Kiefel
CJ
Bell
J
Keane
J
Nettle
J
Gordon
J
17.
what relationship there could possibly be between the words inputted and the
compilation produced, and very probably perceive a disconnect between the
images and the search terms" and would "recognise ... that the search results in
their entirety did not reflect the meaning of the inputted words considered as a
phrase"58.
46
The Court of Appeal also relied, in part, on observations of this Court in
Google Inc v Australian Competition and Consumer Commission ("Google v
ACCC")59 as support for the Court of Appeal's findings as to the knowledge to be
attributed to the ordinary reasonable user of a search engine60.
47
From that, it was said to follow that, considered by reference to the
understanding of an ordinary reasonable user of a search engine, and, in
particular, the Google search engine61:
"the plaintiff would have no prospect at all of establishing that the images
matter conveyed any of the defamatory imputations relied upon. … It
might be said, if a contrary conclusion was to be reached, that the list of
persons potentially defamed would be both large and diverse. We do not
accept that such a conclusion would be sound."
48
Likewise, in relation to page 14 of Annexure A, which contained an image
of autocomplete predictions, an image referring to a "[w]ebsite for this image"
and stating that "[i]n a nutshell, Michael Trkulja's beef with both Yahoo and
Google was that …", and advertisements for a defamation lawyer and an online
solicitor, the Court of Appeal held that the content was incapable of being
defamatory. Their Honours found on the basis of Google's affidavit evidence
that autocomplete predictions which are returned in respect of particular search
terms entered by search engine users are strongly influenced by the particular
user's previous searches. In the Court of Appeal's view, it was also "crystal
clear" that the image of the webpage related to Mr Trkulja's earlier successful
defamation proceedings. Viewing page 14 in the context of the whole of
58
Google Inc v Trkulja (2016) 342 ALR 504 at 537 [151].
59
(2013) 249 CLR 435; [2013] HCA 1.
60
Google Inc v Trkulja (2016) 342 ALR 504 at 541-543 [175]-[179].
61
Google Inc v Trkulja (2016) 342 ALR 504 at 597 [391].
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