Our Response To Yet Another Bogus Legal Threat From Australia: Go Learn Some Law
from the not-how-it-works dept
So... you may recall that, back in December, we received and responded to a ridiculous and bogus legal threat sent by one Milorad "Michael" Trkulja from Australia. Mr. Trkulja had sent the almost incomprehensible letter to us and to Google, making a bunch of claims, many of which made absolutely no sense at all. The crux of the issue, however, was that, back in November of 2012, we had an article about a legal victory by Mr. Trkulja against Google. The issue was that when you searched on things like "sydney underworld criminal mafia" in Google's Image search, sometimes a picture of Trkulja would show up. His argument was that this was Google defaming him, because its algorithms included him in the results of such a search and he was not, in fact, a part of the "underworld criminal mafia."Either way, back in 2012 we wrote about that case, and Trkulja was upset that a comment on that story jokingly referred to him as a "gangster." Because of that, Trkulja demanded that we pay him lots of money, that we delete the story and the comments and that Google delist all of Techdirt entirely. Immediately, we pointed out in our response: the comment is not defamatory, the statute of limitations had long since passed if it was defamatory, as an American company we're protected by Section 230 of the CDA, and even if he took us to court in Australia, we're still protected by the SPEECH Act. Finally, we suggested that perhaps he chill out and not care so much about what an anonymous person said in the comments of an internet blog over three years ago -- especially when many people consider it a compliment to be called "a gangster."
We had hoped that this would be the end of it, but apparently it is not. A few weeks back, we received the following, absolutely bogus legal threat from an Australian lawyer by the name of Stuart Gibson, who appears to work for an actual law firm called Mills Oakley. The original threat from Mr. Trkulja could, perhaps, be forgiven, seeing as he almost certainly wrote it himself (again, it was incomprehensible in parts, and full of grammatical and typographical errors). Our response was an attempt to educate Mr. Trkulja against making bogus threats.
However, now that he's apparently wasting money on a real lawyer like Gibson, we will address the rest of our response to Gibson: Your letter is ridiculous, censorious and not even remotely applicable. Going to court over this will make you and your client look extremely foolish. But let's dig in, because Mr. Gibson seems to think that blustery bullshit will scare us off. He's woefully misinformed on this.
First off, if you send a legal threat and say "NOT FOR PUBLICATION" at the top, it's tough to take you seriously, because such a statement is meaningless. We have no contractual agreement not to publish such information, and if you send us a bogus legal threat, we are damn well going to publish it:
The matter that you have published conveys false and defamatory meanings including (but not limited to) the following:Let's go through these one by one. First off, we never said that Mr. Trkulja is a gangster. In fact, in both of our previous stories about him, we noted that his concern was over being called a gangster when he was not one. To claim otherwise is Mr. Gibson lying in his threat to us. As a suggestion, lying in your legal threat letter is not a very good idea.None of these meanings is defensible. Our client is not a criminal and has never been a gangster nor associated with such persons. Accordingly there is no factual basis for the imputations published.
- Our client is a gangster;
- That our client by virtue of his legal claims is incompetent and unfit to be a litigant;
- That our client by virtue of his legal claims is a ridiculous litigant;
- That our client is a criminal and a participant in organised crime;
- That our client is unfit to be a litigant
Second, at no point did we state that Mr. Trkulja was incompetent or unfit to be a litigant. We merely published his own words -- admittedly including his misspellings, grammatical errors and general confusion -- and our responses to them. If Mr. Gibson thinks this implies that his client is unfit to be a litigant, perhaps he should check his own biases.
Third, again, Mr. Gibson seems to be assuming the claim. We did say that the threat against us was ridiculous -- an opinion we stand by. But we did not say he was a "ridiculous litigant." Also, "ridiculous" is a statement of opinion and even in nutty Australia, "honest opinion" is not defamation. And it is our "honest opinion" that the threat is ridiculous.
Fourth, this is a repeat of the first claim. It was false the first time, and it's still false. Repeating a false claim may allow Mr. Gibson to add to his billable hours, but doesn't seem like particularly good lawyering.
Fifth, this is a repeat of the second claim. See point four above. And point two above.
So let's be clear: we did not say that Mr. Trkulja was a gangster. We said, in our honest opinion, that he won a lawsuit the results of which we disagree with, and that his legal threat to us was ridiculous. This is all perfectly reasonable and protected free speech. Second, we posted Mr. Trkulja's own words which, again in our honest opinions, do show the "ridiculousness" of his threat to us in that it was filled with grammar and spelling errors and was, at points, (again, in our honest opinion) incomprehensible gibberish.
Mr. Gibson, then suggests that arrogance is somehow defamatory:
Moreover your commentary that still resides on your website is an arrogant, false and poorly researched piece for the following reasons:First off, I may not be an expert on Australian defamation law, but I can tell you I find it difficult to believe that "arrogance" or "poorly researched" information is defamatory there. It certainly is not defamatory in the US, and, furthermore, Mr. Gibson, you are wrong that it was poorly researched. It was well researched and backed up with a great amount of detail -- details I will note your own threat letter to us appears to be lacking. And I'm sorry if we come off as arrogant to you, but we're allowed to speak our minds.
- The reference to "gangster" is not "totally innocuous". The reference is grossly defamatory and indefensible. One could not conceive a more defamatory reference than that. It may be a throwaway line in the United States but it is certainly not in this jurisdiction.
- Judgments against US companies especially those resident in California are enforceable particularly monetary judgments.
- You are not protected by the Speech Act.
- This firm has enforced numerous judgments against corporations in your jurisdiction.
- Your reference to "free speech" is absolute nonsense. Speech may be free but it is also actionable.
- You did publish the comment. Under Australian defamation law, you have a duty as a moderator to moderate third party comments. If you do not and refuse to take action when given notice, you are liable.
Next, Mr. Gibson, you "could not conceive a more defamatory reference" than calling someone a gangster? Really, now? Because I'm at least moderately familiar with some Australian insults and many of them seem way, way worse than "gangster" -- which, again I will remind, you we never called your client (and, in fact, correctly noted that he was upset at someone calling him a gangster). And, yes, it is innocuous. No one cares that someone anonymously in a blog comment jokingly called your client a gangster. It was harmless as is fairly clearly evidenced by the fact that your client didn't even notice it for over three years.
Next, I'll note that for all your talk of enforcing Australian monetary judgments in California, you don't name a single one. And, you're wrong, because the SPEECH Act absolutely does apply, and you'd be exceptionally foolish to test this, though of course that is your decision to make. The text of the SPEECH Act is pretty explicit, first about when defamation rulings are enforceable in the US and (clue time!) it doesn't count if the statements wouldn't be defamatory in the US:
a domestic court shall not recognize or enforce a foreign judgment for defamation unless the domestic court determines that the exercise of personal jurisdiction by the foreign court comported with the due process requirements that are imposed on domestic courts by the Constitution of the United States.Second, the law is also explicit that a service provider, such as us (in reference to comments published by readers on our site), if protected by CDA 230 in the US, would be similarly protected from foreign judgment:
a domestic court shall not recognize or enforce a foreign judgment for defamation against the provider of an interactive computer service, as defined in section 230 of the Communications Act of 1934 (47 U.S.C. 230) unless the domestic court determines that the judgment would be consistent with section 230 if the information that is the subject of such judgment had been provided in the United States.I recognize that you're an Australian lawyer, not a US one, but I would suggest doing at least a tiny bit of research into the caselaw on Section 230 in the US. You will quickly learn that we do qualify as a service provider and that, no, we are not liable for statements in the comments. And, hell, even if we were, and even if the comments were defamatory under US law (which they're not), the statute of limitations on those original comments is long past anyway.
And, yes, in case you still have not read the SPEECH Act, the legal burden will be on you here:
The party seeking recognition or enforcement of the foreign judgment shall bear the burden of establishing that the judgment is consistent with section 230.Good luck with that.
In case you still decide to ignore the actual text of the law, you can also go digging through the legislative record on the SPEECH Act, in which it was made explicit that the law was designed to protect against such forms of "libel tourism."
The purpose of this provision is to ensure that libel tourists do not attempt to chill speech by suing a third-party interactive computer service, rather than the actual author of the offending statement.You can claim the law doesn't apply, but you are wrong. The text is clear. You can claim that you have won judgments or monetary awards in the past. And perhaps you have, but if you try to move against us, you will be facing the SPEECH Act and you will lose.
So, given all of the above, we will not be undertaking any of your demands. We will not apologize as we have nothing to apologize for. We will not retract anything, as we did not make any false or defamatory publications. We will not remove anything from our website. We will not pay your client anything, whether "reasonable costs" nor "a sum of money in lieu of damages."
Instead, we will tell you, as we did originally, to go pound sand and to maybe think twice before making bogus legal threats that you cannot back up.
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Filed Under: australia, cda 230, comments, defamation, free speech, milorad trkulja, opinion, section 230, speech act, stuart gibson
Companies: mills oakley
Reader Comments
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If at first you don't succeed, fail fail again
If nothing else they could have found out that one of the quicker ways to get their letter made public was to try and claim that TD wasn't allowed to make it public, might have saved them a little embarrassment.
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Re: If at first you don't succeed, fail fail again
If at first you don't succeed, use a shorter bungee.
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Re: Re: If at first you don't succeed, fail fail again
"If you're bungee is too long on your first attempt, you don't get another".
Or, more tersely, "Splat!".
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This site really needs a bank of countdown timers down the side, one for each such "requirement."
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I like to read things here, thank you very much.
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Plenty worse things than Gangster...
Pink fairy armadillo suckling, kitten swaddling, bear shearing, cephaloplegic legal ignoramus.
Trkulja? No, I was talking about his lawyer, who should know better than this. It's like Barbara Streisand is completely unknown down there!
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Re: Plenty worse things than Gangster...
Also, please don't extrapolate from this lawyer to the rest of the country.
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Stuart Gibson, partner
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Re: Stuart Gibson, partner
:s/s of//
;)
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Re: Re: Stuart Gibson, partner
3.7 Commands for `sed' gurus
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Re: Re: Re: Stuart Gibson, partner
sed: -e expression #1, char 6: unknown command: `o'
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Re: Re: Re: Stuart Gibson, partner
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Re: Re: Re: Re: Stuart Gibson, partner
nano for lightweight use.
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Popcorn [was Re: ]
Otoh, just to keep a note of reality here, in what admittedly seems like a ludicrous situation(*), it's not really that much fun when a licensed professional vomits up some insane garbage on you.
It just isn't that much fun.
(*) No. I have never actually seen a Seth Rogen comedy. I don't like movies. No, really, I do not enjoy movies.
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Re: Popcorn [was Re: ]
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Re: Re: Popcorn [was Re: ]
That pressure is very problematic for most people. Techdirt is calling out some of the least viable legal theories they are presented with and that is brave/foolish and requires good legal advice to be the first.
There is a reason why these types of litigants (as in legal area) go after Techdirt:
Techdirt is seriously threatening the reputation of the litigants with their negative stories and as soon as the litigants feel threatened they respond with legal threats.
The world would be a far better place if less people sought litigious revenge when emotional.
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Re: Re: Re: Popcorn [was Re: ]
That's why certain people and companies sue at the slightest cause: they have a good shot of winning by default because the defendent can't actually afford to fo to court, and even if they lose they have still managed to cause some harm to the defendent. The smaller the defendent, the more harm was caused.
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Re: Re: Re: Re: Popcorn [was Re: ]
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Re: Re: Re: Popcorn [was Re: ]
And yet I don't believe I have ever seen Techdirt articles speak untruths. Their writers have opinions and express them, often colourfully. But that's modern journalism...
That said, you are right in that they often paint themselves a target. It's reach belies it's size; it's surprising just how often Techdirt comes right at the top of search results.
"The world would be a far better place if less people sought litigious revenge when emotional."
Very true. Reading his original missive, I tend more to the view that Milorad Trkulja is impaired, possibly through alcohol or substance abuse. I feel a degree of pity for him.
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Re: Popcorn [was Re: ]
Free publicity, article fodder, and a great example to make your point.
And virtually no possibility of losing your case.
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Re: Re: Popcorn [was Re: ]
From my perspective, I've just seen too much. Too many times. Too much fucked-up shit in the legal system. Too much time and money tossed into the cesspit. Too much lasting, irreparable damage.
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Sue the legal system!
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Gotta keep those farmers employed.
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Q.E.D.
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Gangster
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Re: Gangster
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Re: Gangster
Stuart Gibson of Mills Oakley has stated, "Our client is a gangster" and also has stated "That our client by virtue of his legal claims is incompetent and unfit to be a litigant," but in both cases, he was claiming that this was the stated fact of TD, when in reality, he is the only one who is publicly linked with those statements on this site, other than the litigant himself.
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Re: Gangster
Gangster would be a step up for him. He's just a common fool.
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Which dovetails nicely with "Mills Oakley" being an anagram for "Lame Skills Yo."
> However, now that he's apparently wasting money on a real lawyer like Gibson
Which dovetails nicely with "Mills Oakley" being an anagram for "A Yokels Mill."
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Google's response [was Re: ]
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you gangsta
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"If you pay us this money then bad things won't happen to you..." is the sort of thing gangsters say.
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Sounds like something somebody with a middle name of "The" would say in an Edward G. Robinson movie.
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I think Milorad "Michael" Trkulja wants to be gangsta!
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What's more, Mr. Gibson, based solely upon his own words, seems like an incompetent, ridiculous litigator.
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Yup, sand pounding.
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Smooth move there ex-lax.
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Not confused at all
Just want to make sure that I understand this.
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You are gonna get called out on being a gangsta, yo.
-just saying-
on a side note, he does seem to be a "sydney underworld criminal mafia lord"
"Eh, this is great soit, it'd be a shame if it went down, eh mate?"
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It seems to me they're both gangsters
And Mr. Trkulja and his mouthpiece Gibson appear to be doing just that, to Techdirt and also Google. So doesn't that make them gangsters? By definition? Am I confused?
Also, reviewing the comments here it does seem that they are both receiving a great deal of ridicule for the incompetent way in in which they're going about it.
So, again by definition, that makes them ridiculous, no?
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Response to: Anonymous Coward on Feb 12th, 2016 @ 12:54pm
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The Lawyer
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Mikey "I am not a gangster" Trkulja
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Funny this lawyer had all sorts of comments after that daft woman sued google and won.
What are the odds in such a large country that an "expert" is connected to both of these things.
Perhaps they get to much sun down there.
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Never mind
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Great, you've given all of Australia grounds to sue Techdirt.*
You're in trouble now.
*According to ridiculous lawyer. Actual reality may not apply.
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Don't hate the playa
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Competent Australian Lawyers
If I recall correctly one of the discussions was about incompetent buffoonish lawyers making the rest look bad. At the time we were talking about Prenda Law but it's equally clear that Mr. Gibson is an incompetent buffoon.
Mr. Gibson, should you choose to continue wasting your client's money in this fruitless endeavor to squelch free speech you will not only prove yourself an incompetent buffoon, but also unethical for wasting a client's money, failing to represent the law to them, and if you file this in a court of law, committing fraud upon the court.
I wish you well in crawling back into that fine little hole from which you came, and sticking to pretend-lawyering at the bus-stop you preach at daily. One day, no worries, Mate, you'll earn enough for a car... or a law-book... or education to gain an understanding of the law.
Ehud Gavron
Tucson AZ US
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That seems pretty fucking gangster to me
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From what I gather...
"Our client is a gangster;
That our client by virtue of his legal claims is incompetent and unfit to be a litigant;
That our client by virtue of his legal claims is a ridiculous litigant;
That our client is a criminal and a participant in organised crime;
That our client is unfit to be a litigant "
Wow.
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Wow...
Say something about a religion and face execution for blasphemy from certain restrictive places in the world.
Say a word you didn't know was offensive in another language: go to jail and pay 25000.
Ah yeah, and if you hate someone just write an offensive anonymous comment on their blog... if you do your research you can basicly decide their punishment.
This guy really doesn't think beyond his next paycheck.
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Old Links
“Twitter Sued For Defamation By Someone Who Thinks It's Responsible For 'Publishing' Tweets”, by Mike Masnick, Techdirt, Feb 21st 2012 From the linked story in the Sydney Morning Herald, by Michelle Griffin, “Man sues Twitter over hate blog” (Feb 17, 2012): At the time Mr Gibson apparently had his own firm, Gibsons Solicitors.
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Re: Old Links
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Re: Re: Old Links
He has also been involved in a fair few other similar cases.
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Re: Re: Re: Old Links
A sampling from the 3AW website— The same Mr Stuart Gibson who has for a number of years appeared frequently on Melbourne talk radio.
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Re: Old Links
According to LinkedIn (the link quoted above): But, according to ZoomInfo: Note that “Middletons Lawyers - In Print” is a dead link: 404. But from that cached page (cached by Zoom Information Inc. on 7/5/2006): And from The Law Institute Journal --- "Legal Action", Feb 2000 Upshot? Looks like the LinkedIn profile's claimed January 2000 start date at Middletons is inconsistent with the other information. Instead, the two other sources say January 2000 would be Cornwall Stodart, and March 2002 would be Middletons.
Just something that makes you go hmmm. But these kinds of inconsistencies aren't that unusual.
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Re: Re: Old Links
Internet Archive corroborates the ZoomInfo cache for this page.
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Internet games [was Re: ]
In my experience, though, it can be ummm… well… ummm… dangerous —yeah, that's the word— dangerous to approach certain individuals without thorough preliminary reconnaissance.
Some people in this world are just not nice.
Now, terribly extensive precautions are probably unnecessary when dealing with a legitimate solicitor from a developed, English-speaking nation. But old habits, and…
Some people in this world are just not nice.
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I suddenly had a flashback to this:
https://www.facebook.com/berkeleybreathed/photos/pb.108793262484769.-2207520000.1455334236./10932596 54038120/?type=3&theater
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It seems Mr Trkulja has now named his elusive "Senior Australian Defamation QC" and it turns out to be a solicitor who seems to have a very dim understanding of how to communicate civilly and without showing confrontational bias on their clients behalf. Not to mention complete lack of understanding with US law, reciprocity, comity, and even parts of relevant Australian law too it seems.
I'm also wondering if they have held themselves out to be a QC/SC to their client (which would be a huge problem for them) or that their client is just a blithering egotist with a few too many roos loos in their top paddock (translation: batshit crazy)... I'll go with the last one.
It also seems that as part of the appendix/addendum to the letter that a whole heap of extraneous and non relevant comments have been included with mine being in their as well. Does Mr Gibson imply that myself is also a party to these matters? Does he really want to cast a wide net and capture huge sharks that neither he nor his client really want to antagonise into making themselves and the firm of MO a nice hobby of distraction for someone who likes a challenge and loves making examples?
As to the letter itself. From first read I am of the opinion that:
* Mr Gibson and his client reside within the State of Victoria where 'gangster' is also used as a slang term;
* Mr Gibson and his client reside within Australia where both 'arrogant' and 'poorly researched' commentary are NOT actionable under any Act nor legislation whatsoever, though Irony is absolutely held up to be ridiculed and condemned.
* Mr Gibson by virtue of his antagonistic tone, threatening bluster and lack of candor should consider doing a LOT of CPD with emphasis on E≺
* That Mr Gibson's client has shopped around until he has found a Firm idiotic enough (or IMO hungry enough) to take up his alleged wrong;
* That Mr Gibson mentions two 'concerns notices' with one (by his client) that could not of been a concern notice under the Act and even one that is irrelevant to Techdirt since it is to another entity entirely (Though I'm wondering if counsel for Google will understand why their concern notice - if they got one - has now been enjoined with this one - could this itself be a breach of privacy under Australian APP laws or worse - only time will tell);
* That Mr Gibson's client based on patterns of behaviour over the last number of years could be a prime contender for an LRO (limited or extended) under the brilliant Victorian Vexatious Proceedings Act (2014) that now due to the attached comment section anyone in their (especially including myself) has a sufficient interest in the matter for standing.
As to the "not for publication" bold type, Mr Gibson like anyone in his position knows that it is pure bluster and intimidation and has no legal weight within Australia, or anywhere, whatsoever (even the stock template footer has no legal weight and is just a standard CYA statement) and like a lot of bullies will be quite unhappy and will most likely act out when called on it (a bit of due diligence before sending these sorts of things would go a long way to stop being looked at as a fool - though I digress).
Now to the "One could not conceive a more defamatory reference than that" statement in relation to the calling of someone a gangster in Australia. Mr Gibson like his client needs to consider all bane and antidote context and actually get out into the actual community at large and listen. Even a few hrs inside the local Magistrates' Court whilst in session would remove you of that fallacious idea, or just stay in the marshmallow sensitive and constrictive cave you currently seem to both reside in.
Personally I would normally just refer you to the reply in Arkell v. Pressdram (1971) [unreported] but hey I'm bored and need a new hobby.
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Re:
Remember Campers - I'm not a lawyer, I don't even pretend to play one on tv... I just know a bunch of people who know the law much better than I do and enjoy watching them tear the stupid to pieces.
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Trkulja v Gibsons Solicitors
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Re: Trkulja v Gibsons Solicitors
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Re: Trkulja v Gibsons Solicitors
The other point you asked below is obviously because Trkulja was bullshitting since his command of English is actually quite good and ALWAYS has been. What I make out of that statement is that someone has been confabulating to the court.
in other words Trkulja doesn't like paying his bills, tries to act the victim by making people feel sorry for him and is a huge Egotist.
Am I correct Trkulja? Hey Gibson - Can you see that LRO is getting closer by the moment based on past histrionics? I like my new hobby!
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Re: Re: Trkulja v Gibsons Solicitors
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Re: Re: Re: Trkulja v Gibsons Solicitors
Trademark Solutions by Mills Oakley Lawyers Does “amalgamation” in this context mean that Mills Oakley is the legal successor to Gibsons Solicitors Pty Ltd? I suppose, in this context, “amalgamation” perhaps might merely mean that Gibsons Solicitors was dissolved and all its assets, liabilities and personnel became Mills Oakley.
The exact meaning of “amalgamation” may not really matter, after all. But I'm simply curious. I have very little knowledge regarding the business structure of law firms in Australia.
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Re: Re: Re: Re: Trkulja v Gibsons Solicitors
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Re: Re: Re: Re: Re: Trkulja v Gibsons Solicitors
But the Australian Taxation Office interpretation that, under a specific section of a specific act, a merger is indeed an amalgamation, does not squarely address the question I was wondering about here, in this particular context.
So let me rephrase what I was curious about:
May we regard Mr Trkulja as having engaged in litigation with a organization now doing business under a name containing “Mills Oakley”? Particularly Mills Oakley Lawers?
Or does Gibsons Solicitors Pty Ltd retain an identity separate from Mills Oakley Lawyers in the context of the litigation with Mr Trkulja?
As I said before, it might not matter, after all. But I am curious.
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Re: Trkulja v Gibsons Solicitors
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A More Proper Lawsuit...
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I recommend that we change the
name of our famous Macadamia to
Milorad Trkulja Gansta Nuts
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Network effects [was Re: ]
(*) Blawgosphere : No longer a kewl wurd? Ever a koool wird?
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Re: Network effects [was Re: ]
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Re: Re: Network effects [was Re: ]
Heck, that word might be defamation. Calumny! Per se.
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Gangster
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