Kiefel
CJ
Bell
J
Keane
J
Nettle
J
Gordon
J
15.
40
The Court of Appeal were also incorrect to say50 that it was incumbent on
Mr Trkulja to plead that Google is a primary or secondary publisher of the
allegedly defamatory matters. It is not the practice to plead the degree of
participation in the publication of defamatory matters51, for the reason that all
degrees of participation in the publication are publication. As Isaacs J held in
Webb v Bloch52:
"The term published is the proper and technical term to be used in the case
of libel, without reference to the precise degree in which the defendant
has been instrumental to such publication; since, if he has intentionally
lent his assistance to its existence for the purpose of being published, his
instrumentality is evidence to show a publication by him."
41
If Google wishes to invoke the defence afforded to "subordinate
distributors" by s 32 of the Defamation Act or otherwise contend that the degree
of its participation in the publication of the impugned search results was such that
it should not be held liable, it is for Google to plead and prove the relevant facts.
(ii) Capacity to defame
42
The Court of Appeal's process of reasoning as to the capacity of the
impugned web searches to defame Mr Trkulja proceeded from dual premises that
whether "any of the defamatory imputations which are pleaded [are] arguably
conveyed" is to be determined by reference to the understanding of "an ordinary
reasonable user of a search engine such as the Google search engine, without
which the facility to navigate the trillions of pages on the world wide web would
be gravely compromised", and having regard to the "entirety of the matter relied
upon"53.
50
Google Inc v Trkulja (2016) 342 ALR 504 at 557 [225].
51
See Mullis et al (eds), Gatley on Libel and Slander, 12th ed (2013) at 984-986
[26.5], 1398-1408 [A1.6]-[A1.11]; Blair et al (eds), Bullen & Leake & Jacob's
Precedents of Pleadings, 17th ed (2012), vol 1 at 634 [37-08]; Tobin and
Sexton (eds), Australian Defamation Law and Practice, looseleaf, service 72, vol 1
at [25,075]-[25,090].
52
(1928) 41 CLR 331 at 363-364 quoting Folkard, The Law of Slander and Libel,
5th ed (1891) at 439 (second and third emphasis added by Isaacs J).
53
Google Inc v Trkulja (2016) 342 ALR 504 at 597 [388]-[390].
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