Google’s loss in online defamation case Trkulja v Google good reason to resist CDA in NAFTA

June 25th, 2018 by Barry Sookman Leave a reply »

There is a repeating pattern in online defamation cases against Google. An individual’s reputation is alleged to be tarnished by Google’s search results or its autocomplete feature. The individuals plead with Google for help. As one of the Internet’s most important gatekeepers, Google is in a position to stop the damage, especially because its algorithms are the source of it. Google refuses to help, or does so only partially. Courts rule against Google finding it a publisher, at least once it has notice. Google, appeals the decision, apparently unconcerned about the damages its search services cause to members of the public or the financial and emotional costs of litigating against one of the planet’s richest companies. Google loses the appeal.

This scenario recently played out in the Australia case Trkulja v Google LLC [2018] HCA 25 (13 June 2018). Mr Trkulja alleged that Google defamed him by publishing images which convey imputations that he “is a hardened and serious criminal in Melbourne”, in the same league as figures such as “convicted murderer” Carl Williams, “underworld killer” Andrew “Benji” Veniamin, “notorious murderer” Tony Mokbel and “Mafia Boss” Mario Rocco Condello; an associate of Veniamin, Williams and Mokbel; and “such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a website that chronicles crime in [the] Melbourne criminal underworld”. Among other things, he also claimed that when a searcher used the search term “michael trk” Google’s “autocomplete” search results page returned phrases including “michael trkulja criminal”, “michael trkulja melbourne crime”, “michael trkulja underworld” and “michael trkulja melbourne underworld crime”.

Google moved to set aside the claim arguing that (i) that it was not a publisher; (ii) that its search results were not defamatory of Mr Trkulja; and (iii) that Google was entitled to immunity from suit for public policy reasons (it was above the law). The motions court judge ruled against Google. McDonald J concluded that it was strongly arguable that Google’s intentional participation in the communication of the allegedly defamatory search results relating to Mr Trkulja to users of the Google search engine supported a finding that Google published the allegedly defamatory results. See, Barry Sookman Search engines liability for defamation – Trkulja v Google. Google was partially successful in the Court of Appeal, Google Inc v Trkulja (2016) 342 ALR 504 (but not on the policy issue that it was above the law) and the matter was then appealed to the High Court. It restored the original decision.

The High Court had little difficulty concluding that the search results were capable of being defamatory.

Be that as it may, it is evident for the reasons given by McDonald J that at least some of the search results complained of had the capacity to convey to an ordinary reasonable person viewing the search results that Mr Trkulja was somehow opprobriously associated with the Melbourne criminal underworld, and, therefore, that the search results had the capacity to convey one or more of the defamatory imputations alleged. Whether or not the search results are viewed individually or as a composite does not affect that conclusion. As will be explained, the Court of Appeal’s reasoning to the contrary must be rejected…

McDonald J was correct to hold that it is strongly arguable that Google’s intentional participation in the communication of the allegedly defamatory results to Google search engine users supports a finding that Google published the allegedly defamatory results. Properly advised, that was all that the Court of Appeal needed to say on the subject.

The Court of Appeal had held that if the search results were defamatory, then Google would inevitably have been an innocent disseminator until it received notice of the claim. The High Court disagreed with this unequivocal assertion stating:

McDonald J was correct to hold that it is strongly arguable that Google’s intentional participation in the communication of the allegedly defamatory results to Google search engine users supports a finding that Google published the allegedly defamatory results. Properly advised, that was all that the Court of Appeal needed to say on the subject. Instead, although the Court of Appeal did not decide the appeal on the question of publication, their Honours made a purportedly determinative finding of mixed fact and law[45] that a search engine proprietor, like Google, is a publisher of search results, including of autocomplete predictions, but that an innocent dissemination defence will almost always, if not always, be maintainable in a period before notification of an alleged defamation.

That was not an appropriate way to proceed. In point of principle, the law as to publication is tolerably clear. It is the application of it to the particular facts of the case which tends to be difficult, especially in the relatively novel context of internet search engine results. And contrary to the Court of Appeal’s approach, there can be no certainty as to the nature and extent of Google’s involvement in the compilation and publication of its search engine results until after discovery. There are only the untested assertions of Google deponents. Furthermore, until and unless Google files a defence it cannot be known what defences will be taken (whatever Google might now say is its intention regarding the defences on which it will rely). Nor does it profit to conjecture what defences might be taken and whether, if taken, they would be likely to succeed. For whatever defences are taken, they will involve questions of mixed fact and law and, to the extent that they involve questions of fact, they will be matters for the jury. Given the nature of this proceeding, there should have been no thought of summary determination of issues relating to publication or possible defences, at least until after discovery, and possibly at all.

In the result, Mr Trkulja’s claim was allowed to proceed. It may be years, however, before he gets his day in court and for all subsequent Google appeals to be exhausted.

The Trkulja case follows a another recent loss by Google in Australia in Google Inc. v Duffy [2017] SASCFC 130 (4 October 2017). In this case, Google had refused to deindex defamatory search results wrongly imputing that Janice Duffy was a “Psychic Stalker” (case summarized Barry Sookman, Google liable for defamation through search and autocomplete features: Duffy v Google and Barry Sookman, Is Google a publisher according to Google? The Google v Equustek and Duffy cases). Google also recently lost a case in Germany in which it refused to deindex search results wrongly imputing that the plaintiff was a “a non-treatable sex offender who attacks girls”, Higher Regional Court Cologne, Judgment v. 25.01.2018 – Ref . 15 U 56/17, summarized in my recent Toronto Computer Lawyers Group slides and here.

Google’s refusal to act to de-index search results that are inaccurate and which cause significant damage extends beyond statements that are claimed to be defamatory. For example, it has a history of failing to remove revenge porn despite the devastating effects on victims. It also has opposed deindexing search results that link to pages courts around the world have found to invade privacy rights. See Barry Sookman, Internet justice: Mosley v Google.

Google also refused to deindex websites that were used to sell products that allegedly violated the trade secret and other rights of Equustek even after a British Columbia court had enjoined that the operators of the site from offering the products online in the Google v Equustek case. It then unsuccessfully tried to extricate itself from complying with the Canadian order by using U.S. law to shield itself, managing to get a District Court to declare that the Canadian order could not be enforced against it in the U.S. because of the Communications Decency Act (CDA). However, a later BC court held that Google’s litigation strategy was unsuccessful. See, Barry Sookman, US court thumbs its nose at Supreme Court of Canada: Google v Equustek, Barry Sookman, Google attempted end run around Canadian courts fails, rules BC Judge in Equustek case. (The plaintiffs in the recent Force v. Facebook, Inc. No. 16-CV-5158 (NGG) (LB). (E.D.N.Y. Jan 17, 2018) case were not so lucky, having their case based on the tort law of Israel dismissed based on the CDA.)

There was a time when policy makers looked the other way when Google and other large social network providers sought safe harbours and absolute protections from liability in the name of fostering Internet innovation. However, there is an increasing realization that they should instead act responsibly and play a role in countering unlawful acts perpetrated online, especially when they knowingly facilitate or outright cause them.

Google’s litigation strategy, exemplified by cases around the world such as the Trkulja case, of refusing to act to prevent damage its search engines facilitate or cause and then use scorch earth litigation defense strategies to avoid being held to account, should be another data point for policy makes in deciding whether and how to regulate search engines and other large online platforms.

Google’s actions should also be a stark reminder to Canadian policy makers of why Canada should push back against Google and it’s Silicon Valley supporters lobbying to extend the CDA to Canada as part of NAFTA. If the Government of Canada believes ordinary Canadians should have remedies when Googe’s search engines return search results wrongly implying that someone is a member of the criminal underworld, a psychic stalker, or a non-treatable sex offender, access to justice rules for people need to be enhanced rather than denied. Agreeing to rules in the CDA which could immunize Google and other online providers from the types of claims described above, rather than pushing for principled rules that make them act responsibly, is not a good policy for Canada or the Canadian public, and especially for ordinary Canadians.

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