By Simon Abraham

19 June 2018

How would you feel if you googled your name and the search results suggested you were a criminal?

For many years, Google has claimed that its search engine has no capacity to defame. Effectively, Google has argued that it is a mere bystander in distributing information created by others rather than the publisher or the originator of defamatory material.

In many ways, Google’s market position and capacity to catalogue information gives it more power than governments and less accountability. For instance, a subpoena sent to Google Australia to access Gmail account records would likely see Google Australia advise that is has no legal ability to cause its parent company (based in California) to hand over any information without an order from a US Court. The view that many of Google’s activities cannot be regulated by Australian law may even be correct.

Google’s hubris came to an end last week in the High Court of Australia in a most unlikely way. Michael Trkulja claimed that Google had defamed him by publishing search results that conveyed the impression that he was connected to the Melbourne criminal underworld. The Supreme Court initially dismissed an attempt by Google to knock out Mr Trkulja’s case. Not to be deterred, Google engaged an army of QCs and headed to the Court of Appeal where they persuaded the Court of Appeal that Mr Trkulja could not possibly succeed in demonstrating that search results linking him to underworld figures could have a defamatory imputation.

Mr Trkulja then appealed to the High Court and, like the biblical David and Goliath battle, David won. The High Court in Trkulja v Google LLC [2018] HCA 55 held that some of the search results on Google suggesting that Mr Trkulja was associated with criminals (including autocomplete predictions) had the capacity to be defamatory.

Whilst Google has yet to metamorphosise from a search engine to a traditional media publication, the law in Australia has now shown that search engine results can convey defamatory imputations.

Is the case over? Of course not. Mr Trkulja now has to go back and show that the relevant search engine results were, in fact, defamatory and make out a damages claim.

For everyone else, the law is now clearer. Google is now accountable for potential defamatory imputations raised by its search results in Australia.

If you require advice or representation in relation to issues surrounding Privacy Law, Data, IT & Technology, please do not hesitate to contact Simon Abraham or a member of our Litigation & Dispute Resolution team.

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