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.
CASE UPDATE – 14 June 2019
Trkulja v Google LLC: David v Goliath Rages On
In March 2019 and June 2018, we published updates on the ongoing saga of Michael Trkulja, in his litigation against Google Inc for defamation. By way of background, Mr Trkulja is alleging Google defamed him when he appeared in some searches regarding some Melbourne underworld figures between 2012 and 2014. Google originally applied to have Mr Trkulja’s claim set aside on the basis that he had not pleaded a tenable claim against them. This application was dismissed, a decision which was then overturned on appeal and summary judgment entered against Google. Mr Trkulja appealed to the High Court, who overturned the appeal decision, set aside the summary judgment and gave Mr Trkulja an opportunity to redraft his pleadings.
Recently, the Victorian Supreme Court has handed down the latest development in this ongoing legal battle. The Court was quite critical of the way Mr Trkulja has pleaded his claim, describing his pleadings as “unnecessarily confusing and imprecise”. Although the claim was not dismissed entirely, there are a number of substantial changes required to be made to his pleadings if the matter is to proceed to trial. Not only were their substantial issues with the pleadings but Mr Trkulja also apparently omitted a number of details in his allegations about the alleged defamatory searches, including dates and search terms used.
Although there was no major determination as to whether Mr Trkulja’s claim will ultimately be successful, there were still a number of pertinent points to note in this most recent published decision.
The decision acknowledges the uncertainty of publication by a search engine compared to traditional publication by a printed media. In printed media, the “final product retains a constant form”, whereas with a Google search, what is published on each occasion of each search is a unique collection of digital images appearing on a computer screen. There is uncertainty about whether the Google Images are comprised of “multiple single publications or a composite publication”. Unfortunately in this case, the plaintiff apparently does not make any clear submissions on the point. The decision also acknowledges that there is a clear distinction between alleged defamatory material that remained accessible on the internet and visible by way of a Google search, and material that was actually downloaded by conducting a Google search.
The apparent financial standing of the defendant compared with that of the plaintiff was also noted, and for this reason, the John Dixon J noted that the Court had provided “several indulgencies”. However, he goes on to note ominously that “the court’s patience in providing opportunities for a claim to be property articulated is not unlimited”.
We are curious to see what happens next in this saga. Based on the comments of John Dixon J in this latest published decision, it appears that the Court is losing patience with Mr Trkulja and the way he has pleaded his claim. Whilst a summary dismissal of Mr Trkulja’s claim caused by the inadequacies of his pleadings would be an unsatisfying end to the narrative
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