Over the past few years, we've written about a series of truly nutty court decisions in Australia that have found Google and Yahoo liable for defamation for certain search results. In writing about it, we've seriously angered some of the plaintiffs in those cases, including one who went on a rampage posting a bunch of blatantly made up info about us, apparently thinking they were "proving a point" about how we'd get upset about defamatory material being posted about us. Another, Milorad Trkulja, sent us one of the nuttiest legal threats we've ever seen, which was then followed up with an even more ridiculous threat from an Australian lawyer who seemed to not fully understand the legal threats he was making (nor the difference between "drivel" and "dribble.")
Mr. Trkulja is back in the news, as it seems his luck with the Australian courts has run out. If you don't recall, the origin of his case was that if you did a Google image search on Australian organized crime, sometimes Trkulja's own image would show up. Trkulja sued Google and Yahoo over this and (somewhat amazingly) won, with the effective argument being that once Trkulja alerted them to this they should have fixed the search results. There are a number of reasons why this is a bad decision, as we've discussed in previous posts, but suffice it to say, holding a search engine liable for search results people don't like opens up a huge pandora's box of problems.
Anyway, it seems that these kinds of lawsuits have become more popular in Australia, with another one appearing just last month. But, Trkulja's attempt to get even more money from Google has come up short on appeal.
In 2013 he launched another defamation action against Google, and the internet company responded by applying to the Supreme Court to have the proceedings set aside because, it argued, his case had no real prospect of success. A judge dismissed Google's application.
But Google appealed against that ruling, and the Victorian Court of Appeal ruled on Tuesday in Google's favour when it set aside Mr Trkulja's application.
The Court of Appeal found Google was not the primary publisher of the images and could not be found responsible for the results of online searches, which were produced automatically.
The search results were also incapable of being found defamatory of Mr Trkulja, the appeal court ruled.
Finally some good news on these kinds of cases down under. And, because Trkulja and friends may stop by here and freak out again, let's be clear about what we're saying: no one is saying that it's good that Google's search results popped up some unfortunate anomalies around your images. But it happened. That doesn't mean that Google is liable, or that you should have the right to edit Google's search results by lawsuit (or to demand lots and lots of cash from Google). Search engines aren't doing this on purpose, and it's not defamatory. It's just giving the best results it can, and sometimes those aren't perfect.
This past Friday, we published our response to an Australian lawyer, Stuart Gibson, who apparently works for a real law firm called Mills Oakley. I know that Gibson is a real lawyer, because he's represented big famous clients in the press before, including this impressive TV appearance in which he is left "categorically denying" statements that his client appears to have made directly and then having to defend himself when the news anchor points out what his client has actually said. Anyway, Mr. Gibson did not appear to appreciate my blog post on Friday, and sent a series of short emails over the weekend, with increasing fervor, in which he insisted that I "get proper legal advice instead of publishing your utter dribble," that my "legal theories" were "nonsensical" and finally demanded to know if I had "the guts" to face him in court.
I, as you know, am not a lawyer -- either in the US or Australia -- and honestly had no idea that one was supposed to make legal decisions based on whether or not one had "the guts." I had always assumed that this was the kind of thing that you need for bar brawls, rather than legal fights. But perhaps things are different down under. Either way, I did get "proper legal advice" (as I had before publishing my original post, but we'll leave that aside), and given Gibson's increasing email threats, our lawyer, the wonderful and well-regarded Paul Alan Levy from Public Citizen Litigation Group, has now responded to Gibson on our behalf. You can read it by following the link or embedded below.
In the meantime, others in the legal blogging world have begun to weigh in on Gibson's threat, including lawyer Scott Greenfield, who dubbed it Stuart Gibson's Really Bad Idea, and lawyer Ken White who noted that Milorad Trkulja is "not a gangster" but "Stuart Gibson Is, I Suppose, A Lawyer." I would recommend reading both posts, for further legal analysis of Mr. Gibson's threats (and make sure you stick around for his email exchange with Ken White). One wonders if this is the kind of publicity that Mills Oakley likes its lawyers to get.
Update: Stuart Gibson has replied to Paul's letter simply stating: "I wouldn't even be bothered to open this Spam." Apparently, Gibson thinks that detailed responses that actually include citations (unlike his own threat letters) from some of the most respected litigators around are "Spam." And the reputation of Mills Oakley continues to spiral down the drain...
Update, the second: Levy responded to Gibson by inserting the full text of the letter in the body of an email so that Gibson would not have to "open" the PDF he originally sent, and Gibson responded "Don't bother pal." Less than a minute later, he sent another email to Levy, saying just "Dribble." At this point I'm confused about Gibson and Mills Oakley and how they operate. Gibson himself had specifically requested that I seek out legal advice in responding to his letter. I have done so. And now he refuses to even read it? This is the professionalism that Mills Oakley and its lawyers demonstrate?
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."
Either way, it seemed fairly clear that there was no actual "harm" to Mr. Trkulja, given that he didn't even seem to care about it for over three years.
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:
And now on to the crux of Gibson's argument: we said mean things about his client and somebody's feelings may have been hurt.
If you can't read that, it says:
The matter that you have published conveys false and defamatory meanings including (but not limited to) the following:
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
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.
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.
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:
If you can't see that, it says:
Moreover your commentary that still resides on your website is an arrogant, false and poorly researched piece for the following reasons:
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.
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.
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.
As we've noted, we regularly get legal threats, some of which are more serious than others. Sometimes we ignore them entirely, and sometimes we feel the need to respond. Depending on the situation, sometimes we respond privately. Sometimes we respond publicly. The more ridiculous the threat, the more likely we are to respond publicly -- and I think the latest holds up as one of the most ridiculous legal threats we've seen. It comes from Milorad Trkulja, who is also known as Michael Trkulja, and who lives in Australia. Trkulja made some news a few years back when he (somewhat surprisingly) successfully sued both Yahoo and Google for hundreds of thousands of dollars, because when people did image searches on a variety of phrases related to things like "Australian criminal underworld mafia" sometimes a picture of Trkulja would show up. Apparently, Trkulja was actually shot in the back a decade ago by an unknown gunman. And somehow, for whatever reasons, certain websites included pictures of him along with enough keywords that the search algorithms at both Google and Yahoo would return his photo in such searches. We wrote about his victory over Google back in November of 2012, pointing out how ridiculous it was that an Australian court said you could sue search engines because image search happens to pop up your image along with actual gangsters.
Anyway, after we wrote about the case, as happens on Techdirt, people commented on the story, including one anonymous comment from someone who, in a totally offhand way, claimed that "Trkulja's a gangster, too." The actual content of the comment, as you can see was actually to clarify some of the misconceptions -- including who "Tony Mokbel" is (a well-known Australian gangster) and responding to the author of the post, Tim Geigner's (admittedly weak) sarcastic joke that Australians fight with machetes, rather than guns.
Now, it appears that Trkulja just found out about this comment (more on how in a moment) and has sent off a fairly massive 54-page document to both myself and to Google with a series of increasingly hilarious demands -- including that we respond by 4pm today (he does not designate in what time zone -- not that it matters). The letter is, well, you kinda have to read it. It is full of misspellings, along with typographical and grammatical errors of all kinds. For someone who claims to have consulted a lawyer before sending the letter, you'd think he'd consult someone who could proofread his letter as well. No such luck, apparently.
It starts out by claiming that it's "Not for publication" but that's totally meaningless. You send it to us, we can absolutely publish it. Free speech means something here in the US.
It then includes a recitation of some "facts" about certain Australian organized crime individuals, followed immediately by this:
I'm not an expert on Australian law, but I'm pretty sure that's totally false. I believe that he's either referring to his own earlier case, or (more likely!) the dreadful recent decision in a South Australia court, concerning one "Janice Duffy." Duffy, as we've discussed, sued Google after she became quite upset that a Ripoff Report post mocking her was a high result on her name (what is often left out of this discussion was that Duffy went to Ripoff Report first and posted fake posts to attack a psychic website where she felt she had been connected to a psychic who provided her with false information, and the supposedly "defamatory" content on the site was someone referring to Duffy as a "psychic stalker"). The ruling in that case did not say that Google is automatically liable for any defamatory content online, but rather, in this specific instance, Google could be found as the "publisher" of some defamatory content, based on the way that Google chose to display that content. I disagree strongly with the decision as is, but even if we accept it at face value, it does not say what Trkulja is claiming.
Oh yes, speaking of Duffy, it felt... odd... to receive a legal threat from Australia so soon after discussing the Duffy decision -- especially given that Duffy had not only just yelled at us online, but had also been going off on some bizarre rants and outright threats against some individuals who expressed an opinion suggesting that the ruling in favor of Duffy was troubling.
So, it didn't come as a huge surprise that Trkulja then admits he only found out about our post and the comments... thanks to Duffy, who is apparently a "family friend" of his.
If you can't read that, it notes that the "matter in paragraph 14" (which is the comment I mentioned above) "come to my attention when my family friend Dr Duffy from South Australia send me link that you have been defaming me as from 2012."
From there, he notes:
I complains is an article authored by you and posted to the "Techdirt" website situate at https://www.techdirt.com ("the website")....
Well, I'm really not quite sure what to do with that information, because almost everything in it is wrong, but we'll get there. From there, he mentions that he spoke to an Australian defamation lawyer, and suddenly shifts oddly from the first person to the third person -- possibly copying what someone told him, though it's not at all clear from the text of the letter. The key point: he claims that comment is defamatory and that Techdirt is liable for it. This is wrong on a variety of levels -- but we'll get there as well.
Then, we get to the "demands." It starts with a demand for Google. They are apparently supposed to delist Techdirt entirely because of a single comment that Trkulja falsely believes is defamatory. Also, it could be read as to be asking Google to block me personally from Google's website. Or something. Also, he wants Google to block some other websites. No reason or explanation is given.
Then there are demands for me that include identifying the anonymous "subscriber," delete the comment, the post and anything ever mentioning Trkulja. Oh, and I should fork over a bunch of money:
These demands are then repeated again on the next page in slightly different language. And numbered instead of lettered. No idea why. Then there's a demand that we respond by December 1st, 2012. Yes, 2012. I'll assume that's a typo.
Then there are a ton of screenshots that I assume are "exhibits" of some sort. They include my Twitter page for no clear reason. And also the Techdirt profile of the author of the original article, Tim Geigner, and, for reasons unknown, Tim's Amazon author page. He also refers to Tim as "Darknight aka Timothy Geigner" while I think most of our regulars recognize that Tim is better known as "Dark Helmet" in our comments....
Okay, so that's the situation. Now, the response: we're not going to do any of the demanded things. For a whole variety of reasons. Let's go through just a few, because this post is getting too long already and if I had to respond to all of the ways this letter is wrong, none of you would still be reading.
First up, not that it really matters, but the statute of limitations is one year in Australia, as it mostly is in the US as well. Under some circumstances, it can apparently be extended to three years, but (oops) that comment was published on November 13, 2012. The statute of limitations is up. Sorry.
The comment isn't defamatory. The reference claiming you're a "gangster" is totally innocuous. It's a trivial throw away comment on a blog post that no one would notice. Trivial comments are not defamation in Australia (or the US for that matter).
The other lines that you seem to complain about are opinions not statements of fact. The reference to the "gun" was a response to Geigner's joke in the post about machetes, not to anything involving you. Opinions are not defamation. Things unrelated to you are not defamation of you.
Also, we're a US company with no presence in Australia, so your threats are pretty pointless.
Even if you could convince an Australian court with some sort of wacky legal argument, we're totally protected from such judgment thanks to the SPEECH Act.
Free speech, dude.
We have no "subscriber" named Anonymous Coward. That's the designation given to anyone who comments without logging in.
We didn't publish the comment. An anonymous user did. We're not liable for it. If you have any legitimate complaint at all (and you don't), it's with an anonymous user who posted a trivial comment three years ago, rather than us or Google.
Even if none of the above is true: what the fuck? NO ONE is finding a comment buried deep below a blog post about your legal victory and suddenly saying "oh, well that proves that Trkulja was a gangster."
Wait, what's so terrible about being called a "gangster" anyway? To many people it's a compliment or something to brag about.
That's enough of a response. There are tons of other possible responses, but in short: we're not doing a damn thing in response to this ridiculous threat. You have no case whatsoever and complaining about this is ridiculous. It may be time to find a hobby or something, Mr. Trkulja, because poorly written and ridiculous legal threats to foreign entities aren't doing you any good.
