5 Mar 2019

Written by Daniel Morris, Special Counsel, Commercial Litigation

In June 2018, we reported on the case of Michael Trkulja — the man who sued Google Inc for defamation. To recap, the High Court had overturned a decision by the Victorian Court of Appeal to dismiss Mr Trkulja’s case without a trial on the basis that he had not pleaded a tenable claim against Google. Whilst agreeing with the Court of Appeal that Mr Trkulja’s pleadings were flawed, the High Court declined to dismiss the claim outright and instead gave Mr Trkulja an opportunity to redraft his pleadings.

Mr Trkulja has now redrafted his pleadings in the Victorian Supreme Court. However, the Victorian Supreme Court is still not satisfied with the state of his pleadings — describing them as  ‘unnecessarily confusing and imprecise’.

The Court found that Mr Trkulja’s pleadings did not clearly allege ‘publication,’ which is an essential element of defamation claims. The Court required Mr Trkulja’s pleadings to clearly articulate the connection between ‘the search terms used to identify the material generated by the Google search engine and the search terms used by the persons who downloaded material off the internet as a necessary step in the course of the publication’.

This most recent development in Mr Trkulja’s legal battle against Google Inc has highlighted some of the difficulties that a plaintiff is likely to face when taking action in defamation against a search engine provider like Google Inc. Those difficulties will typically exist where a defendant like Google Inc has neither produced the defamatory material nor actively set out to publish it, as opposed to simply making it accessible to the public as a result of an online search. At the very least, the pleading in such cases will need to identify specifically, the search terms used by each individual alleged to have viewed the material, and the dates when the specified search terms were used in each instance. That is even before the plaintiff proceeds to state the facts that would make the offending material defamatory as a matter of law.

In Mr Trkulja’s case, the Court rejected the argument that requiring such amendments to his pleadings would impose an intolerable burden upon him, finding to the contrary, that permitting imprecise pleadings to stand would likely ‘prejudice, embarrass or delay the fair trial of the proceeding’.

The Court has given Mr Trkulja another 21 days to submit to Google a proposed further amended statement of claim. We will continue to keep our readers updated.