Kiefel
CJ
Bell
J
Keane
J
Nettle
J
Gordon
J
12.
35
Be that as it may, it is evident for the reasons given by McDonald J that at
least some of the search results complained of had the capacity to convey to an
ordinary reasonable person viewing the search results that Mr Trkulja was
somehow opprobriously associated with the Melbourne criminal underworld,
and, therefore, that the search results had the capacity to convey one or more of
the defamatory imputations alleged. Whether or not the search results are viewed
individually or as a composite does not affect that conclusion. As will be
explained, the Court of Appeal's reasoning to the contrary must be rejected.
The Court of Appeal's reasoning
36
The Court of Appeal's judgment is of extraordinary length and complexity
for the resolution of an appeal against dismissal of a summary disposition
application in which the only real question was the capacity of the published
matters to defame. It ranges across a broad tract of the law of defamation
extending to a substantial, proleptic analysis of the juridical basis of primary and
secondary publication in relation to computer search engine proprietors, of the
application of innocent publication defences to computer search engine
proprietors, and of how and why, in view of the social utility of computer search
engines, the existing law of defamation might better be shaped to relate to search
engine proprietors or relieve them from liability. Problematically, it also
effectively treats the judgment of Beach J in Trkulja v Google (No 5)37 as if it
were plainly wrong38 (despite the fact that Google did not appeal against that
judgment and that it has been considered with implicit approval in another
common law jurisdiction39), and, in relation to the question of capacity of the
autocomplete predictions to defame, treats40 the observations of Blue J in Duffy41
as if they went to capacity to defame, notwithstanding that Blue J was describing
the process of reasoning by which his Honour, sitting as trial judge, reached
37
[2012] VSC 533.
38
Google Inc v Trkulja (2016) 342 ALR 504 at 589-590 [344]-[348].
39
Dr Yeung Sau Shing Albert v Google Inc [2014] 4 HKLRD 493 at 534-536
[103]-[106]. See also Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013)
16 HKCFAR 366.
40
Google Inc v Trkulja (2016) 342 ALR 504 at 597 [393].
41
(2015) 125 SASR 437 at 527 [375].
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