The Ordinary, Reasonable Search Engine User and the Defamatory Capacity of Search Engine Results in Trkulja V Google Inc

Abstract

The liability of search engines operators for defamation is a contentious issue that has engaged the attention of courts around the world. The principal focus of such cases is ordinarily the issue of whether the search engine is a publisher for the purposes of defamation law. In an upcoming appeal in Trkulja v Google Inc, the High Court of Australia will decide its first case on a search engine operator's liability for defamation but the principal issue will not be publication but rather defamatory capacity. In determining whether search results are capable of conveying a defamatory meaning, the High Court of Australia will have to grapple with whether it should answer this question by reference to a new, hypothetical referee for the internet age - 'the ordinary, reasonable search engine user'.

Keywords: Tort law, Defamation, Internet intermediaries, Search engines, Publication, Defamatory capacity, Australia

JEL Classification: K10, K30, K13