In Trkulja v Google Inc LLC & Anor (No 5) [2012] VSC 533 in the Supreme Court of Victoria the jury decided that the plaintiff established an entitlement to damages against Google Inc for a defamatory imputation in a photo that “the plaintiff was so involved with crime in Melbourne that his rivals had hired a hit man to murder him”.

The plaintiff’s case against Google Inc, in respect of an article, failed because Google Inc established the defence of innocent dissemination for the whole of the period of publication. The plaintiff’s case against Google Australia failed.

The trial judge rejected Google Inc’s application for judgment notwithstanding the jury’s verdict.

He awarded damages of $200,000 against Google Inc.

Google Inc’s first submission in support of its application for judgment notwithstanding the jury’s verdict was that, as a matter of law, Google Inc was not a publisher of the images.

Google Inc argued that to establish its liability for publication the plaintiff was required to lead evidence showing, first, Google Inc was in some degree accessory to the communication of the material complained of and second, that Google Inc had the required mental element, namely, an intention to publish the Images matter.

Judge Beach said:

“The plaintiff accepted (correctly in my view) that he had to establish that Google Inc intended to publish the material complained of. While much was made by counsel for Google Inc of the fact that there was no human intervention between the request made to the search engine and the publication of search results, and of the fact that the system was “fully automated”, the plaintiff’s point was that Google Inc intended to publish everything Google’s automated systems (which systems its employees created and allowed to operate) produced. Specifically, the plaintiff contended that Google Inc intended to publish the material complained of because while the systems were automated, those systems were the consequence of computer programs, written by human beings, which programs were doing exactly what Google Inc and its employees intended and required. On this basis, it was contended that each time the material complained of was downloaded and comprehended, there was a publication by Google Inc (the operator and owner of the relevant search engines), as intended by it. So it was submitted by the plaintiff that Google Inc was a publisher throughout the period in respect of which complaint was made…

The question of whether or not Google Inc was a publisher is a matter of mixed fact and law. In my view, it was open to the jury to find the facts in this proceeding in such a way as to entitle the jury to conclude that Google Inc was a publisher even before it had any notice from anybody acting on behalf of the plaintiff. The jury were entitled to conclude that Google Inc intended to publish the material that its automated systems produced, because that was what they were designed to do upon a search request being typed into one of Google Inc’s search products. In that sense, Google Inc is like the newsagent that sells a newspaper containing a defamatory article. While there might be no specific intention to publish defamatory material, there is a relevant intention by the newsagent to publish the newspaper for the purposes of the law of defamation…

in my view, it was open to the jury to conclude that Google Inc was a publisher – even if it did not have notice of the content of the material about which complaint was made. Google Inc’s submission to the contrary must be rejected. However, Google Inc goes further and asserts that even with notice, it is not capable of being liable as a publisher “because no proper inference about Google Inc adopting or accepting responsibility complained of can ever be drawn from Google Inc’s conduct in operating a search engine”…

This submission must also be rejected. The question is whether, after relevant notice, the failure of an entity with the power to stop publication and which fails to stop publication after a reasonable time, is capable of leading to an inference that that entity consents to the publication. Such an inference is clearly capable of being drawn in the right circumstances (including the circumstances of this case). Further, if that inference is drawn then the trier of fact is entitled (but not bound) to conclude that the relevant entity is a publisher. Google Inc’s submission on this issue must be rejected for a number of reasons, the least of which is that it understates the ways in which a person may be held liable as a publisher.”