A Melbourne man whose photo was published alongside that of gangland figures including Tony Mokbel in a story about an unresolved restaurant shooting has won his legal stoush against Google in what is seen as a landmark case.
A six person jury in the Victorian Supreme Court yesterday found Milorad “Michael” Trkulja had been defamed by the images.
Trkulja claimed putting his name into Google brings up stories about the unresolved shooting which occurred in 2004, and led to the damage to his reputation and being ostracised from the community.
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While there have been similar attempts around the world to sue Google over allegedly defamatory remarks, most have failed.
Trkulja said he had never initially intended to sue Google but decided to take the search engine giant on after it did not comply with his request in 2009 for the content to be removed from its searches.
Google’s lawyers argued in court the search engine was not the publisher of the material and was only indexing the link to the website and the images in its results.
Google relied on the defence of “innocent dissemination” and argued that as a search engine it was not liable when somebody highlights defamatory material and asks for its removal.
The website that hosted the image has since been taken down independently of Google and the images or the article are no longer indexed by Google.
Trkulja said he was ”over the moon” at the decision.
”I feel great,” he told Fairfax. ”I feel vindicated. It was a David and Goliath battle, a single man standing against a giant using all money and power available to them to squash an innocent person.”
Google has asked for damages to be capped at $75,000 but Trkulja is seeking the maximum amount of $349,000.
Trkulja won a similar case against rival search engine Yahoo! in March and was awarded $225,000 in damages.
However, David Hope, partner at law firm Middletons, told SmartCompany the two cases differed as Yahoo! admitted it published the defamatory material while Google argued it was not the publisher.
“The two things I take out of this is that, firstly, it suggests the search engine is not necessarily going to be a publisher despite Yahoo! admitting it was a publisher – it is open to denial,” Hope says.
“It also confirmed that if you are the publisher, once you are on notice of defamatory material you really need to make an effort to block these things.”
Hope says the jury found once a publisher is on notice it cannot just leave defamatory material up as Google did.
Justice David Beach of the Victorian Supreme Court is expected to deliver a ruling on damages on November 12.
Google declined to comment on the case.