Kiefel
CJ
Bell
J
Keane
J
Nettle
J
Gordon
J
18.
Annexure A, it could not be considered capable of carrying any of the pleaded
imputations62.
49
As to the web matter, the Court of Appeal referred first to pages five to
seven of Annexure B, which also contained autocomplete predictions, and relied
on its earlier conclusion that the autocomplete predictions were incapable of
being defamatory63. Their Honours concluded that page one of Annexure B was
essentially of the same character as pages five to seven of Annexure B and,
further, that the apparent reference to Mr Trkulja being "Streisand'd" indicated
that64:
"The whole point of this page is that the plaintiff's successful defamation
proceeding had produced the Streisand effect. Far from carrying any of
the defamatory imputations pleaded by the plaintiff, the commentator was
pointing out that the plaintiff's successful defamation proceedings – in
which he had been awarded damages in respect of an imputation that he
was somehow connected with the Melbourne underworld – had not
brought matters to an end."
50
The Court of Appeal thereafter referred to page two of Annexure B, in
which, according to the Court of Appeal, the only reference to Mr Trkulja was in
connection with his earlier successful defamation proceeding against Google,
under the heading "Google defamation case and 'publishing' in the digital age –
Crikey". That led their Honours to observe65:
"How that could possibly be said to be defamatory of the plaintiff we do
not understand. The fact that the reference to the plaintiff's earlier
successful defamation proceeding was on a results page which adverted to
the television series, 'Underbelly', which contained thumbnails of persons
associated with the Melbourne underworld (none of which were the
plaintiff) and which referred to a reputed criminal named Arico, could not
possibly deflect attention from the import of the only reference to the
plaintiff."
62
Google Inc v Trkulja (2016) 342 ALR 504 at 597-598 [393]-[395].
63
Google Inc v Trkulja (2016) 342 ALR 504 at 598 [397].
64
Google Inc v Trkulja (2016) 342 ALR 504 at 598 [398].
65
Google Inc v Trkulja (2016) 342 ALR 504 at 598 [399].
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