Gary Hevey Gordon & Jackson 9225 8075 9225 7333 ...

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wall daubed with defamatory material could be said to be the publisher of it;
Beach J, on the other hand, expressed the view that it was open to the jury in his
case to find that Google was the publisher of the defamatory material because
the search engine operates precisely as intended by those who own it and who
provide its services. It should also be noted that in the Trkulja Case notice of
the offending material had been provided to Google Inc and Beach J found that
it was open to the jury to find that after receipt of such notice, “as infelicitous
as the letter of 22 September 2009 might have been”, the defendant did not
make out its defence of innocent dissemination.
39. The final defence contained in the Act is that of triviality, which relates to
circumstances where the publication was such that it was unlikely that the
plaintiff would sustain harm as a result 38 .
Damages
40. Damages in any action are to bear an appropriate and rational relationship to the
harm sustained by the plaintiff 39 . In the normal course of events damages for
non-economic loss are limited to $250,000 (plus CPI increases since 1 January
2006) 40 . However, if the court is satisfied in the circumstances the
publication(s) is such as to warrant an award of aggravated damages then the
figure may be exceeded 41 . Importantly, the state of mind of the defendant at the
38 Section 33
39 Section 34
40 Sub-section 35(1) – present value just over $300,000
41 Sub-section 35(2)
Gary Hevey
Gordon & Jackson
9225 8075 9225 7333