What is to “publish” in the digital age? Search engines are now targets as we wake up to the fact the law says we’re publishing every time we go online.
Google’s loss in a defamation case in the Supreme Court of Victoria yesterday highlights the problems of applying existing laws on “publication” to our new online wonderland. Maybe we need some new categories.
Milorad “Michael” Trkulja claimed a Google search on his name delivered, as first result, an entry including the words “Michael Trkulja - Melbourne Crime - Underworld - Ganglands”. Searches also delivered a URL linking to a page where his photo appeared next to images of gangland figures including Tony Mokbel, some of which were captioned “Melbourne Crime”. The page referenced the unsolved shooting of Trkulja in 2004.
Trkulja reckoned all this implied he too was connected to or even part of the criminal underworld. He told the court how he’d subsequently been shunned by members of his community. In a previous similar defamation case against Yahoo!, Trkulja was awarded $225,000 damages.
Yesterday the Supreme Court jury agreed that once again Trkulja had been defamed. Google’s defence of “innocent dissemination” in publishing Trkulja’s image could no longer be relied upon once his lawyers had contacted them. Google was therefore liable. However the company wasn’t liable for publishing the URL linking to defamatory material because Trkulja had failed to correctly fill in their complaint form.
Justice Beach’s full decision has yet to be released, but I see three key lessons here for anyone publishing material online — the first of which is that “publisher” now means every single one of us.
It will come as no surprise to journalists, radio and TV presenters and other media professionals that everything we do online that’s visible to anyone else is “publication” in the full legal sense of the word. That means it’s exposed to the potential for defamation suits, contempt of court and copyright violation.
But I reckon the average citizen doesn’t think of it that way.
Much of what happens online and is now visible to others through Facebook, Twitter and all the rest is conversation. It’s ephemeral speech that was never intended to be on the record and archived and searchable forever — yet now it is.
In conversations, we don’t fire up the justice system to resolve differences of opinion or errors of fact. We engage in dialogue. We clarify. We retract. We apologise. We move on. And we forget.
Jeez, that’s a bit much, Dave! Are you sure about that, Sarah? Didn’t Julie say she went to the footy the weekend before that? Oh yeah, sorry mate.
We certainly don’t dredge up conversations from years ago and demand that everyone’s memories be expunged — not unless we want to be seen as a just that little bit obsessed.
In the Trkulja case, for example, “Melbourne Crime” was a reference to the now-defunct website from which the photos were sources. I can understand a reader’s confusion, but surely clarification, correction and an evolution of the conversation is the way to go, not the Memory Hole.
Perhaps we need a new, third category of speech for things that aren’t quite private but aren’t quite meant to be “publication” either. Or a fourth one, to cover the unexpected random coincidences thrown up by the computers’ automated algorithms.
The other two lessons from this case? One, you’re responsible for your algorithms. You can’t hide behind the excuse that the robot did it. Given the increasing use of robots for everything from publishing to assassination, that’s probably a good thing.
Two, you need to respond promptly to complaints to avoid liability. Sadly that means we’ll probably end up with better mechanisms to kill off the much-beloved Google bomb, where web links are manipulated so the search engines give unexpected results.
Two prime examples are that a Google Images search for “completely wrong” currently delivers images of Mitt Romney, and one-time presidential hopeful Rick Santorum’s sticky problem.
Corporations will doubtless err on the side of caution and take down anything the least bit controversial. Individuals too, because they’ll be even more scared by lawyers’ letters. The online world will become more risk-averse, less spontaneous. And that’s sad.