Leanne O’Donnell is a lawyer who worked on iiNet’s landmark copyright defence last year. She is currently working as a researcher for County Court of Victoria and joins APC as an expert commentator on legal/technology issues.
Former music promoter Michael Trkulja is suing Yahoo! Seven over a search result which he says made him look like an underworld criminal.
Trkulja was shot in the back at a restaurant last year but police made no suggestion he was linked to crime figures. However Yahoo’s search result showed the following:
“below is the host webpage http:/melbournecrime.bizhosting.com/Michael.Trkulja.htm with the image in its original context.”
Below that was a webpage titled “Melbourne Crime” which displayed nine photos and a cached article from the Herald Sun – “Shooting probe Urged November 20 2007″.
The Herald Sun article featured a prominent photo of Trkulja.
Trkulja is suing on the basis that the Yahoo page made it look like he was a criminal in the Melbourne crime scene and so much so that someone had hired a hit-man to kill him. He is also complaining that the Yahoo page suggested he was featured on a website that chronicles underworld figures in Melbourne and that the arrangement of pictures on Yahoo implied he was an associate of an alleged drug trafficker and murderer.
The case is expected to be closely watched by the internet industry because it’s the first time a court in Australia has considered whether companies like Google and Yahoo! could be liable for defamatory content found through or cached by their search engines.
Does a search engine actually “publish” anything?
The Victorian Supreme Court describes the test of whether a publication is defamatory as depending on whether the material: â€œ… published by the defendant would tend to lower the plaintiff in the minds of ordinary reasonable members of our societyâ€.
The presiding judge Justice Kaye last week dismissed Yahoo!’s claim for summary judgment meaning the case will go ahead to full trial unless the parties settle first.
The key question that lawyers will be battling over is whether Yahoo â€œpublishedâ€ the snippets in question. That will partially determine whether the company can be liable under defamation law.
In other defamation actions involving online content the jurisdiction of the court has often been a stumbling block for plantiffs too. For example is the Supreme Court of Victoria the right forum to hear a case concerning online content published by an American publisher and hosted on a server located in America â€“ even if the content relates to an Australian person?
The famous Gutnick case
These questions of jurisdiction and publication have actually been considered previously by the High Court in the defamation lawsuit between miner Joseph Gutnick and the Dow Jones Company after Dow Jones website Barron’s Online published an article in October 2000 titled “Unholy Gains” which made several claims about Gutnick that he considered defamatory.
Gutnick lives in Victoria and Barron’s is published in the US but the Supreme Court of Victoria found that where someone reads an article is where the defamation takes place â€“ not where it was published because defamation only happens once content is consumed and until then “no harm has been done”. Therefore Dow Jones was found to have published the information “in Victoria”. The court warned: “If a publisher publishes in a multiplicity of jurisdictions it should understand and must accept that it runs the risk of liability in those jurisdictions in which the publication is not lawful and inflicts damage.”
Google’s brush with Victorian courts
Google has also been before the courts in Victoria regarding a blog that criticised people with a certain disability. The blog was hosted on Google’s Blogger.com service and Australian man Phillip Gluyas (who is also a blogger) complained under the Equal Opportunity Act that Google was assisting or endorsing the American blogger to discriminate against him and others with his condition by not removing the blog post.
However unlike the Gutnick case the Victorian Civil and Administrative Tribunal (VCAT) found it didn’t have jurisdiction because Google’s refusal to take down the blog post occurred outside of Victoria saying Google’s involvement was â€œpurely passive providing a platform on the internet without encouraging offensive material but merely failing to take it downâ€ and â€œone which could not see it regarded as having published the offending material in Victoriaâ€.
Looking to the Brits for guidance
Where there’s no legal precedent in Australia courts here look to Britain for existing precedent. Two British court decisions may well be used in the Trkulja v Yahoo case.
Defamation on Usenet
British man Laurence Godfrey found what he claimed was a forged post on a Usenet newsgroup posted from the US. He sent his ISP Demon Internet a fax requesting that they remove the post which they ignored. He promptly sued them for defamation.
In its defence Demon argued it was not the publisher of the offending post but merely ran the server through which the post was cached. To Demon’s surprise it got short shrift with this argument — the judge found that Demon had in fact “published” the material for the purposes of defamation law.
Since Demon had received the fax from Godfrey regarding the offending post the judge ruled it knew of the defamatory post but chose not to remove it from its UseNet news servers. Demon found itself in the same legal situation as a bookseller who sold a defamatory book — liable for the defamation.
Defamatory forum threads
Google was again in the courts last year over search results which repeatedly referenced a forum thread with the title ‘Train2Game new SCAM for Scheidegger’
Train2Game is a service from a British company Metropolitan International Schools. The company sued the American operator of the forum that originally included the thread but also sued Google US and Google UK for defamation.
Google challenged the jurisdiction of the High Court of England saying it wasn’t an appropriate place to sue since its search engine wasn’t physically operated within the UK. It also argued that a search engine is automatic and couldn’t be held liable for a “snippet” of information at least prior to someone letting it know of the problem.
The judge in this case found that since Google’s search result was automatically generated it could be distinguished from Demon’s news server lawsuit because in that case Demon stored the information within the UK.
Justice Eady also emphasised that “when a snippet is thrown up on the user’s screen in response to his search it points him in the direction of an entry somewhere on the Web that corresponds to a greater or lesser extent to the search terms he has typed in. It is for him to access or not as he chooses. It is fundamentally important to have in mind that [Google] has no role to play in formulating the search terms. … There will have been no intervention on the part of any human agent. It has all been done by the web-crawling “robots”.
Google blocked access to the problematic search results from www.google.co.uk though it didn’t stop people in the UK finding it on Google.com.
Given Google had taken some steps to block the URLs in the UK the judge in this case found it was unrealistic to consider Google responsible for “publication” of the information â€“ a precedent that seems to directly relate to the forthcoming Trkulja vs Yahoo case in Australia.
Waiting with bated breath…
Google has successfully defended itself from lawsuits relating to information made available to search engine users in Spain and France in the past year but in addition to the Melbourne Trkulja lawsuit is also facing legal action in Sweden after a man sued Google Sweden for defamation over a search result referencing anonymous blogs that made him look like a paedophile.
Considering search engines determine whether a website lives or dies â€“ by making it findable â€“ they are a juicy target for lawsuits. Not only are they cashed up giving plaintiffs a real chance at extracting financial damages but if links to websites can be removed from them the websites might as well have been erased from the net altogether.
In this light the verdict from The Supreme Court of Victoria on Trkulja v Yahoo! Inc will be watched with interest internationally. The case has not yet been scheduled for final hearing.
Leanne O’Donnell is currently working as a researcher at the County Court of Victoria supporting the judiciary.
Last year she worked with Herbert Geer as part of the legal team representing iiNet in the landmark copyright trial â€“ Roadshow Films Pty Ltd v iiNet Limited (No 3)  FCA 24 (Roadshow v iiNet). She can be contacted via LinkedIn or twitter: @lods1211.
The information in this article is general and is not a substitute for legal advice.