Australia's highest court has given the green light for a man to sue Google for defamation, after his photo appeared alongside notorious Melbourne criminal figures in image searches.
Melbourne man Milorad Trkulja, who also goes by Michael, was shot in the back in 2004 by an unknown assailant. The shooting took place amid a spate of gang related murders in Melbourne, and the ensuing coverage saw Trkulja's name and photo linked on Google searches with various criminal figures and activity.
He successfully sued the search engine giant for defamation in 2012 and was awarded $200,000 in damages, but filed a second suit (the current proceedings) in December 2013, asking that Google block his name and image in future searches.
Trkulja alleged he has been defamed by the fact his photo comes up when someone types a variety of similar phrases into Google image search, including "melbourne criminal underworld photos" and "melbourne underworld killings".
He also submitted screenshots of Google autocomplete predictions for the first part of his name — typing in "michael trk" appeared to bring up predictions including "michael trkulja criminal", "michael trkulja melbourne crime" and "michael trkulja underworld".
According to Trkulja, the image searches and autocomplete defame him by suggesting, incorrectly, that he's a "hardened and serious criminal" and an associate of notorious underworld figures.
But Google tried to get the case thrown out, arguing it had "no real prospect of success" because it didn't publish the photos, an algorithm did. It also said a regular person using Google search wouldn't assume Trkulja was an underworld figure by virtue of his photo popping up in those searches.
A Supreme Court judge ruled Trkulja's case did have a real prospect of success, and then the Victorian Court of Appeal ruled it didn't. Now, the High Court has overruled the Court of Appeal and said it does have a real prospect of success, and that the case can go ahead.
Google argued at a hearing in March this year that a range of other images of people come up in the search and they, like Trkulja, are also not Melbourne underworld figures.
The pictures included, among other things, two prominent crime journalists, a barrister dressed in a wig and gown, a solicitor, posters for the TV shows Underbelly and Animal Kingdom, a murder victim, headlines from Trkulja's earlier defamation cases against Google and Yahoo, the late American actor and director Marlon Brando, the St Kilda pier, and a Melbourne tram.
"[The pictures] have some indiscernible connection of some kind, but it is not a connection that allows you rationally or logically to draw the imputation that therefore, because I have a photograph of a Melbourne tram, that tram is a Melbourne criminal underworld figure," Google barrister Neil Young QC told the High Court in March. "That would be a nonsense."
But the High Court did not accept the argument and said the Court of Appeal was wrong to conclude that Trkulja couldn't be defamed by the image search.
"It is true, as the Court of Appeal observed, that in some of the search results ... some of the persons shown are plainly not criminals or members of the Melbourne criminal underworld," the judgement says.
"But in each of the pages on which images of such persons appear, there are also images of persons who are notorious criminals or members of the Melbourne criminal underworld coupled with images of persons, such as Mr Trkulja, whose identity is relatively unknown."
Depending on the other evidence at trial, a jury could reasonably conclude that people pictured in the search are "in some fashion opprobriously connected with criminality and the Melbourne criminal underworld", the High Court ruled.
The highly anticipated case will join a handful of other Australian cases about defamation and Google.
The search engine has previously been found to be liable for defamatory search engine content.
In October 2017, the South Australian Supreme Court upheld a ruling that Google was liable for damages to Dr Janice Duffy, who was defamed by a website called "The Ripoff Report" and had asked Google to remove the links.