In the recently published judgment of Trkulja v Google LLC  HCA 25 the High Court of Australia (HCA) held that Google may be liable for publishing potentially defamatory material.
Google had tried to obtain summary judgment on the basis that the case against it had no reasonable prospect of success. Google argued that their search engine did not publish the material and that the material was not defamatory of Mr Trkulja (Plaintiff). The trial judge rejected that application.
The trial judge’s decision was appealed to the Victorian Court of Appeal (VCA), which found in favour of Google. The VCA found it unnecessary to decide whether Google was the publisher of the material and found that the Plaintiff had no real prospect of successfully proving defamation.
On appeal by the Plaintiff, the HCA upheld the trial judge’s ruling in favour of the Plaintiff, in a strong judgement that was highly critical of the Court of Appeal’s approach and decision.
Paragraph 31 of the judgement, summarises the test for defamation. The published material associated the Plaintiff with criminal elements. The material came up on Google searches. The HCA concluded that at least some of the material published by Google had the capacity to be defamatory. The Plaintiff therefore had a reasonable prospect of success. The case may go back to the trial judge for the hearing to be conducted in full, unless of course Google decides, in view of the HCA’s ruling, that it should try to settle now, which would have to be an option.
The case clarifies the law relating to publication of defamatory material on the world wide web and should make it easier to stop defamatory material from being published through that medium. This may be particularly relevant to those who may have been seen as easy targets for web abuse. As well as suing perpetrators, they can sue Google, seek damages and endeavour to stop publication by an injunction.