Can you sue Google for defamation?

Mr Milorad Trkulja, also known as Michael Trkulja, brought a defamation action against Google arising out of publication of alleged defamatory material after his demands to remove the alleged defamatory images and block the name of Milorad Trkulja and Michael Trkulja were declined by Google.

Mr Trkulja asserted that Google had defamed him by displaying search results which conveyed imputations that he was a hardened and serious criminal in Melbourne associated with multiple notorious criminal figures.

In particular, Mr Trkulja’s concerns involved search results such as:

  • Displaying images of him mixed with notorious criminal figures such as Tony Mokbel, Carl Williams and Andrew ‘Benji’ Veniamin, accompanied by phrases including “melbourne criminals” and “melbourne underworld killings”.

It should be noted that these three characters were prominent Victorian criminals or gangsters who had all been brought to notoriety by the television program “Underbelly”;

  • Results of Google’s autocomplete predictions, which produced results such as “michael trkulja criminal” “michael trkulja underworld” “michael trkulja Melbourne criminal” when prompted with “michael trk”;
  • Several other allegedly defamatory articles and websites.

Mr Trkulja’s case hinged upon the fact that he had requested Google to make changes that would mean that a search result would not generate the images and text that concerned him.

In defence of the claim, Google raised the defence of innocent dissemination: that it was merely a subordinate distributor of the material, and had no authority or knowledge of it (section 32, Defamation Act 2005 (VIC), equivalent to section 32 Defamation Act 2005 (NSW)). However, it was concluded that the search results “[were pages] of Google Inc’s creation”, and because Google failed to respond to the original complaints sent to it by Mr Trkulja, it could not rely on the defence.

The trial judge held that Google was capable of being a publisher, the search results could be defamatory and no immunity for a search engine provider can be granted by the courts.

Google then appealed to the Court of Appeal of the Supreme Court of Victoria, which held that Google did not publish the material complained of, and the search results were not found to be defamatory and there was immunity for a search engine provider from a claim such as this one.

In its approach, the Court of Appeal definitively stated that search engines like Google could rely on the defence of innocent dissemination until the time defamation was complained of.

Mr Trkulja appealed to the High Court, and on 13 June 2018, the High Court allowed his appeal. The High Court held that the Court of Appeal was wrong. Google was a publisher, and moreover, that the search results could be defamatory as Mr Trkulja’s identity to a reasonable user of Google was not obviously innocent, and was likely to be perceived in the contrary.

It also found that the defence of innocent dissemination was not always available to, nor protective of, search engines such as Google. The matter has now been returned to the Supreme Court of Victoria for Mr Trkulja to run his defamation trial.

Enquiries about suing Google

This case is one of great significance. Solicitors who practice in the defamation area, such as Turner Freeman frequently receive complaints about matters that are alleged to be defamatory, and cannot identify the publisher of that material, when it appears on an internet search.

Because the person who placed the material on the net, or caused it to be placed on the net, such that it would be read and comprehended in a certain way cannot be identified, Google is a likely defendant. Until this decision there was no definitive view as to whether Google was a publisher.

It is important for people who have this problem to make contact with Google and write a complaint to Google about the material over a period of time in an effort it get Google to take it down.