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Music promoter wins $225,000: Trkulja v Yahoo! Inc LLC & Yahoo! 7 Pty Ltd [2012] VSC 88

March 22, 2012
Damages, Publication, Trial

Michael Trkulja was born in Yugoslavia in 1950. He migrated to Australia at 20 and in the early 1970s, while working in a travel agency business, began promoting singers and entertainers in the Yugoslav community. His work as a music promoter grew and he ultimately became a music promoter who worked full-time and became well-known. He regularly appeared in the media, particularly the ethnic media and in the 1990s had his own television show on Channel 31, “Micky’s Folkfest”. The purpose of the show was to unite the local Yugoslav community, and the evidence was that he became so well known that around 90% of the Yugloslav community (300,000 – 400,000 people), would have known him.

From January 2009 to December 2009, an article was published by the defendants through the “Yahoo! 7” search service on a website entitled “Melbourne Crime”. Beneath the heading were photographs of nine men, who the defendants admitted were, or were alleged to have been engaged in serious criminal activity in Melbourne. One of the nine photographs was Tony Mokbel, another Dennis Tanner. Underneath the photos were six links, and underneath those links, the heading of an article “Shooting Probe urged in November 20, 2007.”

To the right of the article was a large photo of Trkulja and then an article:

“Police Chief Christine Nixon has been urged to re-open an investigation into an unsolved murder attempt. Former music promoter Michael Trkulja was shot in the back by a hitman wearing a balaclava while dining at a St Albans restaurant in June 2004.

The would-be killer fled after his pistol jammed as he prepared to fire a second shot at Mr Trkulja, who had been enjoying a Sunday lunch with his elderly mother.

A Victoria Police document reveals detectives dropped the investigation because of a lack of evidence.

But Mr Trkulja, 58, now claims to know the identity of the hit man and those who hired him.

He says he has passed the names to the police.

`He (the hit man) was offered $10,000 to kill me. I know who sent him and they know that I know who they are’, Trkulja told the Herald Sun.

`I’ve told the police. I just want justice.’

`Nobody should be shot like this.’

Mr Trulja’s lawyer, high profile solicitor George Defteros, has written to Ms Nixon seeking a fresh investigation and the request is being considered.”

 The plaintiff sued and pleaded 3 imputations arose from the article:

  1. the plaintiff is a criminal;
  2. the plaintiff was so involved with crime in Melbourne that his rivals had hired a hit man to murder him;
  3. the plaintiff is such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a website that chronicles crime in Melbourne.

The trial ran before a jury for 4 days in March. Yahoo! did not run a positive

The defendants

defence. It ultimately admitted publication, but submitted that the article did not convey the imputations and denied that the plaintiff had been defamed. This meant that the question of whether the indexation of the article on the Yahoo search engine constituted publication was not determined.

The jury concluded that the article carried imputations 2 and 3 and those were defamatory of the plaintiff. It was then up to His Honour Justice Kaye to assess the damages.

In assessing the damages, Justice Kaye referred to the following evidence:

  • when the plaintiff found out about the article, he was shocked, devastated and almost in tears;
  • the plaintiff asked Yahoo! to take the article down. It denied publication and refused;
  • the plaintiff gave evidence that around 500 people had spoken to him about the article;
  • at a wedding in January 2011, two couples who had been designated to sit at his table refused to do so, asserting that they would not sit with a criminal;
  • before the article, he would be invited to 25-30 weddings a year, that number declined and in 2011, he received no invitations;
  • on a number of occasions, he went into a shop, people recognised him and immediately left;
  • other witnesses had received comments about the plaintiff to the effect that he was a criminal; and
  • the plaintiff had also sued Google in respect of the same article;

His Honour concluded that:

  1. before the publication of the article, the plaintiff had a widespread reputation as a person of good repute in the Yugoslav community;
  2. it was unarguable that the imputations that were conveyed were particularly grave;
  3. the article reached a widespread audience and thus the damage to the plaintiff’s reputation was similarly widespread;
  4. the fact that the material remained available through the Yahoo! search engine, without being removed, served to increase the damage to the plaintiff’s reputation throughout the community;
  5. the article caused significant grief and distress to the plaintiff.

While aggravated damages were refused, His Honour still concluded that the plaintiff was entitled to damages of $225,000 plus interest of 3%, so well done to the plaintiff. Having said that, he will probably be waiting for the appeal period to expire before he pops open the champagne. And after that, the plaintiff still has his case against Google, although recent developments in the UK in Google’s favour could well have something to say about that one.

Justin Castelan Administrator