Kiefel
CJ
Bell
J
Keane
J
Nettle
J
Gordon
J
16.
43
Their Honours next identified the impugned matter as being, in the case of
the images matter, "the composite of the search terms and the images compiled in
response" and, in the case of the web matter, "the composite of the search terms
and the results which the Google search engine produced"54, with the result that
all of the search results comprised in the images matter (reproduced in
Annexure A) were to be looked at as one single composite publication and all of
the search results comprised in the web matter (reproduced in Annexure B) were
to be looked at as another single publication, upon the basis that the ordinary
reasonable search engine user was to be attributed with knowledge of the
contents of all of the search results comprising Annexures A and B55.
44
The third step in the Court of Appeal's process of reasoning was that the
allegedly defamatory material was to be viewed in a context which comprised the
world wide web; the particular search engine website; the ability of any internet
user to access that website using a web browser to input search terms; and the
form of the search engine's response to the terms inputted by the user, because,
according to the Court of Appeal, "there would scarcely be an internet user in
Australia (or in the 189 countries where the Google search engine is used) who
would not recognise that context"56.
45
The fourth step was to reason that, because of the extreme speed with
which search engine results are generated, and the number of search results
produced, any user of a search engine would know of the enormous scale of the
search which has been made and that it could not possibly be made manually57.
Thus, according to the Court of Appeal, any user who inputted the words
"melbourne criminal underworld photos" and received in response a compilation
of images such as the allegedly defamatory search results appearing on page four
of Annexure A, which included some images of known criminals, some images
of the late Marlon Brando (in his role as "the Godfather"), a tram, actors
(presumably in a film about serious crime) and a solicitor, or, on another
occasion, results including images such as those appearing on page one of
Annexure A of a former Victorian Chief Commissioner of Police, a murder
victim, a crime reporter and a Google logo, "would inevitably give thought to just
54
Google Inc v Trkulja (2016) 342 ALR 504 at 510 [30], 536 [145].
55
Google Inc v Trkulja (2016) 342 ALR 504 at 596-597 [387]-[388].
56
Google Inc v Trkulja (2016) 342 ALR 504 at 537 [147] (footnote omitted).
57
Google Inc v Trkulja (2016) 342 ALR 504 at 537 [150].
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