Milorad Trkulja

It seems Google is having something of an identity crisis in the Australian courts.

The Sydney Morning Herald reports that Milorad Trkulja, who was shot in the back in a restaurant during the height of Melbourne’s gang wars, was dismayed to discover that searching for his name on Google after the incident would result in images of underworld figure, Tony Mokbel. (Mokbel being a notorious Melbourne mafia figure, extradited back to Australia from Greece in 2008 to face murder charges.) The mix-up was due to an erroneously labelled photo on the website Melbourne Crime.

Mr Trkulja sued Google for defamation after his request to remove the content from the search results was not complied with. He was similarly successful in suing Yahoo.

Earlier this year, Google funded an advocacy paper that claimed that the internet giant’s search results were analogous to those of a newspaper or magazine, making the corporation a publisher. Academic Eugene Volokh wrote in the report that,

“Google, Microsoft’s Bing, and Yahoo! Search exercise editorial judgment about what constitutes useful information and convey that information—which is to say, they speak—to their users. In this respect, they are analogous to newspapers and book publishers that convey a wide range of information from news stories and selected columns by outside contributors to stock listings, movie listings, bestseller lists, and restaurant guides.”

At the time, Noam Cohen speculated in the New York Times that Google was emphasizing this interpretation in order to ward off charges of anti-competitiveness for favoring Google’s own products and services over others in search results.

When it comes to Mr Trkulja, however, Google’s lawyers argued that they were the victims of ‘‘innocent dissemination’’, and that,

“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…A Google spokesman said in response to the ruling: “Google’s search results are a reflection of the content and information that is available on the web. The sites in Google’s search results are controlled by those sites’ webmasters, not by Google”.”

As Cohen wrote,

“There are good reasons for Google to want to be considered a mere connector; like other Internet companies, it can beg off responsibility for what is transmitted by its users. That is the useful stance when it comes to rebutting claims of copyright infringement or libel.”

Claims such as those of Mr Trkulja, clearly. Google did not make the original mistake in labeling the photo incorrectly, but once they were notified, the judge for Mr Trkulja prescribed the responsibilities of a traditional media outlet to Google not to continue to disseminate libelous material.

Although this case won’t have much impact in the United States, it’s hard to say how long Google will be able to have it both ways.