29 Jun 2018

Precedent only a possibility for Melbourne man suing Google for defamation

After a six year, David-and-Goliath battle, Milorad ‘Michael’ Trkulja has been given the green-light to sue Google for defamation. The case hinges on the search engine’s image-search results and autocomplete predictions, which incorrectly linked Michael to convicted felons from Melbourne’s Underworld.

 Once leave to bring the action was granted, questions were asked in the media and profession as to what precedent this decision set. The short answer is none. The High Court only ruled on the potential for defamation, directing the parties to the Victorian Supreme Court for trial. There, questions could be raised on whether Google is a primary or secondary publisher, as well as what responsibilities social media and search platforms have in safeguarding reputations.

 Google has in the past been held responsible when its search results link to defamatory content; in a verdict delivered three years ago, the South Australian Supreme Court found that once Google was alerted to the defamatory material, it was then under an obligation to censor its search results and prevent further harm to the plaintiff’s reputation.

 Michael’s claim represents another step in clarifying search platform accountability – should he succeed, Google will be liable for providing access to defamatory content through its Google Search algorithms. As this indexing is done via web-crawlers, Google’s defence may then rest on innocent dissemination – the unwitting publishing of defamatory material by a search engine with no legal responsibility to check content.

 The potential reach of defamation law will continue expanding alongside the ever-growing digital landscape. Meanwhile, three things are certain. First, Australian courts will carry on demonstrating a willingness to consider cases involving online and social media platforms. Second, judges will remain inclined to award significant damages to successful plaintiffs defamed in these settings.

 And, finally, lawyers and legal analysists across Australia will be watching the trial intently; curious to see whether or not a precedent is set.

MURRAY THORNHILL

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