Some of the screams of online outrage are ridiculously adorable. Some are batshit crazy. Some just keep screaming and screaming, supported by the popcorn lobby. Some become legends.
Sit down, Mike Masnick. I have something to tell you and it’s going to make you sad. The cries of defamation from Australia by Milorad “Michael” Trkulja fail to rise to any meaningful level of hilarity. They’re banal, boring and silly. We’ve seen so much better, so much funnier, that Trkulja’s complaints don’t make the cut.
But that’s not the end of it. Oh, no. Not by a long shot. Because it’s not just about pathetic Milorad Trkulja, but the Aussie solicitor who took up his misbegotten cause, Stuart Gibson. What Trkulja failed to offer, Gibson provides. Funny how that happens.
What kind of blithering idiot sends something like this to the guy who came up with the phrase, the Streisand Effect? This kind.
According to his firm bio, this is in Gibson’s sweet spot.
Stuart’s practice is largely in the fields of corporate and commercial Law, intellectual property law (non-contentious and contentious), media and entertainment law (including defamation law) and sports law.
Accepting the premise that this is what Stuart practices, one can reach only one conclusion. Stuart Gibson is not a very good solicitor. In more colloquial language, Gibson has shit for brains, having sent Techdirt a letter that announces, at the top, in bold face, “not for publication.” There is no better way, none, that he could absolutely assure that this would be published on the internets.
As for the substance of his letter, it ranges from ignorant to clueless, with a dash of international intrigue thrown in for good measure.
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 Actis 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.
Now Mike’s not a lawyer. He’s not a lawyer in the United States. He’s not a lawyer in Australia. He’s not a lawyer anywhere. And yet he just kicked your pathetic ass across the internet. How much must you suck for a non-lawyer to do that?
So what exactly were you trying to accomplish here, Stuart? Were you hoping to scare Mike and Techdirt into collapsing into a weeping puddle of fear in the corner at the dire threats of your letter? Did you assume that your mad skillz and fierce demeanor would overwhelm Masnick?
Did you want to make yourself into a joke on a continent far, far away?
While your client (and that’s kinda peculiar too) may feel the sting of butthurt at being called an unpleasant name on the internet, it appears he’s just some sad mope whose abilities with language are “limited,” and whose whine is pretty common and pedestrian. You have personally elevated this situation to the lofty status of public hilarity. It’s not just your flagrant ignorance of the law. It’s not just your ridiculous allegations (you “could not conceive a more defamatory reference”? Who gives a fuck what some moron can conceive of? You’re a friggin’ solicitor, the scum on the bottom of a barrister’s shoe, you loser).
It’s that you violated the one rule of the internets that no one, ever, should violate. You tried to command someone not to publish conclusive proof that you suck.
Welcome to the internet, Stuart Gibson. You did something really stupid, and the internet is not impressed. In fact, it was a really bad idea. And despite your command to the contrary — in fact, because of it — it’s published.
Stu looks like he’s in pain.
If he had a decent agent, he could probably monetize that image. Maybe restless legs syndrome?
My guess would be opioid-induced constipation. I had that for a week after some minor surgery and I had that exact look on my face most of the time.
If that was the best you could get your hair to behave for your Official Headshot you’d look pained too.
Don’t get me wrong: my hair is currently about an 8.5 on the Ridiculously Hilarious scale. But I’m not posing for my Official Headshot, either.
I considered suggesting Hair Club for Men, but figured that would require a trigger warning.
It’s not nice to pick on someone’s hair. Trust me, you’d lose a competition between us as to who has the best hair.
You should start an SJ spinoff of the Luxuriant Flowing Hair Club For Scientists, http://www.improbable.com/hair/ Show the world that you can dish praise, not just dirt.
How did this become about your hair?
Scott you are right on all counts. No one can command anyone to remove anything off the net, especially in the US. And you are right, you are immune from suit. But, looking at it from a non-US perspective, he can sue and obtain a judgment in Australia. Yep, it wont be enforceable against you or anyone else in the US. That’s right too. But should that guy obtain an Australian judgment against you or anyone else, it would be enforceable and would be recognized virtually every where in Europe.
I assume you have no assets in any European country or bank accounts or down in Kiwi land, but for others, like a business that has an office in a European country or has bank account or sales that go through Europe/Kiwi land this could and often does cause an issue. There have been instances where people also cite the SPEECH Act etc. and assume they are immune but find out that their summer home in France all of a sudden has a lien placed on it due to a foreign judgment. And Europeans relish doing this, especially to Americans. And the Americans usually come in citing the First Amendment, the CDA, the SPEECH Act, and you know the European response.
Or space aliens. “But if the facts and law were all different, then it would all be different.” Brilliant.
According to Christopher, it affects not just space aliens, but also the .001% of the .01% of Americans that are rich enough to have assets abroad and asshole enough to rub furriners the wrong way. (In other words, those whose own countrymen wouldn’t mind spectating at their comeuppance.)
On the one hand, some of those laws are just plain nuts (although, to their credit, I think at least the UK has been doing some significant reform lately), so a priori I could believe Christopher.
On the gripping hand, if the press isn’t writing about this being a problem for Trump, it sure as shit isn’t a problem for thee or me.
It is not just the 0.001%. Ecommerce companies, students, summer vacationers, and so on. Also, even if it is not an enforceable judgment in the US, a foreign judge, if you get a nasty one, can enter contempt and discovery orders, which if you fail to comply, can cause you headaches when you travel into the EU zone. Any such decision can also come up on a Google search thanks to the sprawling legal websites that publish decision. Again, no CDA or other protection there except for a poorly worded EU directive which is really weak. I am not agreeing with the policy but just correcting your broad over generalization.
Yes, there are still some sucky laws. Yes, in some cases, journalists are still being silenced; yes, Amanda Knox ran afoul of some of the sucky laws; and yes, decisions like Delfi v. Estonia are disasters for large companies posting unmoderated comments.
And yes, if SHG vacations in Europe and starts spouting holocaust denial bullshit, or winds up in Italy next to a dead body and says mean things about his interrogators, he might find himself in some trouble.
But SHG’s “space aliens” comment accurately captures the probabilities involved in the series of events that would land him (or the average US student or summer vacationer) in hot water in the EU for writing honest opinions backed up by substantially true facts about an Aussie wanker, even if that wanker does have maverick hair.
Probability-wise, SHG’s got much more pressing issues to worry about, like avoiding almost certain arrest for not having a front license plate. And lightning strikes.
I’m sitting here trying not to laugh, failing dismally, and trying to tell people that these two are not indictable of Aussies. In fact most of us (as can be seen by the comments on Mike’s post) think exactly the same as yourselves.
As for Mr Gibson’s letter – well it’s a keeper! 🙂
You guys don’t get it. The subject of the ridiculous post resides in Australia. The website and company are in California. I don’t doubt that they will get a judgment in Australia. And I don’t dispute that the judgment will in all likelihood not be enforceable in the US. But you guys are taking a very narrow view of this all. Americans love to apply their law extraterritorially. FIFA indictment, long arm jurisdiction in civil cases etc. Many foreign courts frown on this. So when they have an American defendant, they can often be hostile. Say this Australian gets a judgment in Australia — which Scott doesn’t comment on. The Judge then starts entering discovery and contempt orders, then what? Yep, they are also not enforceable. But if that Techdirt company or its owner ventures anywhere else in the world, and he just might have the money, then it cant hide behind the CDA or First Amendment or the SPEECH Act. American law is great, but foreign courts don’t apply it. And if you just sit in the US then you can ignore it. If you have plans to do business outside the US and you have a foreign court judgment against you, it’ll catch up with you eventually. That’s a point that everyone just blows off….
We get it, but here’s the problem. Is our nasty American free speech thing, plus Section 230 safe harbor, to be disregarded in favor of whatever country has the strongest feelz law? So this mutt of a lawyer can get a judgment in Australia? Should the internets now collapse and cry?
And if we play that game, then perhaps the US should pass a law for extraterritorial civil actions where we can sue nationals of other nations for what they did in other nations, just to get a judgment in case someone ever shows up here? We can start a watch list, and when they step off the place, strip them of their belongings, their clothes, their shoes, their fillings?
We can create a whole industry of lawyers suing people in other countries over crap, to get default judgments, just in case. They can’t defend because they’re not here. Allege anything, no matter how nonsensical, because you’ll win by default, and do it by the millions because eventually someone will show up and we can grab some loot.
So yeah, we get it. We just don’t give a shit. Because it’s bullshit and we’re not a bunch of pussies who are going to shut up because some flaming asshole like Gibson commands it. We get it. You would too if you had a pair.
Scott,
With all due respect, there is a whole industry of lawyers that do just that but not with defamation usually. It is called judgment arbitrage and it is rife with fraud and stuff that would make you yell and scream in horror. In fact, judgment arbitrage is sold as an investment or asset class that makes transnational lawyers very rich. Here is an example: Party A sues Party B in Canada and obtains a default judgment. Party A then gets the judgment recognized in, let’s say Arizona. You see, it is now domesticated in the US. Then Party A takes that Arizona judgment to Delaware where Party B has assets and under the Uniform Foreign Money Judgments Recognition Act it is recognized. This is actually a case from Delaware but I am not allowed to post links here so just google judgment arbitrage and you’ll come across the Delaware decision. These types of proceedings cant even really be contested because of the Full Faith and Credit clause (Delaware court must give full faith and credit to Arizona judgment) and voila. Party B who ignored suit in Canada is really not doing well. Your blog doesnt allow links but if you search it online, it is an industry where transnational lawyers make their living.
Whatever judgement is issued it will be a civil judgement under the relevant Defamation legislation within Australia (most probably Victoria). No matter what the court WILL NOT enter into contempt proceedings since contempt doesn’t work that way in Australia.
All that will occur is that numbnuts in his infinite stupidity might scream till his black and blue to the Courts in Australia to get an enforcement order sent to a USA court. The court will then look at it in the USA and under my understanding of the current SPEECH Act will say NO. That will be the end of it… well other than the blustering to the media that this client (and his counsel) have done before. Especially since we actually have caps on damages. If anyone from techdirt in a business or private position flies into Australia NOTHING WILL OCCUR TO THEM since they are civil orders ONLY. If on the other hand it was criminal defamation (there is such a thing in Aust though very rarely prosecuted and only by LEO’s then never by private individuals) then maybe they might be detained…maybe!
Yes your EU laws on defamation might work differently, not Aust ones though.
One might hope that a court in Australia would refuse a default judgment against a party over which it has no jurisdiction, aside from the vapidity of the claim. Whether that will be the case depends on Australian law, about which I know nothing and don’t care enough to research.
But if countries decide to allow civil judgment without regard to jurisdiction, it opens up a great many problems for their own citizens as well as those of other countries. If that’s the war they want to wage, then no one will be happy about it. Our cherished First Amendment rights will not be subject to the most butthurt assholes in the world, and if we need to go to legal war to protect them, so be it.
An Australian court, will not apply American jurisdictional principles. Most foreign courts are highly critical of the US approach to jurisdiction (long arm, extraterritorial) etc. and this criticism is hypocritical because sometimes they do the same….As for jurisdiction, if the person is a resident in Australia and the purportedly defamatory post defamed him Australia then he would have jurisdiction under Australian law. As for contempt, yes it applies in civil matters in Australia as well. It is called “Disobedience contempt.” Americans have the same thing in the civil rules: Fed.R.Civ.P. Rule 37.
Here is the reverse of what you are saying. You say these claims are vapid etc and should not be enforced in the US if a default judgment is obtained. But let’s reverse the facts. If a default or regular judgment is obtained in the US, US courts go haywire when foreigners who have never stepped foot in the US don’t comply with their discovery orders, writ of garnishment etc even if the claims are completely contrary to the other party’s country’s laws. France specifically has a blocking statute against American discovery requests. Other countries also have blocking statutes against all American court civil judgments. But US courts often don’t care. So why should an Australian judge care?
Anyways, the guy is wasting his money pursuing this type of litigation. Unless he can get a multi-million dollar judgment (and I have no idea how much money the company he is suing has), the amount of expense and cost it will take for his lawyers to shop around that judgment outside the US will outweigh any benefits.
And you’ve wasted my time and bandwidth, not to mention all the words you murdered, with this ridiculous tangential horseshit.
An Australian Court will not look at the SPEECH Act. An Australian court, say in Victoria, will look at Australian law and determine whether the post constitutes defamation under Australian law. The SPEECH Act is also simply a blocking statute that will make collection a very difficult endeavour but court’s dont consider collectability of their judgments when rendering a decision on a claim. Americans don’t look to French law to establish a defamation claim. Similarly, French, Australian whatever don’t look to American law.
What part of “The court will then look at it in the USA” of my post alluded to the idea that an Australian State Court would even hesitate to pass judgement due to an American (or even another Australian State’s ) legislation?
Further to your comment to SHG in regards to contempt . Yes civil contempt does exist, So sadly does Disobedience contempt (which is NOT called that) no matter how much the ALRC has tried to remove it from our system, but it would NOT apply to this situation after a judgement for damages was concluded. It would ONLY apply during the proceedings and then only normally for exigent reasons and never for non-residents who are unlikely to enter Australian territory in the immediate future. Unlike the idiocy of the UK/EU courts.
SJ – Australia does not have an equivalent of the First Amendment! Mocking someone can be defamatory under Australian law and juries will set a very high tariff if they conclude that there was malice involved!
Gibson marking his letter “Not for Publication” is a legal mechanism of pointing out that the matter is before the courts and, in Australia, is subject to the rules for avoiding prejudicing potential jurors.
As far as suing Google is concerned – there is a precedent here – Duffy v Google Inc (No 3) [2016] SASC 1 (21 January 2016) – Google lost at appeal, damages were awarded as were costs on an indemnity basis (i.e. the lawyers get paid by the defendant irrespective of the size of the damages awarded the plaintiff) and Google will pay or have assets here siezed.
This has implications for individuals from the US if they lose a defamation action in an Australia court (by default, if they don’t make an appearance) costs can be assessed against the defendant – this then becomes a debt to the lawyers and civil debts in Australia can be enforceable in the US!
Maybe you missed the subtext running through the post and comments about how things are different here.
We call that “fee shifting” here, and it doesn’t apply to all litigation in the US, but the SPEECH Act you haven’t read makes it clear that a failed attempt to use a US court to enforce a foreign defamation judgment can actually shift fees back the other way, perhaps leading to some interesting bilateral collection problems.
It’s not trying to enforce a deformation judgment – it’s enforcing a debt forecourt costs and legal services and it is enforceable in the US. The SPEECH Act is irrelevant – you won’t owe for a defamation judgement – you owe for court and legal costs.
We know you don’t care – that’s why you will get chased for the debts you incur!
Your lack of impulse control is duly noted, your mistaken grasp of US law notwithstanding. Judgments for costs and fees are not separately enforceable from the underlying action without scrutiny.
Is there something in the water of Australia that makes people incapable of grasping that total lack of fucks given by anyone here that Australia exists? No, your judgment is not enforceable in the US. It’s toilet paper. And while it’s one thing for a multinational with an existence in Australia to deal with your Aussie feelz laws, it has no relevance to anyone else. Is this impossible for Aussie’s to gasp? Is there no one there with half a brain?
“Is there no one there with half a brain?”
Plenty. It’s just the smart ones know when to shut up. A smart Australian lawyer won’t dare to express agreement with you because, firstly, that bores you and, secondly, they would rather not have the hassle of being sued by Mr Gibson.
If there was anything here that suggested that Australian law mattered, it would be one thing. Gibson is trying to impose his mad Aussie lawyer power on Masnick and Techdirt in the United States, and reduced himself to a total asshole in the process. This is about US law, not Australian law, no matter how much a few Aussies want to show and tell us all about them. In the scheme of Gibson having any chance of being anything more than a joke from down under, he’s got nothing. We’re here. He’s not. And there isn’t a damn thing he can do about it.
Oy!!! *stares at you though sorta agrees*
Sorry if I hurt your feelz. You’ll get over it.
There’s a hilarious follow-up today at Techdirt. I’m guessing that “dribble is cascading down Mr. Gibson’s chin right about now.
There is indeed. If Gibson didn’t beclown himself enough in the first place, he’s now got it locked.