As Google continues to wrap its tentacles around more and more aspects of everyday life, there is a growing number of cases in courts around the world that are testing the legal limits of the search engine’s activities.

In 2013, Google survived a near miss by convincing Australia’s top court that it should not be responsible for the misleading advertising conduct of its AdWords customers. But, in recent weeks, Google suffered a loss in the ongoing war over the controversial “right to be forgotten”.

The Right to Be Forgotten

The basic idea behind the right to be forgotten is that individuals should have the autonomy to determine the progress of their lives, without continuous reminders of past actions that remain documented through platforms such as the Google search engine. The concept raises interesting questions about privacy, open debate and the ownership of information.

Trkulja’s Fight Against Googliath

One person crusading for the right to be forgotten is Milorad Trkulja, who for some years has been pursuing defamation claims against Google in Australian courts. Trkulja is essentially applying for Google to erase his name from their search engine results relating to Melbourne’s criminal underworld.

Trkulja filed a writ and statement of claim in the Supreme Court of Victoria, alleging that Google defamed him by publishing information generated through its search engine. Google did not bother to file a defence to this claim. Instead, Google attempted to have the claim set aside on the basis that Trkulja’s case had no real prospects of success.

A party arguing that a claim has no prospects of success is expected to meet a very high threshold. They must convince the court that, if the matter went to trial in the usual manner, there is a high level of certainty about what the final outcome would be.

Google presented three reasons why it considered that Trkulja’s defamation claim was destined to fail:

1. Google argued that it did not publish the relevant materials and so could not be considered a publisher for the purposes of defamation law;

2. Google submitted that the search engine results in question did not defame Trkulja; and

3. Google said that it is entitled to immunity from Trkulja’s legal action because it is the operator of a search engine.

On 17 November 2015, Justice McDonald handed down the decision of the Supreme Court, rejecting all three of Google’s claims. Justice McDonald observed that cases have been decided in Australia and other countries that are contrary to Google’s claim that it is not a publisher.

The Judge also thought that Google “fell well short” of showing that Trkulja had no hope of successfully establishing that the materials were defamatory if the case went to trial. Finally, Justice McDonald described Google’s third argument as a request for the court to confer immunity “out of thin air”. His Honour said that the question of whether the operator of a search engine should be immune from legal action is best left to the Parliament, not the courts.

Where Does This Leave Us?

It is important to remember that this was an interlocutory (or interim) decision about a procedural matter. The Supreme Court of Victoria is yet to determine the substantive issues in Trkulja’s case against Google.

Furthermore, it is possible that Google may appeal from the decision of Justice McDonald, although it can be difficult to appeal from interlocutory procedural decisions like this.

Nevertheless, the case is an initial loss for Google in the multi-front war to minimise legal responsibility for its ever-growing range of activities. The Supreme Court of Victoria has made clear that Trkulja’s defamation claim in support of the right to be forgotten may have legs – and so now Google will have to fight it. Justice McDonald ordered Google to file its defence to Trkulja’s claim within three weeks.

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Thomas Kaldor

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