Is Michael Trkulja the Shining Light that Shows the Legal World that Websites are Actually Publishers?

The recent decision by Justice Eady in the case of Tamiz v Google Inc [2012] EWHC 449 (QB) indicated that for the purpose of defamation law in this country, websites, and in particular search engines such as Google and Yahoo, cannot be considered publishers. If they are not publishers then they cannot be held liable for the publication of defamatory material, and therefore cannot be held liable for online defamation. A relatively straightforward way of thinking, correct? A gentlemen by the name of Michael Trkulja in Australia may beg to differ.

Mr Justice Eady’s decision has caused specialist defamation solicitors, including all of us here at Pinder Reaux much consternation. However, Mr Trkulja and his case in Australia may be trail-blazing a path contrary to the approach of Mr Justice Eady in the Tamiz case.

Mr Trkulja took action against arguably the world’s two biggest search engines, Yahoo and Google for online defamation. He had a team of specialist local defamation solicitors fighting his corner. His claim was based on the fact that both Yahoo and Google’s search results, whenever his name was searched, brought up photos of well known criminals, and criminal acts. There were also articles provided that claimed expressly that he was involved in gangland crime, and the juxtaposition of a photo of him appeared to leave the discerning reader in no doubt as to what Mr Trkulja was all about. These images are articles had emanated from a defunct website but were still being shown on the search engines. In summary he was suffering online defamation. Crime is something which Mr Trkulja, as a model citizen and high standing person in the Australian Yugoslav community, had no involvement with.

During the proceedings, Yahoo eventually admitted publishing the defamatory articles. However, their on-going defence was that the defamatory sting of the articles was not to the extent Mr Trkulja claimed, and therefore was not online defamation. The Judge disagreed and awarded Mr Trkulja substantial damages. This was the first coup for Mr Trkulja. His specialist team of defamation solicitors had forced Yahoo to admit they were publishers of the defamatory material, and His Honour Justice Kaye adjudged that Mr Trkulja was the victim of online defamation.

Alongside this Mr Trkulja also brought a similar claim against Google, for the same articles, again for online defamation. Google maintained that they were not publishers, and ran their defence accordingly. Inevitably, the Judge found against them, deciding that Mr Trkulja was the victim of online defamation, with damages to be ascertained in due course at a later date.

As much as Tamiz had specialist defamation solicitors thinking one thing, Mr Trkulja’s case will now make us all think differently, and his judgment will reverberate around the legal world. Specialist defamation solicitors have repeatedly argued that websites and search engines are publishers, for the same reason that newspapers and magazines are, and therefore should be liable for online defamation they publish. The law has not to date not necessarily agreed.

Often there is synergy between Australian and English law on the grounds of the connection between the countries founded by the Commonwealth. Specialist defamation solicitors and the public at large must now watch this space carefully, as it will most likely breed the future for online defamation cases. The High Court may well find itself receiving substantial representations on future cases regarding online defamation on the basis of Mr Trkulja’s judgment. I know that we at Pinder Reaux, will make the best use of this judgment when making a claim for online defamation on behalf of our clients.

John Spyrou

Head of Internet and Media Law @ Pinder Reaux

Pinder Reaux & Associates