A search-engine works by cataloguing content available on the internet by third-party publishers.
Some of those third-party publishers may indeed by subsidiary companies of the search-engine itself, but by and large the content is produced and hosted by publishers and web-hosting companies that have nothing to do with the search-engine company indexing the material for their search-engine results.
This process is largely automated through the use of web-crawler bots and ever-increasingly technologically proficient search result algorithms. All serving one single purpose: To give you, as the end-user, the most relevant and useful search-results possible.
Like a phone book, or a street directory, search-engines are hardly responsible for the content they index. It’s not like they’re creating it or publishing it, they merely catalogue it so that if others are searching for the material, they might better find it.
At least that’s what common sense would dictate.
Today the Victorian Supreme Court disagreed, holding Yahoo liable for cataloguing a website in its search-results to the tune of $225,000 AUD ($235,000 USD).
The landmark case between Michael Trkulja and Yahoo centered over Yahoo’s search results displaying a link to the now-defunct website, ‘Melbourne Crime: A journey into the Melbourne Underworld’.
This website in turn had a page on it that reprinted a Herald Sun (a local Victorian newspaper) article on a shooting involving Trkulja.
This article is still online and published ‘as is’ by the Herald Sun, dated November 20th, 2007.
To put things into perspective here, the Herald Sun published a news story about a shooting involving a hitman and a website about crime in Melbourne reproduced said article on their own website. Yahoo, a search-engine provider who catalogues content on the internet then indexed the ‘Melbourne Underworld’ site and Trkulja then sued Yahoo for publication of the offending material.
Neither the Herald Sun nor the owners and operators of the Melbourne Underworld website had legal action taken against them.
In his lawsuit, Trkulja pleaded three imputations (statements attributing something dishonest):
- the plaintiff is a criminal
- the plaintiff was so involved with crime in Melbourne that his rivals had hired a hit man to murder him
- the plaintiff is such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a Web site that chronicles crime in Melbourne.
In a catastrophically stupid move, Yahoo
pleaded that, subject to the plaintiff establishing at trial that any person had downloaded and read the matter using the Yahoo! 7 internet search engine, they admitted that they published the matter to such person.
In order to establish that ‘any person had downloaded and read the matter’ on Yahoo, Trkulja simply supplied two witnesses who testified as such.
Thus accepting liability for entire publication of an article that was hosted on a website that had nothing to do with Yahoo, that in turn merely reproduced a newspaper article, the matter then turned to the three imputations listed above.
The jury rejected the first imputation because they were ‘not satisfied that the material conveyed‘ that Trkulja was a criminal.
They were however convinced that the second and third imputations held merit. That being the implication that Trkulja ‘was so involved with crime in Melbourne that his rivals had hired a hit man to murder him‘ and that he ’is such a significant figure in the Melbourne criminal underworld, that events involving him are recorded on a web site that chronicles crime in Melbourne‘.
Despite not having authored, published or hosted the material themselves, Yahoo was today ordered to compensate Trkulja $225,000 in damages.
A decision that will no doubt have far-reaching effects on how search-engines operate in Australia.
What Yahoo’s lawyers were doing I have no idea but accepting publication of an article they indexed on their search engine? Has Justice Stephen Kaye or Yahoo’s lawyers even ever used a search-engine before?!
The original article by the Herald Sun describes the 2004 shooting incident involving Trkulja (alias Milorad Trkulja) as follows;
Former music promoter Michael Trkulja was shot in the back by a hitman wearing a balaclava while dining at a St Albans restaurant in June 2004.
A Victoria Police document reveals detectives dropped the investigation because of a lack of evidence.
But Mr Trkulja, 58, claims he now knows the identity of the hitman and those who hired him.
He says he has passed the names to police.
“He (the hitman) was offered $10,000 to kill me. I know who sent him and they know that I know who they are,” Mr Trkulja told the Herald Sun.
Is it really such a stretch to suggest that $10,000 hired hitmen has something to do with Melbourne’s criminal underworld?
Especially when you consider that the same Herald sun also named Trkulja as ‘an associate of Mick Gatto‘ in 2010.
Who’s Mick Gatto you ask?
Domenic “Mick” Gatto (born 6 August 1955) is an Italian-Australian criminal and is known for his involvement in the Melbourne underworld.
Yet somehow cataloguing a website for a search-engine that merely reproduced a news article on an apparent assassination attempt on an associate of Mick Gatto, prominent member of the Melbourne underworld, involving hitmen and $10,000 bounties is defamation…
Again, I have absolutely no idea what Yahoo’s lawyers Allens Arthur Robinson were doing, but I can only surmise that they must have been asleep at the wheel.
Otherwise if anyone can explain to me how a search-engine is liable for indexing a third-party website (and a snippet of the website at that), that merely reproduced a news article published by yet another third-party, I’m all ears.
Looking forward, it’s noted that Trkulja is also suing Google for indexing the ‘Melbourne Underworld’ in their own search results. No doubt Google will be analysing today’s Melbourne Supreme Court ruling quite closely as they’ll have to defend themselves on the same allegations Yahoo failed to defend themselves against.
The Trkulja vs. Google case is set to kick-off in early June of this year.
Personally if I was running a search engine that was accessible in Australia I’d be seriously considering pulling out of the market until this nonsense was cleared up. I’m not sure whether Yahoo can appeal today’s decision but you’d want to hope that they are able to that they do.
And this time y’know, actually play the role of a search-engine rather than publisher of material they never published, authored or hosted?
The scenario as it stands now means that anybody can approach a search-engine available in Australia and demand that material they think is defamatory be removed.
Trkulja himself attempted this when he got in touch with Yahoo in late 2009 and ‘demand(ed) (inter alia) that the defendants (Yahoo) immediately remove all copies of the material from their search engine’.
Standard operating procedure for search-engines is to protect the integrity of their search-results and refuse to remove anything without a court-order against the allegedly defamatory material (not the search-results themselves).
The defendants responded by a letter dated 3 December 2009, stating that they did not accept responsibility for the images, which, by being linked through an algorithmic search, appeared on the Yahoo! 7 search engine.
The defendants suggested that the plaintiff should contact the operators of the Melbourne Crime web site directly, in order to have the material removed.
After the content is removed, typically within a few months (worst case scenario) the content is removed automatically from search-engine results as it no longer exists.
Furious at this response and alleging that ‘the material could have been easily eliminated from the defendants’ search engine by using a device known as an “abuse filter”‘ (whatever that is), Trkulja then went after Yahoo themselves and here we are.
An Australian Supreme Court decided to hold a search-engine liable for content they never published, authored or hosted. God forbid what appears in search-results are now dictated to Australian internet users by self-appointed defamation police.
If search-engines operating in Australia simply decide it’s easier to deindex material anyone complains about, then what? Even Stephen Conroy’s once proposed internet filter never held that much censorship power.
Words simply fail me when I try to further elaborate on the utter stupidity and technological ignorance evident in today’s decision.
The entire judgement against Yahoo can be viewewd over at the Victorian Supreme Court website.