Australia: Update on the liability of internet search engines for defamatory publications: Trkulja v Yahoo! Inc

Last Updated: 31 March 2012
Article by David Hope, Baron Alder and Christien Corns

Earlier this month the Supreme Court of Victoria ordered internet search engine Yahoo! Inc to pay damages of A$225,000 to a prominent member of the Australian Yugoslav community after a jury found he had been defamed by an article appearing on a website entitled "Melbourne Crime" (Article). The Article could be viewed by anyone who accessed the Yahoo! 7 search engine and searched the plaintiff's name.

As well as depicting images of well known criminals, the Article showed the plaintiff's face, and commented that, among other things, the plaintiff had been shot by a hit-man.

The jury found that the Article carried two imputations about the plaintiff, including that he was so involved in Melbourne crime that his rivals had hired a hit man to kill him.

In its defence, Yahoo! Inc admitted that subject to the plaintiff establishing at the trial that any person had downloaded and read the Article using the Yahoo! 7 internet search engine, it admitted that it had published the Article to any such person.

Yahoo! Inc's position at trial was therefore in contrast to its initial reaction to a letter from the plaintiff's solicitors (before proceedings were commenced) in which the plaintiff demanded that Yahoo! Inc remove all copies of the Article from their search engine. At that stage, Yahoo! Inc denied responsibility for the images in the Article "which, by being linked through algorithmic search, appeared on the Yahoo! 7 search engine", and suggested that the plaintiff contact the operators of the "Melbourne Crime" website to have the Article removed.

Justice Kaye of the Supreme Court found that the Article was accessible through the Yahoo! 7 internet search engine for about 12 months before steps were taken to ensure that internet access to the Article could not be obtained through the Yahoo! 7 search facility.

At the trial, Yahoo! Inc argued that, among other things, the Article did not carry the imputations for which the plaintiff contended, and that the plaintiff had not been as aggrieved by the Article as he in fact alleged.

Ultimately, a jury found that the plaintiff had been defamed, and the Judge considered that, among other things, "the fact that the material remained available through the defendant's search engine for such a period of time, without being removed, could only have served to increase the damage to the plaintiff's reputation".

In awarding A$225,000 the Judge said that as he is obliged to do by the Defamation Act (Vic), he took into account the fact the plaintiff is also suing another entity, Google, in a separate proceeding in relation to the same Article, however he accepted the plaintiff's evidence that he first became aware of the Article through the Yahoo! 7 search engine, which was the initial cause of most of his distress. The Judge also considered the so called "grapevine" effect, acknowledging that the Article reached a wide audience resulting in widespread damage to the plaintiff's reputation, particularly as the plaintiff was very well known in the local Yugoslav community.

It remains to be seen whether Google will also admit that it "published" the Article, however the case illustrates the potential perils of internet publishing and the importance of quickly investigating complaints made by people aggrieved by publications accessible through your company's online platforms.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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