The liability in defamation of search engines for search engine results or autocomplete predictions has been re-enlivened, with the High Court agreeing on 16 June 2017 to grant the plaintiff special leave to appeal the Victorian Court of Appeal’s decision of Google Inc v Trkulja  VSCA 333.
The grant of special leave to the plaintiff in Trkulja v Google Inc  HCATrans 129 makes it appear more likely that search engines will have a role to play in preventing the distribution of defamatory material, and will not be regarded as being merely passive or facilitative because their systems are automated.
The alleged defamatory material concerned search results in response to search terms such as “Melbourne criminal underworld” showing images of the plaintiff together with known Melbourne underworld figures (as well as other random figures such as barristers and journalists).
In December 2016, the Victorian Court of Appeal had found largely in favour of Google. It agreed to set aside the plaintiff’s application (without hearing evidence) concluding, amongst other things, that:
- Google could not be liable as a primary publisher, it being “out of the question” that it had the ability to control and supervise the word search results gleaned from more than 63 trillion individual web-pages.
- Google may have been a secondary publisher of search results, in which case an innocent dissemination defence would have been maintainable in the period before notification of the alleged defamation (but that this did not assist the plaintiff as it had not been pleaded).
- The search results could not have a defamatory meaning as a reasonable internet user would appreciate that the result yielded was simply one within a random compilation of images, and that the results in their entirety did not reflect the meaning of the inputted search terms.
- Autocomplete predictions could not be understood in a defamatory way as they are simply a collection of words entered by previous searches.
One of the principal issues in the application for special leave included whether or not the Victorian Court of Appeal had been correct to undertake the exercise it did without the benefit of trial and any factual findings, Nettle J noting that:
“[the Victorian Court of appeal decision] was an “extraordinary judgment…for a summary dismissal application without the benefit of trial and a case involving issues which, to put it at the lowest, are novel”.