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Google Found Liable In Australian Court for Initial Refusal To Remove Links

Adam Holland, November 28, 2012

Abstract: In what has been described as a "landmark" ruling, an Australian court has found Google, Inc. liable for defamation, specifically libel, for not removing links from its search engine when asked to.

In 2009, music promoter Milorad Trkulja asked Google to remove some links that led to articles referencing him with libelous content. Google initially refused, citing their current policies on content removal, and suggesting that Mr. Trkulja instead contact the website owners themselves. Also noteworthy is that Trkulja apparently did not properly fill out Google's online form for such complaints. He subsequently sued. the case concluded this week when the Supreme Court of Victoria, the highest court of record in the Australian state of Victoria, ordered that Google pay a $200,000 fine. (Australian dollars).

The jury in the case, which found in Trkulja's favor at the end of October, found that the defense offered by Google, that it was not a publisher and that the links and keywords were the result of automated software decisions, was valid only "up to the point that Google had received the complaint about its picture results.". Because of Trkulja's error with the form, Google was not liable for the search results in this particular instance.

Trkulja won a related case against Yahoo! in March of 2012. Yahoo! actually hosted one of the sites in question.

Readers familiar with U.S. law on notice and takedown will recognize similarities to Section 512 of the Digital Millenium Copyright Act. Mashable points out that this may force Google "to comply with every takedown notice it receives from an Australian citizen," which sounds a lot like the balance struck in the US for 3rd party intermediaries re: copyright infringement online, except of course this case involves defamation, which the U.S. handles with Section 230 of the Communication Decency Act.

Apparently what happened was this. In 2004 Trkulja was shot in the back by a masked man. During the ensuing investigation, one initial theory may have been that the shooting had some connection to Melbourne's organized crime community. However, according to Australian news coverage, police did not ever link the two. But the initial nebulous connection was enough to lead to Trkulja's name appearing in Google searches next to images of figures in the underworld community or with text implying Trkulja was a criminal. for example he "complained that the first result brought up by a web search of his name showed the words "Michael Trkulja - Melbourne Crime - Underworld - Ganglands". .

In court, Trkulja:
"pleaded three imputations, both as false innuendos and also as true innuendos. Those imputations were:

(a) the plaintiff was a prominent figure in the Melbourne criminal underworld;

(b) the plaintiff was so involved with crime in Melbourne that his rivals had hired a hit man to murder him;

(c) the plaintiff was such a significant figure in the Melbourne criminal underworld that events involving him were recorded on a website that chronicled crime in Melbourne.

Additionally, the plaintiff pleaded a further imputation as a true innuendo, namely “The plaintiff is a hardened and serious criminal in Melbourne, in the same league as Tony Mokbel, an alleged murderer and a drug trafficker, and Denis Tanner, an alleged murderer”.

The ruling is significant because, in Australia at least, it makes it impossible for Google to continue to claim that it is not a publisher, or that its search results are the product of computer algorithms with no human intervention. (In light of recent disclosures , whether Google still seriously claims this latter point is in question.)

But if Google is now a publisher, all sorts of things change vis-a-vis Google's responsibility for content.
The court's judgment described it like this:

"Google Inc. is like the newsagent that sells a newspaper containing a defamatory article. While there might be no specific intention to publish defamatory material, there is a relevant intention by the newsagent to publish the newspaper for the purposes of the law of defamation."

Or, as Gizmodo UK puts it:
"Google’s not the newspaper, just the automated newsagent. But is still guilty anyway because it developed the software to work that way."

So with respect to allegedly defamatory content, will Google Australia start behaving as if there's a DMCA style notice and takedown procedure in place? At least while the case is on appeal? Or will it just be a little more cautious about vetting search results? Since the latter seems logistically daunting, the former seems more likely.

Needless to say, Google plans to appeal, and its take on things has been the one to prevail in other courts, so this may not be over yet.

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