But what if Google guesses wrong? Action for allegedly defamatory auto-complete results allowed to proceed

Search engines have, without question, made access to information much easier. It is now possible to find an answer to almost any question instantly. What happens though, if those functions return results that are claimed to be untrue and potentially defamatory?

Indeed, it is difficult to imagine a life without search engines where attempts to sensibly distil the trillions of pages on the internet and find meaningful results expeditiously would be unmanageable.

The algorithms behind search engines like Google are also now so developed that they are often able to predict what you are looking for through their auto-complete function. What happens though, if those functions return results that are claimed to be untrue and potentially defamatory?

The recent decision of Trkulja v Google LLC, involves an action in which Google is alleged to be liable in defamation for publishing search results that include images of Mr Trkulja mixed with images of convicted Melbourne criminals with text referring to him and predictions generated by Google’s auto-complete functionality. The search results also allegedly conveyed the imputation that he was a “hardened and serious criminal in Melbourne” and “such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a website that chronicles crime”.

Google had initially won an appeal that granted summary dismissal of the claim prior to filing any defence, arguing that the matter had no real prospect of success. The High Court reversed that decision and kept the action on foot.

Although the matter is still in its infancy, the fact that the High Court allowed the matter to proceed will have relevance to both search engine companies like Google and Yahoo!, but also more generally those businesses that utilise online advertising (in particular, the media).

For those entities that do utilise online advertising and are attracted to the idea of search engine optimisation, it is important to be aware of the types of auto-complete results that might be returned. This could be controlled by a limited, or very careful, use of tag words for matters other than essential information to limit the prospect that a false or disparaging message is conveyed by the results.

This is an excerpt from an article by Ian Bloemendal and Nick Josey, CLAYTON UTZ.

It appears in Internet Law Bulletin vol 25 no 5. To view the full article on Lexis Advance, click here. To subscribe to Internet Law Bulletin, email or call us on 1800 772 772.

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