// This Op/Ed piece comes to us from CGCS Young Scholar Ilyssa Yousem, a junior at Bryn Mawr College, majoring in philosophy with a concentration in peace and conflict resolution. Edited by Media Wire Fellow Corey H. Abramson.
//The CGCS Young Scholar program is a recent initiative of the CGCS Media Wire that gives young media-minded writers a platform to hone their writing and research skills and host contemporary work on current affairs.
Googled: False Innuendos and A Defamation Lawsuit
The Supreme Court of Victoria recently ruled in favor of Milorad “Michael” Trkulja’s defamation case against Google. In the suit, Trkulja claimed that Google was liable for damages caused by image indexing.
In June of 2004, Trkulja was shot in the back by a masked man while eating at a restaurant in the suburbs of Melbourne. Though the non-fatal shooting was not linked to criminal activity, Google Images search results showed pictures of alleged criminals in close proximity to Trkulja’s name listed below. Trkulja argued that the pictures caused the public to believe he was a criminal, and as per the BBC, Trkulja also took issue with the term “hitman” used to describe his shooter.
Trkulja believed that the term “hitman” created a “false innuendo” suggesting that perhaps a rival criminal had hired someone to murder him. Suffering from emotional distress after being falsely associated with alleged criminals for over three years, Trkulja asked Google to change its results. The ICT giant refused, however, arguing that image search results were based on automated software programs, not the company’s direct actions. Trkulja’s lawyers then filed suit.
Google claimed that because the company is not, itself, a publisher, it could not be liable for defamation. The Australian Court, however, ruled that Google’s defense of “innocent dissemination” was valid only until Trkulja’s complaint was processed, making the company liable for not removing the search results when asked to do so. Unfortunately, Trkulja forgot to provide the web address of the content of which he disapproved on his complaint form – a mistake that ruined his case.
Though Trkulja lost the suit against Google based on technicalities, he had previously won a nearly identical case against Yahoo in which Yahoo was ordered to pay Trkulja $250,000 in damages. In the end, Trkulja told reporters that he felt his reputation had been vindicated by both of his cases, thereby preserving the honor of his family’s name.
The United States’ Bill of Rights in Comparison
The First Amendment makes it much harder for plaintiffs to win defamation cases in the United States, as the freedoms of speech and the press traditionally side with the defendant. In addition to First Amendment issues, however, many details such as the extent of truth and the intent to libel must be considered in a case like this. For private figures in public affairs, as with Trkulja’s case, American law would require that Trkulja not only prove that Google intended to harm him, but also that the data collected by the search engine (which is gathered based on a public user base’s activity) was wrong. This would be quite a tall order for Trkulja’s lawyers.
Unlike the United States, Australia has no explicit freedom of speech right. It was not until 1992 in Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd v Commonwealth (ACTV), a case that protected a news broadcaster’s political free speech,that the issue was specifically mentioned in Australian law. However, in the later Lange v Australian Broadcasting Corporation decision, the High Court made it clear that freedom of speech is not absolute. That is to say, the Australian courts have decided that citizens are allowed to criticize government and express their opinions publicly to a point – such criticism must stop before it harms others and/or incites hatred, especially against the government.
Russia Offers Another Alternative
Russia’s freedom of speech laws are similar to Australia’s in the sense that they are dependent on the government. Despite the fact that Russia’s Constitution disallows censorship, the Russian government has essentially incorporated self-censorship in the last decade by purchasing the most influential newspapers and media sites in the country.
In July 2012, for instance, Russia’s Act for Information has allowed the government to shut down websites, such as pornography sites, pro-suicide sites, and pro-drug sites, which could potentially harm the innocence of children.
While cases like Trkulja’s are admittedly more complex than a simple question of free speech, I believe the variability in human rights laws from country to country (such as“freedom of speech”) may explain why Americans have a hard time wrapping their heads around Google’s loss. We must remember that although the U.S., Australia, and Russia use the same terms for “freedom of speech,” the terminology one may be familiar with does not always resonate abroad.
In America, edgy books like Fifty Shades of Grey are not only published, but they are best sellers; controversial websites like reddit.com (the self described “Front Page of the Internet”) not only exist, but are visited by millions of Americans daily; media that criticizes a domestic government (like The Daily Show with Jon Stewart) is not only prevalent, but Emmy-winning.
Freedom of speech is widely regarded as one of the cornerstones to personal autonomy. The United Nations’ Universal Declaration of Human Rights states, “freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.” The ability to express ourselves and learn from others allows us to grow into knowledgeable and articulate beings. Without being exposed to ideas with which we do not agree, we would have a much harder time getting along with others and getting to know ourselves.
Editor’s Note: Cases of contradicting international policies on freedoms of speech and privacy like these are a prime example of why MacKinnon’s call for a globally recognized audit for ICT companies on human right’s issues is so necessary. We’ll try to explore these issues further in the future.