Redefining defamation in the online age

Business Spectator 16 November 2012

Google found itself in hot water this month, after a Melbourne Supreme Court jury found the search giant guilty of defaming Melbourne resident Milorad Trkulja through its search engine.

The ruling is set to forever change the meaning of defamation in Australia. The law,once reserved for incendiary media commentary, is now seemingly relevant to all internet technologies.

In awarding Trkulja $200,000 in damages, the court has reinforced the dictum that even some of the world’s largest companies can no longer use emergent technologies as an excuse against enduring laws.

Internet search engines technologies created and maintained by engineers working in some of the world’s largest multi-nationals. It’s always been accepted that companies are responsible for what their engineers create and society anticipates that engineered systems work for societies benefit and "do no harm". Defective products and services are required to be fixed when a problem has been identified and internet technologies are no different from any other.

However, Google begged to differ when they refused to take down Trkulja’s picture from their search engine.

They continued to publish this defamatory material between October and December 2009, despite receiving a letter from Trkulja's lawyers asking for its removal.

Trkulja's ended up taking the search giant to the Supreme Court ad his persistence now stands vindicated.

In determining the company’s penalty, Justice David Beach identified that Google's search engine published the defamatory material because it was designed to do so and therefore "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.”

It’s a surprise that Google didn’t see such an outcome coming. This wasn’t the first time Trkulja had sued – and won – against a search engine.

Earlier this year Yahoo!7 Inc was found guilty of defaming Mr Trkulja because the Yahoo!7 search engine returned with his picture when the search phrase 'Melbourne Crime' was used. Yahoo!7 was ordered to pay Mr Trkulja $225,000 in damages.

Both of these court cases are important because their outcomes are likely to set a precedent that will be adopted internationally.

Australian courts have a history of not accepting arguments put by large international companies about their responsibilities for what appears on internet websites. Both the judge and jury saw through Yahoo and Google’s arguments that they should be treated differently to other organisations that publish material on the internet.

After all, search engine query results could surely be considered as some form of publication.

Perhaps the giants would have suffered less if they had paid attention to a landmark Australian defamation ruling in 2002.

In 2000, Joseph Gutnick, another Melbourne resident, successfully sued Dow Jones & Co in the Supreme Court of Victoria. This court case was of considerable note because the offending article was placed on a Dow Jones website and that the server hosting the website was located in the US.

In defence, Dow Jones claimed the article was published in the US and therefore any defamation action should take place in the US.

The Supreme Court of Victoria did not agree with the defence, deciding the internet is an online publishing network and under common law defamatory matter is published in each place in which it is read, seen or heard.

In 2002, the Australian High Court upheld the decision after an appeal by Dow Jones.

The outcome from the Dow Jones case set an international precedent: it identified there is no defence in arguing that the internet should be treated differently to other forms of media. The Google and Yahoo!7 cases have now added to the Gutnick outcome by including search engine query output as published material and therefore subject to defamatory laws applied to other forms of media.

What is interesting is that Google and Yahoo!7 decided to fight the matter in court having earlier ignored Mr Trkulja's written requests for relief from what he considered was a defamatory situation. Large internet organisations won’t win friends by forcing David and Goliath court cases.

Society expects companies to have a process to deal with customer complaints and to act in good faith when a customer identifies a problem. Should large multinationals operating on the internet be treated any differently to any other international company operating in Australia? Should technology be used as an excuse not to comply with Australian law?

We should expect Australian courts to provide clear and unequivocal guidance that international companies operating on the internet must adhere to Australian law and technology should not be used as an excuse. Regulation of the internet is happening; slowly but surely. 

Mark Gregory is a Senior Lecturer in Electrical and Computer Engineering at RMIT University