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Download Google Inc V Trkulja (2016) 342 ALR 504.Pdf 504 GOOGLE INC v TRKULJA (aka TRKULJA) SUPREME COURT OF VICTORIA — COURT OF APPEAL 5 ASHLEY,FERGUSON and MCLEISH JJA 7 October, 20 December 2016 — Melbourne [2016] VSCA 333 10 Defamation — Publication — Production of search results by internet search engine — Search engine operator not liable as primary publisher of search results — Search engine operator liable as secondary publisher of search results — Innocent dissemination defence likely maintainable in period before notification of alleged 15 defamation. Defamation — Defences — Immunity of search engine operator for publication of search results — No immunity at common law. Words and phrases — “search engine” — “secondary publisher” — “autocomplete 20 predictions” — “no real prospect of success”. The respondent commenced proceedings in the Supreme Court of Victoria by writ against the appellant served in the United States. The respondent alleged that the appellant published defamatory images concerning the respondent, and search results that were 25 defamatory of him. Those images were thumbnails returned by the appellant’s images search engine upon a user inputting search terms that included, for example, “Melbourne criminal underworld photos”. The thumbnails returned included an image of the respondent, but also of numerous other persons and places. The search results included printouts of search results returned from similar search terms, as well as autocomplete predictions made in the course of inputting the respondent’s name (or part thereof) in 30 prefix to a search. The appellant applied to the primary judge to set aside the respondent’s writ or its service. The primary judge dismissed the appellant’s summons on the basis that the respondent’s claim did not have “no real prospect of success”. The primary judge, in so concluding, rejected the appellant’s submissions, first, that as a matter of law it could not 35 be held to have published the alleged defamatory matter; second, that it would not be open to the trier of fact to conclude that the matter relied upon was defamatory of the plaintiff; and third, that, in any event, a “search engine provider” should be immune from such a proceeding. The appellant applied to the Court of Appeal of the Supreme Court of Victoria for leave to appeal against the primary judge’s decision. At issue was whether the primary judge erred in so concluding. 40 Held, per curiam, granting leave to appeal and allowing the appeal: (i) A search engine, when it publishes search results in response to a user’s inquiry, should be accounted a publisher of those results (including autocomplete predictions), since it is a participant in a chain of distribution of material: at [348]. 45 Webb v Bloch (1928) 41 CLR 331, applied. Metropolitan International Schools Ltd (t/as Skillstrain and/or Train2game) v Designtechnica Corporation (t/as Digital Trends) [2011] 1 WLR 1743; [2009] EWHC 1765 (QB); Trkulja v Google Inc LLC (No 5) [2012] VSC 533; Bleyer v 50 Google Inc LLC (2014) 88 NSWLR 670; 311 ALR 529; [2014] NSWSC 897; Yeung 342 ALR 504 GOOGLE INC v TRKULJA (Full Court) 505 v Google Inc [2014] 4 HKLRD 493; [2014] HKCFI 1404; Duffy v Google Inc (2015) 125 SASR 437; [2015] SASC 170; Crookes v Newton (2011) SCC 47; [2011] 3 SCR 269; Niemela v Malamas [2015] BCSC 1024, considered. (ii) A search engine should be accounted a secondary publisher, since it is true that its automated response picks up words used in the search term and in identified webpages, but that adds nothing to what has already been published: at [349]. Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366; [2013] HKCFA 47, considered. (iii) Assuming that it is correct to say that a search engine is a secondary publisher of search results, an innocent dissemination defence will almost always, if not always, be maintainable in a period before notification of an alleged defamation: at [353]. Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; 141 ALR 1, considered. (iv) The production of results by an internet search engine does not constitute a primary publication of those results, such that the operator of the search engine may be liable, if at all, for any defamatory content in the search results (including autocomplete predictions) only as a secondary publisher: at [357]. Byrne v Deane [1937] 1 KB 818; 2 All ER 204; Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reps 81-127, considered. (v) The matter upon which the respondent relied was incapable of conveying any of the defamatory imputations that were pleaded: at [405]. Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52, applied. (vi) If there is to be any immunity in favour of a search engine from liability for defamation, it must be conferred by legislation: at [414]. Application for leave to appeal and appeal This was an application for leave to appeal, and the subsequent appeal, from the judgment of McDonald J of the Supreme Court of Victoria in Trkulja v Google Inc [2015] VSC 635. N J Young QC and L De Ferrari instructed by Ashurst Australia for the applicant (Google Inc). P Heywood-Smith QC and E J Batrouney instructed by George Liberogiannis & Associates for the respondent (Milorad Trkulja (aka Michael Trkulja). [1] Ashley, Ferguson and McLeish JJA. The Court has before it an application for leave to appeal which raises difficult questions about the law of defamation as it applies to the results produced by internet search engines. At issue are the questions whether the search engine provider ‘publishes’ those results for the purposes of defamation law, and whether, in the particular instance, the results produced in the present matter were capable of being defamatory of the plaintiff. 506 AUSTRALIAN LAW REPORTS VSCA [2] By its further amended summons dated 12 February 2015, Google Inc (‘Google’ or ‘the defendant’) sought to set aside a defamation proceeding brought against it by Milorad1 Trkulja (‘Trkulja’ or ‘the plaintiff’). Pursuing its application before a judge in the Trial Division on 13 August 2015, Google relied upon the Court’s power, conferred by r 8.09(a) of Ch 1 of the Supreme 5 Court (General Civil Procedure) Rules 2015 (the Rules), to set aside a writ or its service. Google had been served with the writ in the United States, the plaintiff apparently relying upon r 7.01(1)(i) and (j) of Ch 1 of the Rules. Google had entered neither an appearance nor a conditional appearance. [3] Both below and in this Court, Google accepted, referring to Agar v Hyde,2 10 that to succeed in its application it must establish that the plaintiff’s proceeding has no real prospect of success. That position was correctly taken. In Agar, defendants who had been served with process overseas sought to set aside service, mainly on the footing that the plaintiffs’ claims had insufficient prospects of success. Justices Gaudron, McHugh, Gummow and Hayne concluded that the 15 test of insufficient prospects of success was no less demanding than that which operates when application is made for summary judgment. They said that— The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about 20 the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.3 [4] Their Honours said also that the same test should be applied in deciding whether originating process served 25 outside Australia makes claims which have such poor prospects of success that the proceeding should not go to trial as is applied in an application for summary judgment by a defendant served locally.4 [5] In Victoria, by operation of ss 62 and 63 of the Civil Procedure Act 2010, the test is whether a plaintiff’s claim ‘has no real prospect of success’. 30 [6] In support of its application, Google advanced three submissions. First, that as a matter of law it could not be held to have published the alleged defamatory matter. Second, that it would not be open to the trier of fact to conclude that the matter relied upon was defamatory of the plaintiff. Third, that, in any event, a 35 ‘search engine provider’ should be immune from a proceeding such as this. [7] The judge, in reasons published on 17 November 2015, rejected all three submissions, and ordered that the summons be dismissed. [8] By application dated 9 December 2015, Google sought leave to appeal 40 against the judge’s orders; and, if leave be granted, that the appeal be allowed. On 7 October 2016, this Court heard argument respecting both the application for leave to appeal and the appeal.5 45 1. Or “Michael”. 2. (2000) 201 CLR 552; 173 ALR 665; [2000] HCA 41 (Agar). 3. Agar at [57]. 4. Agar at [60]. 50 5. See r 64.19 of the Civil Procedure Act 2010. 342 ALR 504 GOOGLE INC v TRKULJA (Full Court) 507 [9] In our opinion, for the reasons which follow, Google should have leave to appeal, and the appeal should be allowed. Leave to appeal should be granted because, in our opinion, the appeal has a real, not fanciful, prospect of success.6 The substantive appeal should be allowed because, in our opinion, the demanding test which we identified above, the burden lying upon Google, has been satisfied. The defamation which is alleged [10] The only formal documents before the Court are the writ and an amended statement of claim. [11] The writ was filed on 2 December 2013. It contained both an indorsement and a statement of claim.
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