In the case of Trkulja v Yahoo! Inc LLC & Anor ([2012] VSC 88), after the jury had made findings on liability, Kaye J awarded damages of Aus$225,000 against the search engine Yahoo!  The case is of considerable general interest.  It deals with publication by an internet search engine provider and the factors to be taken into account when assessing damages where the alleged defamation concerns criminal acts. 

It is of particular interest that this plaintiff also issued proceedings against Google Inc in respect of the same libel – giving rise to issues of “double recovery” which, in England, would be covered by section 12 of the Defamation Act 1952.

Facts

The plaintiff, Michael Trkulja, migrated to Australia from Yugoslavia some 40 years ago. Mr Trkulja started promoting singers and entertainers in Melbourne, hoping to unite the Yugoslav and Australian communities.

Mr Trkulja was succesful and featured regularly in the print and live media in Melbourne. He had his own television show called “Micky’s Folkfest”. He described himself as the “Michael Edgeley” of his community (a promoter who has brought some of the world’s biggest productions to Australia). He said of himself that it would be hard to find any Yugoslav person who had migrated to Australia in the last 40 years who had not heard of him.

Mr Trkulja also played a prominent role in his church and was at one stage the vice president.

Mr Trkulja issued proceedings against Yahoo! Inc and Yahoo! 7 for damages for defamation in respect of an article published about him on the internet by the defendants between January 2009 and December 2010.

The article in question could be viewed on a page entitled “Melbourne Crime” when searching Mr Trkulja’s name on the defendants’ search engine.

Beneath the title were photographs of nine men who were, or who were alleged to have been, engaged in serious criminal activity in Melbourne. His photograph shared the page with photographs of alleged murderers and drug traffickers.

Under the photographs were links, shaped as bullets. Beneath one of the bullets was the article in question, headed: “Shooting probe urged November 20, 2007”. To the left of the article was reference to the article being sourced from the Herald Sun Newspaper and, to the right of the article, was a large photograph of Mr Trkulja.  The article told how Mr Trkulja was shot in the back by a hit-man whilst having Sunday lunch in a restaurant with his elderly mother.

A letter was sent by Mr Trkulja’s solicitors to the defendants on 25 November 2009 requesting that the material be removed from their search engine immediately.

The defendants, in their letter in response, denied responsibility for the publication which, they said, appeared on the Yahoo! 7 search engine as a result of being linked through an algorithmic search. They suggested that Mr Trkulja contact the operators of the Melbourne Crime website direct.

This would prove to be a very costly response.

Jury Trial

The case proceeded to a jury trial and was heard in March 2012.

At trial, Mr Trkulja pleaded three imputations, both as ‘false’ innuendos and also as ‘true’ innuendos:

(i)  Mr Trkulja is a criminal;

(ii)  Mr Trkulja was so involved with crime in Melbourne that his rivals had hired a hit-man to murder him; and

(iii) Mr Trkulja is such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a website which chronicles crime in Melbourne.

Section 22 (2) of the Defamation Act 2005 (Vic), provides that where defamation proceedings are tried by a jury, the jury is to determine:

(i)  whether the defendant has published defamatory matters about the plaintiff; and

(ii)  if so, whether any defence had been established.

The defendants pleaded that, subject to it being established at trial that the article had been downloaded and read, they had published the material in question.

On the second day of trial, the defendants conceded that the article had been downloaded and read by at least one person using the Yahoo! 7 internet search engine.

The jury found that the article, both in its ordinary, natural meaning and also as ‘true innuendos’ bore the second and third imputations pleaded by the plaintiff.

Impact of article on Mr Trkulja

Mr Trkulja said in evidence that he was shocked and devastated by the article. He became depressed and took medication, and continued to do so as at the date of trial.

He further said that:

(i)   he estimated that some 500 people had spoken to him since the publication of the article in a manner which suggested they had seen the article;

(ii)  a couple designated to sit at the same table as him at a wedding, refused to do so on the basis that they would not sit with a criminal;

(iii)  invitations to weddings, christenings and celebrations declined from 25-30 per year to 0 in 2011;

(iv)  people left shops as a result of his mere presence;

(v)   his friends refused to provide references for him out of concern that they would become victims of violent crime if they did so; and

(vi)  he was extremely concerned that his children or grandchildren would find out that he was an alleged Melbourne criminal.

Assessment of Damages

Prior to the Defamation Act coming into force, the highest defamation award in Australia was an award of Aus$2.5 million in the case of Erskine v John Fairfax Group Pty Ltd [1998]. This was subsequently appealed and settled.

Section 34 of the Defamation Act 2005 (Vic) provides that the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. The maximum amount of damages that may be awarded for non-economic loss is fixed at Aus$324,000 (£212,450).

In a jury trial in Australia, it is the Judge rather than the jury who determine the amount of damages that should be awarded.

Submissions made on behalf of the parties and Kaye J’s findings

Publication on the internet

Counsel for the defendants submitted that, unlike print or live media, the article would not have been read by the world at large and instead it would have been read by people who wanted to know about Mr Trkulja.

Kaye J agreed with counsel for the plaintiff who pointed out that “to Google” has become a common turn of phrase and that the use of the internet to learn about people is commonplace.

“Grapevine Effect”

Kaye J stated that he did not need to consider this in a case where the plaintiff’s claim was based on the direct publication of the material by the defendants. He said that the plaintiff’s evidence as to the reactions to him by other people was testament to the breadth of the damage caused to his reputation by the publication by the defendants of the article.

Plaintiff’s personality

Whilst counsel for the Defendants sought to portray the plaintiff as a “pugilistic” personality, Kaye J found that whilst the plaintiff was not an over-sensitive individual, the injury caused to the plaintiff’s reputation by the defendant caused significant distress and upset to the plaintiff.

Impact of refusal to take down

Kaye J found that the material remaining on the internet available through the defendants’ search engine until the end of 2010 increased the damage to the plaintiff’s reputation. Kaye J stated that publication through the defendants’ search engine caused more injury to the plaintiff than print or live media as people who heard about the article were then able to review the article and confirm what they had been told.

Aggravated damages

Section 35 (2) of the Defamation Act 2005 (Vic) says that an award in excess of $324,000 (£212,450) can be awarded by the court only if the circumstances of the publication of the defamatory matter were such as to warrant an award of aggravated damages.

Counsel for the plaintiff submitted that the award of damages should include aggravated damages on the basis that the defendants

 (i)  disclaimed responsibility for the publication of the article;

(ii)  refused to take down the article and the image; and

(iii) continued to publish the image and the article for a further 12 months.

Counsel for the plaintiff conceded that the failure by the defendants to remove or block the article would not justify the award of aggravated damages.

Kaye J stated that it is well established that a court may award aggravated damages in an action for defamation arising from the conduct of the defendants in publishing the material, or from their conduct up to and including trial. He said that for such an award to be made there must be “something about the conduct of the defendant which aggravates the feelings of hurt occasioned by the plaintiff by the publication of the imputations contained in the defamatory material”.

Kaye J followed authority proposing that conduct by the defendants had to be lacking in bona fides or be improper or unjustifiable in order to entitle the plaintiff to an award of aggravated damages (Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474; Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58; Bogusz v Thomas (1989) FLR 167 at 178-9).

Conclusion as to assessment of damages

Kaye J stated that, when determining the award for damages in this case, it would be of limited assistance to consider damages awards in other defamation proceedings. He said that each defamation case had its own characteristics and the award of damages should take into account a diverse range of factors including:

(i)  the extent of the plaintiff’s reputation;

(ii) the nature of the imputations;

(iii) the effect of the imputations on the plaintiff’s particular reputation;

(iv) an evaluation of the injury done to the plaintiff’s feelings; and

(v) the conduct of the defendant (where relevant).

Google Inc

Section 38(1) (d) of the Defamation Act 2005 (Vic) says that evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory material, where the plaintiff has brought proceedings for damages for defamation in relation to any other publication having the same meaning or effect as the defamatory matter. This section traverses the common law principle that damages are not mitigated by proof that other people have similarly damaged the plaintiff’s reputation in the same manner as the defendant.

Section 38 (1) (c) of the Defamation Act 2005 (Vic) says that the plaintiff should not be compensated twice for the same allegations.

Kaye J took into consideration that some of the harm caused to the plaintiff may have been caused by the Google publication. However, it was noted that it was the Yahoo! 7 article preceded the Google article and was the article which “struck a substantial blow” to the plaintiff’s reputation and standing.
Kaye J referred to the following factors when concluding his assessment of damages:

(i)  the plaintiff had a widespread, high reputation throughout the Yugoslav community in Victoria and Australia;

(ii) the publication of the article caused considerable damage to the plaintiff;

(iii) the publication of the article resulted in the plaintiff suffering significant distress and hurt;

(iv) the plaintiff’s feelings of distress, caused by the publication of the article through Yahoo! 7, will endure;

(v) the imputations published by the defendants and found by the jury were particularly serious.

Kaye J said that “the damages must be sufficient to demonstrate, to the bystander, the baselessness of the allegation about the plaintiff in the defamatory material and thus to “nail the lie” in it”.

He concluded that the plaintiff was entitled to an award of Aus$225,000 (£147,000) plus interest.

The plaintiff had also sought an injunction. As the article was no longer available via the defendants’ search engine, having been taken down at the end of 2010, no injunctory relief was granted.

Jump forward to 12 November 2012 – judgment was given in the same plaintiff’s claim against Google – Trkulja v Google Inc LLC (1) Google Australia Pty Ltd (2) [2012] VSC 533 … this will be the subject of an Inforrm post shortly.

Polly Wilkins is an Associate (admitted in England & Wales, not in Australia) in the Litigation, Competition and Regulatory team at Squire Sanders AU (Perth office).