Milroad Trkulja Is Not A Gangster; Stuart Gibson Is, I Suppose, A Lawyer

These days it's not easy for a legal threat to distinguish itself. There are so many of them, and it's common from them to be bumptious and ignorant.

That's why I have to tip my hat to Stuart Gibson, an attorney at the Australian firm Mills Oakley. He has risen above the pack.

Mr. Gibson charges heedlessly into a crowded subgenre: threatening people for merely talking about you. The genesis of his bluster is a 2012 post at Techdirt discussing an Australian court victory against Google by one Milroad Trkluja, who was displeased that Google searches of his name brought up pictures of an underworld figure. That's not so bad; Googling my name brings up pictures of Jabba the Hutt cosplay. Anyway, Techdirt's article criticized the decision but made it perfectly clear that Mr. Trkulja was not, in fact, a gangster, and that his image only got connected with a gangster because he had the misfortune to be an innocent bystander in a shooting.

More than three years later, Trkulja sent Techdirt and Google a bizarrely entertaining legal threat complaining about a comment on the 2012 story that suggested that he was the sort of "gangster" who uses courts rather than guns. Trkulja demanded money, the deletion of the offending comment and anything ever written about him, and to block Techdirt. This was amusing and noteworthy; it's exactly the sort of flailing threat Techdirt writes about all the time.

Enter Mills Oakley attorney Stuart Gibson. He sent Techdirt a threat that, while much shorter and less floridly pro-se nutty than Trukulja's, was in its own way just as ridiculous.

This is the rotten core of it:

The matter that you have published conveys false and defamatory meanings including (but not limited to) the following:
Our client is a gangster;

That our client by virtue of his legal claims is incompetent and unfit to be a litigant;

That our client by virtue of his legal claims is a ridiculous litigant;

That our client is a criminal and a participant in organised crime;

That our client is unfit to be a litigant

None of these meanings is defensible. Our client is not a criminal and has never been a gangster nor associated with such persons. Accordingly there is no factual basis for the imputations published.

This is entertainingly preposterous. Techdirt never suggested Trkulja is a gangster; a commenter jokingly suggested he is a litigation gangster. Techdirt's suggestion that Trkulja's legal threat is ridiculous (which Gibson spins as "unfit to be a litigant") is a classic case of opinion based on disclosed facts — the fact in this case being Trkulja's nutty legal threat.

Gibson finishes with bluster about how his firm has enforced Australian judgments against other companies, about how American law will not protect Techdirt, about how Techdirt's free speech defense is "absolute nonsense," and so forth.

Gibson is, of course, utterly full of shit. This is exactly the sort of bullying threat that the SPEECH Act, 28 U.S.C. section 41202, is designed to render impotent. Australia is beautiful and its people are lovely and its laws have many things to recommend them but, with respect to protection of free speech, it is a jurisprudential shithole. Congress passed the SPEECH Act to ensure that law-thugs like Mr. Gibson could not silence speech by obtaining defamation judgments under legal regimes that lack adequate protections for free speech. Mr. Gibson is free to get an Australian judgment against Techdirt — indeed, Australian courts are popular with libel tourists and folks with ambitions to control speech worldwide. But unless Techdirt has assets in Australia, that judgment will be worthless.

Under the SPEECH Act, American courts won't recognize and enforce foreign defamation judgments unless the party seeking to enforce them carries the burden of proving that (1) the foreign court's exercise of personal jurisdiction over the defendant satisfied American concepts of due process; (2) the foreign court's ruling complied with Section 230 of the Communications Decency Act of 1996, which says that web sites can't be held liable for defamation for comments left by third parties; and (3) either the foreign court offers as much free speech protection as American courts, or American courts would have reached the same result on the defamation claim. Stuart Gibson's threats on behalf of Mr. Trkulja fail all three of those tests. Australia has no plausible personal jurisdiction claim over Techdirt; Gibson and Trkulja are trying to hold Techdirt responsible for a comment left by a third party; and Trkulja's and Gibson's silly claims would never stand up to First Amendment scrutiny. Among other things, Australia apparently treats truth as a defense, requiring defamation defendants to prove that their statements were true, rather than requiring the plaintiff to prove that they were false. That, standing alone, is enough to fail the SPEECH Act test. Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 489 (5th Cir. 2013) (Canadian judgment was not enforceable under SPEECH Act because, among other things, it placed burden of proving truth on defendant). Moreover, Mr. Gibson's suggestion that Techdirt can't make fun of Trkulja for writing a very silly threat is sheer idiocy, and I suspect would be even under Australian law.

One can imagine why Mr. Trkulja would act this way — he's an angry litigant, not an attorney. But why would Stuart Gibson, who appears to be a real-life lawyer at a reputable law firm, act this way?

There are several possibilities. One is that Stuart Gibson is willfully ignorant of relevant American law. This theory has some appeal, especially when you consider that this is the entirety of his analysis of the SPEECH Act in his threat to Techdirt:

You are not protected by the Speech Act.

Another possibility is that Stuart Gibson knows the relevant law but is hoping that Techdirt doesn't — that he hopes that Techdirt is ignorant or easily intimidated enough to yield to legally meritless demands. This merely demonstrates another form of willful ignorance; the briefest investigation of Techdirt's history would reveal that it stands up to stupid legal threats all the time, and in fact publicly mocks them. If this is the case, then Gibson has failed to follow one of the core rules of writing an effective and non-own-foot-shooty takedown letter: he didn't investigate his target.

A third possibility is that Stuart Gibson is a hotheaded buffoon incapable — whatever he knows or doesn't know — of maintaining communications discipline. This explanation, too, has a certain appeal. I wrote Mr. Gibson seeking comment and some of his responses suggested a failure of self-control:

Ken
What you can say is that I have challenged Mike to accept Service of Proceedings and to espouse his theories in Court here.I have been trying to effect Service on him.

We are at this time trying to serve him/it.
I do not think it understands Australian Defamation Law.
We have no Free Speech law in this country.

Ken
What are you doing writing for this trashsite

And so forth.1

There is a type of gormless lawyer who becomes incensed when his or her idiotic demands are not met with immediate compliance; Mr. Gibson appears to be such a buffoon.

Finally, it's possible that Mr. Gibson is actually very clever and is just setting this matter up for Mr. Trkulja for another Australian lawsuit against Google seeking damages for the existence of websites that do not fluff him. Lord knows such train wrecks are possible there.

Mr. Gibson and Mr. Trkulja perform useful service: they illustrate exactly why Congress was right to pass the SPEECH Act, and exactly why we should be thankful for America's unusually broad and robust defense of free speech. Do you want people like Stuart Gibson dictating what you can say and whom you may ridicule? After all, Mr. Gibson is the sort of lawyer who says "we have no Free Speech law in this country" — and is happy about it, because it allows him to act like . . . well, like a gangster.

  1. Our full correspondence is as follows:

    Dear Mr. Gibson,

    I am an attorney, a member of the First Amendment Lawyers Association, and a writer. As a writer, I focus on free speech issues, particularly those related to the internet and internet culture.

    I'm preparing to write about your February 1, 2016 threat letter to Techdirt.com. I write to inquire if you have any comment about it, and whether you would be willing to respond to a few questions about the letter and your position.

    Thank you,

    Ken White

    Dear Ken
    Thank you but I wouldnt bother responding to Techdirt in this fashion.
    Kind regards

    Thank you. When I write the post I will indicate that you declined to comment.

    All the best Ken

    Ken
    What you can say is that I have challenged Mike to accept Service of Proceedings and to espouse his theories in Court here.I have been trying to effect Service on him.
    Regards

    Mr. Gibson:

    I will quote you. Although that is completely ridiculous to the point that I'm beginning to question whether you suffer from mental illness. I sure hope your client isn't paying for this.

    Why so.
    We are at this time trying to serve him/it.
    I do not think it understands Australian Defamation Law.
    We have no Free Speech law in this country.

    Ken

    What are you doing writing for this trashsite

    Mr. Gibson:

    You seriously need to consult with an adult. You are showing terrible judgment, making your client's situation worse, and trashing your own reputation.

    Ken

    I don’t think you have any idea what you are talking about.

    Would you mind explaining to me how I am incorrect in my legal assertions instead of emailing me dribble.

    Regards

     

Last 5 posts by Ken White

Comments

  1. Mu says

    Maybe we can get Wikipedia to change the Streisand effect into the Streisand-Gibson effect. Double names are always much more powerful.

  2. says

    "But why would Stuart Gibson, who appears to be a real-life lawyer at a reputable law firm, act this way?"

    Broadly speaking, there are two reasons otherwise intelligent people do stupid things:
    a)Sex.
    b)Money.

    I lack sufficient information to guess which, if either, is involved here.

  3. That Anonymous Coward says

    o_O

    You know what this guy needs? A good long sitdown with RepBro.
    (something something contact buzz & snacks)

    Stuart have a TimTam
    Why?
    Because you're kind of a wanker when your hungry.
    Better?
    Better.

  4. Rsteinmetz70112 says

    Perhaps Mr. Gibson is representing Mr. Trkulja in other matters for which he collects a great deal of money. Certainly writing a few letters to retain a client could be worth it.

  5. Sasha Glass says

    Good work overall, but there are some tactical errors in your correspondence with Gibson. I provide consulting services for trolling to elicit response if your company is interested in engagement.

    On the house: the *ad hominem* on your part came too quickly. It is always better to curry favor, and then to insult. The double offense of the insult and falling for the duplicity makes the correspondent lash out with even more savory and quotable bits.

  6. Michael K. says

    because it allows him to act like . . . well, like a gangster.

    Boom. I love how you brought the whole thing full circle there. Now all we need to do is game the Google Image Search results for "Stuart Gibson."

  7. Roger Strong says

    On Obama's 2012 re-election Donald Trump declared "We can't let this happen. We should march on Washington and stop this travesty." People joked that Trump thought he was Napoleon – a person thinking that they're Napoleon being an old cliché for mental illness.

    Mr. Gibson's plan to have Mike fight the case in Australia court, is clearly channelling Trump's "We'll build the wall and make Mexico pay for it" and other plans to enforce his policies in other countries.

    Perhaps Trump really is the new Napoleon.

  8. KronWeld says

    "Would you mind explaining to me how I am incorrect in my legal assertions instead of emailing me dribble."

    I rather like how he tries to get you to do pro bono legal work for him. Give him legal analysis of his legal claims. Ha.

    I know you do pro bono work, but not for AssHats. Besides, Techdirt already did one for him.

  9. Hulinut says

    Now all we need to do is game the Google Image Search results for "Stuart Gibson."

    nooooo, don't do that, some pretty awesome surf shots from another australian Stuart Gibson there, maybe do it for "Stuart Gibson Lawyer" or something

  10. Thom says

    I learn a lot of things from Popehat, and today is no exception. I hope I have a chance to use, "gormless," in polite conversation soon!

  11. Mike says

    Interesting, although I thought it a bit odd reading your email correspondence that you were so quick to fling the "you must suffer from mental illness" jab in response to a relatively benign statement.

  12. Rev Les Crowley says

    Clearly, Australian libel judgements can't be enforced in the US, but can they be enforced in other countries, such as the EU? How about Canada?

  13. Eric says

    That's not so bad; Googling my name brings up pictures of Jabba the Hutt cosplay.

    Ken, I am disappoint. I couldn't find any pictures of Jabba the Hutt (cosplay or not) among the first couple of pages of pictures.

  14. Neill says

    As an Australian myself, I can't begin to express how proud I am that one of our homegrown lawyers has finally hit the big time and been featured on popehat.

    No really, words utterly fail me :-)

  15. Fasolt says

    I must say, that 54 page diatribe was indeed entertaining. And he didn't want just legal fees, he wanted a sum of money in lieu of damages (from page 8). What, paying damages is more painful than paying a sum of money? Is that another way of asking for a settlement? Does paying damages mean the defendant gets to have their ass kicked by a kangaroo instead of paying a sum of money?

    The Google Inc. is responsible for all defamatory publications on any worldwide website…?(from page 3).

    Well, that will certainly make filing a defamation suit against Google easy. Google should just post their legal service address and the whole world can send their paperwork there. I think Google will need their own post office for all that mail, though.

    And congratulations to you, Mr. Trkulja, for your $425,000 victory over Yahoo! and Google (see page 9 of the diatribe). Be sure and invite everyone to the party when those checks come in the mail.

  16. alexa-blue says

    I learn a lot of things from Popehat, and today is no exception. I hope I have a chance to use, "gormless," in polite conversation soon!

    It's easier to work in than "snort my taint".

  17. Kaemaril says

    "What you can say is that I have challenged Mike to accept Service of Proceedings and to espouse his theories in Court here.I have been trying to effect Service on him."

    Does this translate as "I'm not smart enough to realize that Mike Masnick is in the US, and an Australian Court has no jurisdiction over him" or "I'm hoping that Mike Masnick is dumb enough to be lured to Australia so I can sue him'?

  18. Agammamon says

    Rsteinmetz70112 says

    February 15, 2016 at 10:43 am

    Perhaps Mr. Gibson is representing Mr. Trkulja in other matters for which he collects a great deal of money. Certainly writing a few letters to retain a client could be worth it.

    Oh absolutely. However you'd think the guy would do a modicum of research beforehand so that he doesn't come off looking like a complete incompetent to his high-paying client.

    Because now he's making his client look worse and I would bet that his client is not the sort of person to be loyal and understanding of other's mistakes.

    Because this is the sort of letter that works a lot better if the writer shows an understanding of the problems of inter-jurisdictional dispute. Instead of flatly saying that the recipient doesn't have free speech rights and is not protected by the Speech Act, he could have pointed out that they know exactly what burden they face and that they have the evidence needed to surmount that burden.

    Its a lot scarier for a lawyer to pre-emptively explain to you what your defense options are and then show he know how to shoot them down than for that lawyer to come in making baseless threats.

    I mean, IANAL and I could have done a better opening letter after 30 minutes of online research on the subject than this guy did.

  19. says

    Our Speech Act is an excellent start, but Rev Les Crowley highlights a continuing deficiency– no protection overseas. A useful additional step would be to allow Americans damaged unjustly by overseas libel verdicts and collections to sue the culprits and their lawyers in this country. We should specify, however, that such verdicts are only *enforceable* against miscreants and their property in this country, rather than contributing more to international legal confusion.

  20. Fasolt says

    Stuart Gibson also represented the Church? of Scientology.

    If we can get Gibson to represent Crystal Cox, that would complete the bat-shit crazy trifecta.

    Hey Ken, are international censorious asshats eligible for the Popehat Censorious Asshat of the Year award?

  21. Fasolt says

    Never mind Ken. I have a short memory. How could I forget last year's candidate, Turkish President Recep Tayyip Erdoğan?

  22. melK says

    I learn a lot of things from Popehat, and today is no exception. I hope I have a chance to use, "gormless," in polite conversation soon!

    And I find a wikipedia page I'd not seen before.

  23. That Anonymous Coward says

    @Fasolt – I think many of these claims are being driven by the 'she I won't bother to name Oz Edition' (No seriously if you say her name she shows up and goes timecube batshit) "winning" against Google.

    Take a judicial system that is somehow more removed from the idea of tech than the US system, and tell them Google is publishing bad things about you for daring to index pages & show snippets. Make all sorts of claims about the string of horribles that are all Googles fault, not the fault of the people who actually posted the things on a 3rd website. Run around capturing any mention of your name to submit to the court in a play trying to drive the award amount up even further, attempt to get people fired for daring to mention the case and disagreeing with the outcome, remove any doubt that you are insane by attacking people publishing to your blog (ignoring that behavior is what you are decrying in the first place).

    Now add a dash of right to be forgotten and you have a perfect storm where people are more obsessed about what Google returns about them. The problem is the more attention they draw to these old stories only raises the profile of them, and starts a new cycle of attention. A much better play would be to do good things (not just hire some pothead to manage your reputation online) and keep doing good despite your past.

    You can always find someone willing to tilt at your windmills, for a price. They are about getting paid and well the bigger the problem becomes the more they can earn… with that metric perhaps people should consider if it is the best advice for the client or the paycheck.

  24. says

    I'm just going to leave this link (video and transcript) to Gibson yabbering on a major Australian Media investigative news show about how one of his clients is as innocent as the fallen snow – that didn't do him (or his client) any favours at all.. though when you realise who his client is… well

    http://www.abc.net.au/lateline/content/2013/s3698162.htm

    Oh and thanks Ken for not being too harsh on Aussies… unlike SHG who hurted my feelz! (well…if I had them..LOL)

  25. Patrick Maupin says

    I think you misspelled "Milorad" by swapping the "o" and the "r", thus rendering the road to the mill.

    Perhaps you can atone for this by deleting the "a" instead; then you can call him "Milord."

  26. says

    Oh and it's also Milorad Trkulja not Milroad.

    The same Milorad who got a lifelong ban from the Serbian Orthodox Church of Australia for antichrist and antichurch activities for holding himself out to be (and this is quoted because I could not type this without giggling hysterically) a "self-proclaimed 'conjurer', who advertises himself in the Croatian press as a 'natural healer' who 'removes bad luck, black magic, evil eyes, voodoo and other curses…' (…) 'expert for sex and interpersonal relationships…".

    The same Milorad who advertised/s in "Cosmopolitan, Cleo, New Idea and Woman’s Day, and various newspaper including Herald Sun, Neos Kosmos and Jewish News as a “Natural Born Psychic” & “depression healer” when he is NOT qualified to treat depression. (The quote from the police report [at 7] on that link is interesting)

    @That Anonymous Coward – Calling this guy the Aussie version of Crystal (Yes I will name her here.. bwahahahaha) is denigrating Ms Cox herself. She was never this wacko, just delusional.

  27. hymie! says

    @Hugo:

    When you are overseas, you are subject to the law of the land you are in.

    When you are in America, you are subject to the laws of America.

    The SPEECH act protects Americans in America from foreign judgements contrary to the laws of America. There is afaik no way to protect Americans in other countries from the judgements of those countries.

  28. Ashe says

    Clearly, Australian libel judgements can't be enforced in the US, but can they be enforced in other countries, such as the EU? How about Canada?

    IANAL, but given both Canada and Australia operate under the same basis of Common Law, and given Canadian courts tend to believe in comity, I would not be surprised if a Canadian court seriously considered respecting an Australian judgment. In this case though, I would imagine Techdirt has no more assets in Canada than it does Australia, so from that angle, it is likely moot.

  29. Kevin says

    I think this analysis overlooks a fifth possible explanation for Gibson's behavior: he knows the suit has zero chance of success, but is pretending not to in order to generate billable hours.

  30. Bloviator says

    @Derrill
    "Sure there is. Don't go there.

    There are pros and cons to my plan."

    Cons of not visiting OZ. I heard there are some very nice beaches there.

    Pros of not visiting OZ. Home to 90% of the animals likely to kill a person.

  31. Nullifidian says

    @hymie! – Hugo wasn't proposing that Americans going abroad be protected from foreign laws by the American government, but advocating a kind of anti-SLAPP statute for libel tourism, allowing the defendants in libel tourism suits to countersue the plaintiffs in American courts.

  32. Dan Weber says

    Did I see Mr Gibson shit on an Arby's floor and shove a judge into a woodchipper recently? Or was that my brother?

  33. Robert says

    "Dribble?" You're emailing him "dribble?"

    *consults dictionary*

    That's something I'd like to see you pull off, emailing dribble.

    Drivel, on the other hand…

  34. says

    Nullfidian is correct. My intention is not to support an American being sued in Britain for what he writes in a British newspaper, but rather for what he writes in a non-British, especially an American newspaper. I would also target attempts to collect libel-tourism verdicts in third countries.

  35. Castaigne says

    I am digging, just digging the further responses to this so-called solicitor. I wonder, did he poach the whole "guts" bit from the Cernovich School of Manly Law?

  36. NickM says

    Bloviator is incorrect. Australia is not home to 90% of the animals likely to kill a person.
    Africa and South America have quite a few of their own.
    However, 90% of the animals in Australia are likely to kill a person.
    Govern yourself accordingly.

  37. Rob says

    Mark Wing – "This post has taught me not to fuck with Australia."

    You really don't want to fuck with Australia. You get covered in dust, kangaroo shit and flies…

  38. SJE says

    While Australian law may be more friendly than US law to those asserting libel, Australian culture is far less so. Most Australians would just laugh at Gibson. He might have a cause of action to get into court, but I wonder how far the judge will let him go.

  39. That Anonymous Coward says

    @G Oh no not CC, I was thinking of the one from the land down under. Stuart has given much "expert" commentary on her case vs Google. CC is a nutter, but this other one is a whole different level.

  40. Elvis says

    I mean, I don't think a judgement against you in Australia is just something to laugh at. There are probably plenty of countries that would be happy to enforce it, and so you need to make sure you don't have assets in any of them, not just now, but for as long as they might try to enforce it.

  41. Procopius says

    I was so sorry to see Larry announce that Stuart Gibson had also represented the Church? of Scientology. I was hoping that he was not a lawyer at all but perhaps Milorad Trkulja's barber, who wrote the letter to keep him as a client.