Kiefel
CJ
Bell
J
Keane
J
Nettle
J
Gordon
J
23.
that Google made no contribution to the elements or combination of elements of
those of the search results that convey a connection between Mr Trkulja and
criminality. And in contradistinction to the "sponsored links" in Google v ACCC,
there is not here the indication axiomatically implicit in a third party
advertisement that the author of the advertisement is the advertiser.
60
Just as importantly, to say that a user of the Google search engine would
"inevitably give thought to just what relationship there could possibly be between
the words inputted and the compilation produced" or "very probably perceive a
disconnect between the images and the search terms" (emphasis added)78 does
not gainsay that it would be open to a jury to conclude on the balance of
probabilities that an ordinary reasonable person using the Google search engine
would perceive the compilation to convey one or more of the defamatory
imputations alleged. To the contrary, it is to be assumed that such a person
would contemplate that there is a connection between the terms of the search
inputted into the search engine and the contents of the results displayed.
Ex hypothesi, since he or she has conducted the search for criminals and
members of the Melbourne criminal underworld, he or she would rationally
suppose that there is something in the response which correlates to criminals and
members of the Melbourne criminal underworld. And prima facie the most
obvious, logical connection between the terms of the search and the response is
that those persons whose images or names appear in the response, under headings
such as "melbourne criminal underworld photos", "melbourne underworld crime"
and "melbourne underworld killings", or at least some of them, are criminals or
members of the Melbourne criminal underworld.
61
It is true, as the Court of Appeal observed79, that in some of the search
results comprising Annexures A and B, some of the persons shown are plainly
not criminals or members of the Melbourne criminal underworld. A former
Victorian Chief Commissioner of Police, the late Marlon Brando in his role as
"the Godfather", criminal law barristers and solicitors and other persons who are
not criminals but whose professions have something to do with crime are obvious
examples. But in each of the pages on which images of such persons appear,
there are also images of persons who are notorious criminals or members of the
Melbourne criminal underworld coupled with images of persons, such as
Mr Trkulja, whose identity is relatively unknown. Depending upon the totality
78
Google Inc v Trkulja (2016) 342 ALR 504 at 537 [151].
79
Google Inc v Trkulja (2016) 342 ALR 504 at 537 [151].
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