Kiefel
CJ
Bell
J
Keane
J
Nettle
J
Gordon
J
8.
hyperlinks returned by web searches and autocomplete predictions. His Honour
illustrated the point by reference to a compilation of images of Mr Trkulja among
images of convicted criminals Judith Moran, Matthew Johnson and Tony
Mokbel, which appeared at page four of the web matter as reproduced in
Annexure B, and concluded that it was certainly arguable that a reasonable
search engine user would look at the compilation and assume that Mr Trkulja
was a convicted criminal17.
27
McDonald J further rejected Google's contention that Google should be
held immune from suit as a matter of public interest, observing, correctly, that
the range and extent of the defences provided for in Div 2 of Pt 4 of the
Defamation Act 2005 (Vic) militate heavily against the development of a
common law search engine proprietor immunity18.
The proceeding before the Court of Appeal
28
Before the Court of Appeal, Google advanced essentially the same three
grounds. The Court of Appeal found it unnecessary to decide the first ground
and rejected the third19. But the Court of Appeal upheld the second ground,
ruling in relation to the images matter that Mr Trkulja "would have no prospect at
all of establishing that the images matter conveyed any of the defamatory
imputations relied upon"20, and, in relation to the web matter, that Mr Trkulja
"could not possibly succeed in showing that the web matter upon which he relies
carried any of the pleaded defamatory imputations"21.
For the reasons which follow, the Court of Appeal were wrong so to hold.
29
17
Trkulja v Google Inc [2015] VSC 635 at [69]-[71].
18
Trkulja v Google Inc [2015] VSC 635 at [76].
19
Google Inc v Trkulja (2016) 342 ALR 504 at 593 [372], 601 [413].
20
Google Inc v Trkulja (2016) 342 ALR 504 at 597 [391].
21
Google Inc v Trkulja (2016) 342 ALR 504 at 598 [396].
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