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Trkulja v Yahoo! Inc LLC

Trkulja v Yahoo! Inc LLC

Case [2012] VSC 88 15 March 2012

Defamation

Aggravated Damages

Publication on the Internet

Defamation

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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

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:

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

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”.

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.

The article was as follows:

“Police Chief Christine Nixon has been urged…

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 Trkulja v Yahoo! Inc LLC

Details

AGLC: Trkulja v Yahoo! Inc LLC [2012] VSC 88
Case: [2012] VSC 88
Decision Date: 15 March 2012

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