Kiefel
CJ
Bell
J
Keane
J
Nettle
J
Gordon
J
24.
of the evidence adduced at trial, it would be open to a jury to conclude that an
ordinary reasonable person using the Google search engine would infer80 that the
persons pictured whose identities are unknown are persons, like the notorious
criminals with whom they are pictured, in some fashion opprobriously connected
with criminality and the Melbourne criminal underworld.
62
So to conclude, as the Court of Appeal observed, might result in the list of
persons potentially defamed being large and diverse. But contrary to the Court
of Appeal's apparent reasoning, that does not mean that the conclusion is
unsound. It means no more than that, in such cases, the liability of a search
engine proprietor, like Google, may well turn more on whether the search engine
proprietor is able to bring itself within the defence of innocent dissemination than
on whether the content of what has been published has the capacity to defame.
63
The Court of Appeal further erred, in relation to the autocomplete
predictions which appear on page 14 of Annexure A and pages five to seven of
Annexure B, in adopting the findings of mixed fact and law made by Blue J
sitting at trial as judge alone in Duffy in relation to the autocomplete publications
in that case as a basis for concluding that the autocomplete predictions in this
case were incapable of conveying the imputations alleged. Contrary, too, to the
Court of Appeal's reasoning81, the apparent references in Annexure B to previous
defamation proceedings involving Mr Trkulja do not significantly if at all detract
from the conclusion that the impugned searches are capable of conveying the
defamatory imputations alleged. On page one of Annexure B, there appear the
words "Milorad 'Michael' Trkulja is a former hitman who shot a music promoter
in the balaclava" followed by the word "Streisand'd". Ex facie, those words are
capable of imputing some criminality on the part of Mr Trkulja.
64
The Court of Appeal reasoned by reference to a meaning of "Streisand'd"
which their Honours appear to have derived from Wikipedia that "Streisand'd"
implied a reference to Mr Trkulja's earlier successful defamation proceeding
against Google82. But that is not an inference that was open to be drawn. It had
80
Cf Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301 per Mason J
(Gibbs CJ, Wilson J and Brennan J agreeing at 295, 303); [1982] HCA 50;
Marsden (1998) 43 NSWLR 158 at 167 per Hunt CJ at CL (Mason P and
Handley JA agreeing at 161).
81
Google Inc v Trkulja (2016) 342 ALR 504 at 598 [394], [398]-[399].
82
Google Inc v Trkulja (2016) 342 ALR 504 at 511 [35].
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