Trkulja v Yahoo! Inc LLC

Case [2012] VSC 88


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. 10916 of 2009

MILORAD TRKULJA (aka Michael Trkulja) Plaintiff
v
YAHOO! INC LLC
and
YAHOO! 7 PTY LTD (ACN 089 187 100)

First Defendant

Second Defendant

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JUDGE:

KAYE J

WHERE HELD:

Melbourne

DATE OF HEARING:

1, 2, 5, 6 March 2012

DATE OF JUDGMENT:

15 March 2012

CASE MAY BE CITED AS:

Trkulja v Yahoo! Inc LLC & Anor

MEDIUM NEUTRAL CITATION:

[2012] VSC 88

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DEFAMATION – Publication on the internet – Damages – Verdicts by jury that defendants’ publication defamatory of plaintiff – Imputations of involvement of plaintiff in the criminal underworld – Aggravated damages – Whether necessary for plaintiff to prove that defendants, in publishing material, lacked bona fides or acted improperly or unjustifiably – Evidence as to statements by third parties after publication – Defamation Act 2005 (Vic) s 22(3), 35(1(), 38(1)(d).

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APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr C. Dibb Efron & Associates
For the Defendants Mr M. Wheelahan SC with
Mr S. O’Meara SC
Allens Arthur Robinson

HIS HONOUR:

  1. The plaintiff claims damages for defamation in respect of an article published about him by the defendants on the internet between January 2009 and December 2009. The jury, empanelled to try particular issues in the proceeding, has, by its verdict, determined that the article was defamatory of the plaintiff. Pursuant to s 22(3) of the Defamation Act2005, I am required to determine the amount of damages to be awarded to the plaintiff.

The proceeding

  1. The article, which is the subject of the proceeding, was published by the defendants through the “Yahoo! 7” search service on a website entitled “Melbourne Crime”.  The article was available to be viewed by any person, who accessed the defendants’ search engine, and searched the plaintiff’s name.  The page, upon which the article appeared, was entitled “Melbourne Crime”.  Immediately beneath it were the photographs of nine men who, the defendants admitted, were, or were alleged to have been, engaged in serious criminal activity in Melbourne.  It was also admitted by the defendants that one of the nine photographs was the face of Tony Mokbel, who, it was admitted, was “… a convicted criminal, an alleged murderer and a drug trafficker”.  Another of the nine photographs was admitted by the defendants to depict the face of Dennis Tanner, who, it was admitted, was “… a former policeman who was alleged to have murdered Jennifer Tanner”.

  1. Immediately beneath those nine photographs, were six links, each in the shape of a bullet.  In turn, underneath those links, was the heading of the article, “Shooting probe urged November 20, 2007”.  To the left of the article, in small print, was an acknowledgement that the article was sourced from the Herald Sun Newspaper of November 20, 2007.  To the right of the article, was a large photograph of the plaintiff’s face and shoulders.

  1. The article was as follows:

“Police Chief Christine Nixon has been urged…

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Trkulja v Yahoo! Inc LLC [2012] VSC 88
Case
[2012] VSC 88
Decision Date

CaseChat Overview and Summary

In the matter of Trkulja v Yahoo! Inc LLC, the plaintiff, Mr. Trkulja, sought damages for defamatory statements published by the defendants, Yahoo! Inc LLC, on their internet platform. The allegations centred on publications that implied Mr. Trkulja was involved in the criminal underworld. The case was heard in the Supreme Court of Victoria. The central legal issues revolved around the nature of the defamatory imputations, the defendants' responsibility for the content, and the appropriateness of awarding aggravated damages. Specifically, the court had to determine whether the plaintiff needed to prove that the defendants lacked bona fides or acted improperly or unjustifiably when publishing the material. Additionally, the admissibility of evidence concerning statements made by third parties after the publication was in question.

The court examined the legislative provisions under the Defamation Act 2005 (Vic), particularly sections 22(3), 35(1), and 38(1)(d). It concluded that the jury's verdict that the defendants' publication was defamatory and that the imputations were of the plaintiff's involvement in criminal activities were valid. The court further found that aggravated damages were appropriate, given the nature of the defamatory content and the circumstances of the publication. The evidence provided by third parties, which indicated a broader dissemination and impact of the defamatory material, was deemed relevant and admissible in assessing the extent of harm caused to the plaintiff.

Following its analysis, the court upheld the jury's decision that the defendants' publication was indeed defamatory and awarded damages to the plaintiff. The court's reasoning was grounded in the specific statutory provisions and the established legal principles concerning defamation and aggravated damages. The final orders reflected the court's determination that the plaintiff was entitled to compensation for the harm caused by the defamatory statements published by the defendants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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