Defamation case win against Google for "image linking" – the power of the defamation concerns notice

Typing words, and sometimes people’s names, into Google’s search engine can produce interesting results.

For Milorad “Michael” Trkulja, that process saw Google’s images search engine “link” him to Melbourne gangland figure Tony Mokbel, and a now defunct website called “Melbourne Crime”. 

Mr Trkulja was understandably unhappy about both search results on his name.

Images of Mr Trkulja found their way online after he was shot in the back while dining at a Melbourne restaurant in 2004.  The incident did not have any connection with the underworld or gangland figures.

In 2009, Mr Trkulja discovered that Google’s search engine had indexed those images of him in a way where they appeared alongside photographs of Mokbel. 

He complained to Google about his concerns of the “linking”, something which was causing people to think less of him, and so defaming him.

Part of Mr Trkulja’s complaint was that a search of his name brought up the words:  “Michael Trkulja - Melbourne Crime - Underworld – Ganglands”, and below that the sentence:  “Former music promoter Michael Trkulja was shot in the back by a hitman wearing a balaclava while dining at a St Albans restaurant in June 2004.”

He argued that the content suggested he had been involved in crime and his rivals had hired a hitman to murder him.  He said the impact of the search results defamed him.  He said he had experienced people at a wedding refusing to sit at his table, and others not wanting to associate with him in public.

Mr Trkulja complained to Google asking for the take-down of the offending content.  That didn’t happen, so Mr Trkulja sued.

Interestingly, Mr Trkulja had raised a similar complaint against online search engine Yahoo.  He sued Yahoo too and won $225,000 in damages for defamation earlier this year.

Earlier this month, Mr Trkulja – a leader of the Serbian Orthodox Church – was awarded another $200,000 over what a six person jury found was another publication of defamatory content this time by Google.

Google had relied on a defence of innocent dissemination.  It argued that as a search engine operator it was not a publisher as such, with search results produced by software automatically.  Google contended it did no more than index links to the website of concern and the images in its search results and did not know the material was defamatory.

But the innocent dissemination defence failed because Mr Trkulja’s lawyers had put Google on notice of the issues about the offending content, which gave the online behemoth the opportunity to remedy the situation.  But it didn’t, a point that seemed important to the jury’s deliberations.

On the damages front, Google argued that as the Yahoo “publication” was first in time, it struck the first substantial blow to Mr Trkulja’s reputation, and that the extent of publication and the “grapevine effect” was probably greater in the Yahoo matter.

Victorian Supreme Court David Beach said “the amount of damages to be awarded [to Mr Trkulja] must be sufficient … to ‘nail the lie’ in respect of the [defamatory] imputation upon which the plaintiff succeeded”.

Media reports quoted Google’s response to the decision, namely: “Google’s search results are a reflection of the content and information that is available on the web.  The sites in Google’s search results are controlled by those sites’ webmasters, not by Google.”

Google’s reputation appeared also to be a factor in the size of the damages that were awarded by Beach J.  His Honour noted there were more Google publications than Yahoo publications and the word “Googling” had entered the vernacular whereas there was no corresponding word in respect of Yahoo’s products.

It remains to be seen whether Google will appeal against the decision.

The damages awards in the Google and Yahoo cases

The damages awarded to Mr Trkulja in his actions against Yahoo and Google are two of the highest made since the introduction of the uniform defamation legislation in Australia in 2006.

The Western Australian Defamation Act – like those similar Acts around the country – imposes a cap on the general damages that can be awarded.  From 1 July 2012, that cap was set at $339,000.

Damages can be increased if there is a finding that defamatory matter was published in some aggravated kind of way.  And there is no limit placed on the amount of special damages that can be awarded.  If a defamation causes actual economic loss to a claimant, for example, it causes the loss of a person’s job or source of income generation, damages for the economic loss of that impact can be proved and recovered in the actual dollar terms of the loss that was caused.

The message from Trkulja v Google Inc LLC & Google Australia Pty Ltd

The big take-away from the Trkulja case is the power and potential impact of the lawyer’s letter, and in the case of a defamation complaint, a defamation concerns notice.

Such documents put a potential defendant publisher on notice of a person’s concerns about publication of defamatory matter, and starts a process under the legislation the object of which is to provide a cheap, quick and non-litigious process for a complaint to be resolved.

The lawyer’s letter can also have the effect – as it did for Mr Trkulja – of breaking the necessary steps that a defendant publisher must establish in order to succeed on some defences, in this case of a defamation arising in the online world, that of the defence of innocent dissemination.

Case reference - Milorad Trkulja v Google Inc LLC & Google Australia Pty Ltd [2012] VSC 533\

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.