja is relatively unknown. Consequently, an ordinary reasonable person using the Google search engine would connect such unknown person with criminality. [para. 61] The High Court also disagreed with the findings of the Court of Appeal concerning auto-complete predictions, since, at least some of the predictions conveyed alleged defamatory imputations to an ordinary user. The High Court agreed with the Court of Appeal’s observation that the conclusion may result in a large and diverse list of potentially defamed persons. However, the High Court did not consider the conclusion to be unsound. It would merely mean that the search engines’ proprietors would try to bring themselves within the defense of innocent dissemination rather than the capacity of the matter published to defame. [para. 63]
Consequently, the High Court allowed the appeal and the conclusions reached by the Court of Appeal were set aside. Google was ordered to pay Mr. Trkulja’s costs of the appeal to the High Court.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case saw conflict between freedom of expression and one’s right to protect his/her reputation. Clearly, the expression was constrained in this case to protect one’s reputation. In the present case, freedom of expression was curtailed in digital spaces, placing a limit on search engines regarding the publishable matter.
The ruling will significantly impact Google’s operations in Australia as the ruling established that Google is responsible as a publisher for potentially defamatory search results and autocomplete search predictions. Any future actions arising from defamation claims will need to be heard at trial and will require extensive discovery on behalf of Google.
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