Kiefel
CJ
Bell
J
Keane
J
Nettle
J
Gordon
J
20.
eventuated) of judging the issue according to what the court may think the
allegedly defamatory words or images say or depict rather than what a jury could
reasonably think they convey.
53
Further, although it might be correct to say that the capacity of the search
results to convey the alleged defamatory imputations is to be judged by reference
to the "ordinary reasonable user of a search engine such as the Google search
engine"68, by analogy, say, to the way it is said that the capacity of a newspaper
article to defame is to be judged by reference to the standards of an ordinary
reasonable reader69, to do so would be correct only so long as the expression
were understood to mean an ordinary reasonable person who has made the
Google search in issue.
54
No doubt, as the Court of Appeal said, it can be assumed that the ordinary
reasonable person who has used the Google search engine to make a search
contemplates that the results of his or her search bear some connection to the
search terms. But in the absence of tested, accepted evidence to the contrary, it
must also be allowed that the ability to navigate the Google search engine, and
the extent of comprehension of how and what it produces, whence it derives, and
how and to what degree Google contributes to its content, may vary significantly
among the range of persons taken to be representative of the hypothetical
ordinary reasonable person.
55
Additionally, the question of law of whether the standard of knowledge
and comprehension of the processes involved should be taken as some
hypothetical midpoint in the range of understanding is yet to be authoritatively
determined. It may well be that the answer will turn on evidence as to the
standards of knowledge and comprehension among users of the Google search
engine (be they first-time or experienced participants, and recognising that the
two classes may require separate consideration for the purposes of the law of
defamation70), and on inferences to be drawn from that kind of evidence as to the
68
Google Inc v Trkulja (2016) 342 ALR 504 at 597 [390].
69
Favell (2005) 79 ALJR 1716 at 1718-1719 [5] per Gleeson CJ, McHugh, Gummow
and Heydon JJ, cf at 1722-1723 [23]-[26] per Kirby J; 221 ALR 186 at 188, cf at
193-195.
70
See Capital and Counties Bank v Henty (1882) 7 App Cas 741 at 744-745 per
Lord Selborne LC, 771 per Lord Blackburn and Amalgamated Television Services
Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165-167 per Hunt CJ at CL (Mason P
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