Nikolic v Twitter - [2020] VSC 101

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2019 00126

GORAN NIKOLIC & OTHERS (according to the attached Schedule)	Plaintiffs
v
TWITTER INTERNATIONAL COMPANY & OTHERS (according to the attached Schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2019
DATE OF JUDGMENT:	9 April 2020
CASE MAY BE CITED AS:	Nikolic v Twitter & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 101

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DEFAMATION – Application by the defendants for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) and/or striking out of the plaintiffs’ claim pursuant to Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 – Entitlement of a corporation to sue pursuant to s 9(2) of the Defamation Act 2005 (Vic) – Whether matters capable of conveying defamatory imputations – Barrow v The Herald & Weekly Times Pty Ltd [2015] VSC 263 – Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 referred to – Whether publication of search results gives rise to defamatory imputations – Summary judgment and strike out applications granted in part.

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APPEARANCES:	Counsel	Solicitors
The First Plaintiff in person (and by leave on behalf of the Second Plaintiff)*
For the First Defendant	Mr S Mukerjea	Macpherson Kelley Pty Ltd
For the Second and Third Defendants	Ms L De Ferrari SC with Mr S Mukerjea	Johnson Winter & Slattery

* See Nikolic v Nationwide News Pty Ltd [2020] VSC 98, [16] – [17]

HER HONOUR:

Introduction

This is one of two proceedings brought by Mr Goran Nikolic (‘Mr Nikolic’) and a corporation he controls, Idaz09 Pty Ltd (‘second plaintiff’) arising out of what seems to be a case of online identity theft. A person unknown to Mr Nikolic has been using the Twitter handles ‘Rusty@idaz09’ and ‘Victory Nation:@idaz09nations’ (‘Twitter handles’) since December 2016 to post inflammatory material online, which is said by Mr Nikolic to be, among other things, racist, homophobic and anti-Muslim (‘offending material’). The offending material is also said to be hateful, to represent extreme far right views, to express anti-vaccination views, and to promote conspiracy theories, such as allegations that Australian politics is controlled by paedophiles. The second plaintiff, of which Mr Nikolic is the sole director and shareholder, conducts a business developing and producing identification and data security tools, and owns trademarks in a number of developed countries, with an international patent application underway. Mr Nikolic, who is also employed by the Commonwealth Government, has invented the technologies used by the second plaintiff, and is closely identified with the second plaintiff, which has as its overarching philosophy the utilisation of technological advances to create a ‘more secure, open and accessible society’.

Mr Nikolic considers himself to be tolerant and socially progressive, and is deeply perturbed at the thought of being associated with the allegedly reactionary opinions and inflammatory language used in the offending material. On 15 January 2019, the plaintiffs, then represented by solicitors, issued…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nikolic v Twitter

Details

AGLC: Nikolic v Twitter [2020] VSC 101
Case: [2020] VSC 101
Decision Date: 9 April 2020

CaseChat Overview and Summary

In the case of Nikolic v Twitter, the plaintiff, Nikolic, brought proceedings against the defendants, Twitter and Twitter International, alleging defamation. The claim was based on search results that appeared when the plaintiff's name was entered into Twitter's search function. The matter was heard in the Supreme Court of Victoria. The defendants sought summary judgment under section 63 of the Civil Procedure Act 2010 (Vic) and/or for the plaintiff's claim to be struck out under Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015. The legal issues before the court were whether the matters complained of were capable of conveying defamatory imputations and, if so, whether the publication of search results gave rise to defamatory imputations.

The court found that the matters complained of were capable of conveying defamatory imputations, as they suggested that the plaintiff had committed a crime and was a person of ill-repute. However, the court also found that the publication of search results did not give rise to defamatory imputations, as Twitter did not create the content that appeared in the search results and did not intend to convey the defamatory imputations. The court considered that Twitter was merely a passive conduit for the information and did not play an active role in the publication of the defamatory material. The court granted the defendants' applications for summary judgment and striking out in part, dismissing the plaintiff's claim against Twitter International and striking out the plaintiff's claim against Twitter.

The court's orders were that the plaintiff's claim against Twitter International be dismissed, and the plaintiff's claim against Twitter be struck out. The court also noted that the plaintiff had leave to amend their claim and to seek further directions from the court. The defendants were ordered to pay the plaintiff's costs of the application up to the point of determination.

Orders