A recent decision of the High Court of Australia has allowed Milorad “Michael” Trkulja to sue Google for defamation, following a six-year legal battle.

After being shot in the back in a Melbourne restaurant in 2004, Trkulja was falsely linked with Melbourne’s criminal underworld and later featured in a series of online search results and images. Trkulja subsequently initiated proceedings, alleging Google defamed him by publishing photos which wrongly associated him with well-known Australian criminals including Carl Williams, Chopper Reid and Tony Mokbel.

A 2012 decision of the Victorian Supreme Court found in favour of Trkulja, concluding that Google had defamed him by publishing photos and search results linking him to prominent figures of Melbourne’s underworld.

However, the Victorian Court of Appeal later overturned the decision, ruling the case had no prospects of successfully proving defamation. In doing so, the court found in favour of Google on the following grounds:

  1. Google is not a publisher
  2. The Google search results were not defamatory
  3. Google is entitled to immunity for public policy reasons

Despite this, in 2017 the High Court granted Trkulja special leave to appeal the decision. In arguing his case, Trkulja claimed Google searches for “Melbourne criminal underworld” produced results which associated him with notorious criminal figures, thus positioning him as a criminal himself and ultimately amounting to defamation.

Google contended that it would be ‘irrational’ for a reasonable person to assume all results in the search were of criminals, asserting that the relevant searches also returned results of movie posters, photos of actor Marlon Brando and images of crime victims.

Trkulja also claimed defamation on the basis that Google’s autocomplete function returned suggestions such as, ‘criminal’, ‘underworld’ and ‘is a former hit man’, after inputting his name. However, the court accepted Google’s submission that autocomplete is merely an automatic function influenced by previous search results.

Despite this, the High Court ultimately found in favour of Trkulja, supporting his claim that the Google search results were likely to persuade a reasonable person that he was “somehow associated with the Melbourne criminal underworld.”

In doing so, the court unanimously ruled that Google was in fact a publisher, concluding that “it is strongly arguable that Google’s intentional participation in the communication of the allegedly defamatory results to Google search engine users supports a finding that Google published the allegedly defamatory results.” Moreover, the court held that “the search results complained of had the capacity to convey to an ordinary reasonable person viewing the search results that Mr Trkulja was somehow opprobriously associated with the Melbourne Criminal Underworld, and, therefore, that the search results has the capacity to convey one or more of the defamatory imputations alleged.”

The outcome of this case, and the conclusion that search engines are in fact publishers in their own right, is likely to have serious implications for all search engine operators in Australia. However, whilst Mr Trkulja’s win signals significant progress for Australian defamation law, it remains just another step in his lengthy court battle, with Mr Trkulja set to return to the Victorian Supreme Court later next year.