Search engine rankings are largely the result of mathematical algorithms and repetitive bots which crawl the Internet. Search engines have historically enjoyed considerable immunity from defamation and libel claims, given that they present themselves as automated organizers of information and not publishers of the information itself. That may change soon, especially where the statements are false and the plaintiff contacts the search engine requesting that the results be modified or removed.
The Supreme Court of Victoria in Australia has ordered Google and Yahoo to pay damages for failing to modify their search results. Michael Trkulja, a prominent member of the Yugoslav community in Australia and a music promoter, sued both search engines for their failure to remove search results which suggested he was a prominent member of the Melbourne underworld. Image searches for “Melbourne Crime” also provided a picture of the plaintiff, which he claimed was defamatory.
Earlier this year, the court ordered Yahoo! to pay (Aus) $225,000 Trkulja v Yahoo! Inc. The case against Yahoo was considered the first and substantial blow against the plaintiff’s reputation, and the publication and grapevine effect was likely greater than with Google. Justice Kaye commented on the widespread effect of the material:
36 …the plaintiff is a man, who has a widespread reputation in the Yugoslav community throughout Victoria, and, indeed, throughout Australia. Mr Dibb was correct in pointing out that I would be entitled to take into account, as a matter of judicial notice, that the use of the internet, to ascertain information about particular people, is now commonplace. Indeed, those searches have entered the everyday lexicon of the community, and the process, of undertaking such a search, is commonly referred to as “to google”. Further, as Mr Dibb also pointed out, the people, to whom the defendants published the article, would have used the defendants’ search engine specifically to obtain information about the plaintiff. In that way, the article was particularly damaging to the reputation of the plaintiff among those persons who read it.
37 …It is not necessary for me to decide whether the same proposition applies to the phenomenon known as the “grapevine”, or “poison spreading”, in defamation proceedings, where the plaintiff’s claim is based on the direct publication of the material by the defendants. In this case, I am satisfied, on the evidence, that the allegations contained in the article, published by the defendants, reached a wide audience, and thus, the damage to the plaintiff’s reputation has been widespread. The plaintiff’s evidence, as to the reactions to him by other people, is testament to the breadth of the damage caused to his reputation by the publication, by the defendants, of the article…
Last month, the court ordered an additional $200,000 for the plaintiff for his action against Google in Trkulja v Google Inc LLC & Anor. Although the parties debated the relative popularity of Google and Yahoo search engines, no evidence was lead about the number of publications brought about by either.
The Google lawsuit was filed in 2009, and had a number of interlocutory applications, as follows. In Trkulja v Google Inc LLC & Anor  VSC 226 (27 May 2010), the judge struck certain parts of the the pleading and provided leave to amend.
A summary judgment application was brought by Google in Trkulja v Google Inc & Anor (No 2)  VSC 490 – (28 October 2010) after the plaintiff’s fourth amendment to the pleadings, but the summary judgment was abandoned and the proceedings focused again on the sufficiency of the pleadings. Considerable discussion over the distinction between publishers and search engines, and whether the content was a primary or secondary publication, the latter referring to a third-party website. The plaintiff claimed there was no third-parties involved in the claim, and focused instead on the search results alone. The plaintiff was ordered to provide further and better particulars of their allegations.
A dispute over discovery occurred in Trkulja v Google Inc & Anor (No 3)  VSC 503 (5 October 2011), where the plaintiff claimed access to documents which the defendant indicated were confidential and irrelevant to the proceedings. The judge concluded that the documents could properly be redacted, and that the redacted portions had no relevance.
In the trial judgement released on November 12, 2012, Trkulja v Google Inc LLC & Anor (No 5)  VSC 533, a jury considered whether the material was defamatory under Section 22(3) of Australia’s Defamation Act. The jury found that the search results were defamatory on the basis of false innuendo and as true innuendo over an image that suggested the plaintiff was a target of organized crime. The jury did not find liability for the text search results because the Google could rely on the statutory defence of innocent dissemination.
Despite the jury finding, Google proceeded with a non-obstante application that they were not liable because they were not a publisher of the images, relying on cases from the UK, Metropolitan Schools Ltd v Designtechnica Corp’n  1 WLR 1743; Webb v Bloch  HCA 50; Tamiz v Google Inc  EWHC 449; and Bunt v Tilley  EWHC 407, as well as the Canadian Supreme Court decision in Crookes v Newton  3 SCR 269.
Google plead that the plaintiff needed to prove they were an accessory to the communication, and that they had a mental element to intentionally publish the image.
Under Australian law the plaintiff had to demonstrate the defendant had accepted responsibility for the publication through consented, approval, adoption, promotion, or ratification. Although the Google algorithm provides automated results, the plaintiff claimed that the automation reflected the intent of the defendant, and alternatively they failed to remove the results on notice by the plaintiff’s lawyer on September 22, 2009, which stated:
“We are litigation counsel for Mr Michael Trkulja (‘our client’).
We are writing with respect to certain photographs, images and text that is accessible by typing in our client’s full name Michael Trkulja into the Google Images Search Engine (‘the material’). We enclose for your reference a copy of the material.
In particular, we note that the image circled in the enclosure to this demand letter is of worldwide well known criminal Tony Mokbel. You will note that the text to that photograph refers to our client directly Michael Trkulja . Immediately adjacent to that photo is a photograph of a well known ex-Victoria policeman Dennis Tanner also accompanied by a text reference to our client. The material is viewable by anyone worldwide who searches our client’s name directly and/or anyone with the appropriate URL address and/or anyone who has previously bookmarked those web pages. As at the date of this letter, the material remains viewable.
It goes without saying that the material is grossly defamatory of our client and conveys the imputation to members of the general public that our client is a criminal and a member of Melbourne’s criminal underworld, which is malicious and without any factual basis whatsoever.
Accordingly, we demand that by 4.00 pm 28 September 2009 you immediately remove the material resulting from search results returned against our client Michael Trkulja and as well [and other demands were made].”
[annotations and edits in the original decision]
On October 10, 2009, Google responded to this letter as follows:
“At this time, Google has decided not to take action based on our policies concerning content removal. Please contact the webmaster of the page in question to have your client’s name removed from the page.”
After considering the submissions by the parties over the question of whether Google was a publisher, Justice Beach said,
18 The question of whether or not Google Inc was a publisher is a matter of mixed fact and law. In my view, it was open to the jury to find the facts in this proceeding in such a way as to entitle the jury to conclude that Google Inc was a publisher even before it had any notice from anybody acting on behalf of the plaintiff. The jury were entitled to conclude that Google Inc intended to publish the material that its automated systems produced, because that was what they were designed to do upon a search request being typed into one of Google Inc ’s search products. In that sense, Google Inc is like the newsagent that sells a newspaper containing a defamatory article. While there might be no specific intention to publish defamatory material, there is a relevant intention by the newsagent to publish the newspaper for the purposes of the law of defamation.
19 By parity of reasoning, those who operate libraries have sometimes been held to be publishers for the purposes of defamation law. That said, newsagents, librarians and the like usually avoid liability for defamation because of their ability to avail themselves of the defence of innocent dissemination (a defence which Google Inc was able to avail itself of for publications of the images matter prior to 11 October 2009, and all of the publications of the web matter that were the subject of this proceeding).
Justice Beach noted that the Google Image search result was a cut and paste of its own creation. If Google’s submissions were to be accepted, there would be no original publisher of the images at all. In obiter, Justice Beach indicated that the text snippets of the text results were not dissimilar. He emphasized the fact specific nature of this analysis, and distinguished this case from the others cited. Google could not claim to be an internet intermediary here, and played a less passive role,
31 …The question is whether, after relevant notice, the failure of an entity with the power to stop publication and which fails to stop publication after a reasonable time, is capable of leading to an inference that that entity consents to the publication. Such an inference is clearly capable of being drawn in the right circumstances (including the circumstances of this case). Further, if that inference is drawn then the trier of fact is entitled (but not bound) to conclude that the relevant entity is a publisher. Google Inc ’s submission on this issue must be rejected for a number of reasons, the least of which is that it understates the ways in which a person may be held liable as a publisher.
Justice Beach rejected Google’s defence of innocent dissemination because they were unable to establish that they did not know the matter was defamatory, or that they reasonably ought to have known and the lack of knowledge was not do to negligence.
The plaintiff’s claims for aggravated damages were rejected, because Google did have legitimate legal issues to raise with the web text results that they wanted to advance. Justice Beach acknowledged that the plaintiff had already received damages from Yahoo, which provided some mitigation for damages under the Act, but awarded compensatory damages for vindication of the plaintiff’s reputation, reparation of harm, and “consolation for the distress, upset and injury to the plaintiff’s feelings occasioned by the publication.”
The maximum damages for non-economic loss under Part 4, Division 3 of the Defamation Act is is $339,000. Justice Beach found the appropriate damages here was $200,000 because it was important to vindicate the plaintiff.
Barry Sookman, who also commented on this case, has stated,
As a matter of general principle, a person that automates a process using a computer to carry out an intended purpose is responsible in law for the acts carried out by his or her tool. Liability is not avoided by automating the actions in question…
Despite this general rule, courts have struggled with questions involving making owners of programmed systems responsible for damages suffered by third parties as a result of their use, in many cases due to policy concerns about imposing such liability… there is a significant difference between an entity that makes copies at the request of an individual and an entity that uses pre-programmed computers to carry out the request automatically…
As the court noted here, the defamation analysis against search engines is fact specific, and this case was decided within the statutory definitions of Australia’s Defamation Act. Specifically, the defence of innocent dissemination is spelled out in statute under Section 32(1).
Sookman points out that the Supreme Court of Canada also discussed the defence of innocent disseminator in Crooks. However, it does not exist as a statutory defence in Canada. Justice Wright stated in Menear v. Miguna, where a summary judgement motion was granted to dismiss a defamation claim on the basis that the statements in a book could not be libellous by UofT Press because they were unaware of the statements,
 The thrust of the applicant’s argument is that previous cases, which held printers liable for the contents of the material they printed, were based on the fact that in earlier times printers necessarily had contact with the subject material. U. of T. Press argues that, today, modern printing methods do not require printers to read the material or to check its content in any way prior to printing. It suggests that the court should acknowledge this changing technology and its limiting effect on the responsibilities and duties of a contract printer…
Should the changing technology of the Internet and modern publication methods affect the effect of responsibilities and duties on search engines as well? Canadian courts have yet to find out. In an interview with CBC this past week over the Alan Muliyil case, I pointed out that the remedies where the search content is accurate (i.e. an arrest occurred, not a conviction), the recourse is limited. But what if the Image Search is more suggestive, as in Trkulja, and leads to defamation by innuendo?
The Trkulja has been appealed, but is a case to watch because it could open up a new line of inquiry against search engines.