Niemela v. Malamas Page 24 program to generate search results and should be responsible in law for acts done by its “tool”: Trkujla at paras. 16, 18; Yuen at para. 103. In Trkujla Beach J. decided that it was open to the jury to conclude that Google was a publisher of search results (at para. 18). He reasoned (at para. 20): 20 As was pointed out by counsel for the plaintiff in his address to the jury, the first page of the images matter (containing the photographs I have referred to and each named “Michael Trkulja” and each with a caption “melbournecrime”) was a page not published by any person other than Google Inc. It was a page of Google Inc.’s creation – put together as a result of the Google Inc. search engine working as it was intended to work by those who wrote the relevant computer programs. It was a cut and paste creation (if somewhat more sophisticated than one involving cutting word or phrases from a newspaper and gluing them onto a piece of paper). If Google Inc.’s submission was to be accepted then, while this page might on one view be the natural and probable consequence of the material published on the source page from which it is derived, there would be no actual original publisher of this page. [81] A contrary view was expressed by Eady J. of the English Court of Queen’s Bench in Metropolitan. In that case the claimant was in the business of providing adult distance learning courses. It was the subject of disparaging and defamatory comments on electronic bulletin boards maintained by the defendant, Designtechnica. Metropolitan sued Designtechnica and Google Inc. (described in the judgment as the “Third Defendant”) for defamation. The claim against Google was that it was publishing the defamatory comments through search results and snippets provided in connection with search results. [82] The matter came before Eady J. on Google’s application to set aside a without notice order for service outside the country. Google maintained that it was not a publisher, the action had no reasonable prospect of success, and that service ex juris ought therefore to be set aside. Google’s application succeeded. [83] Eady J. confronted the issue squarely under the heading “Can the operator of a search engine be liable for publication?” (at paras. 35-64). He held that the act of publication, giving rise to liability in defamation, requires a mental element, stating at para. 49: 2015 BCSC 1024 (CanLII) [80]