back to article Google defamed Australian man with links to gangster

Antonios 'Tony' Sajih Mokbel is not, by many accounts including the Australian TV series Underbelly, a very nice chap. The show details how Mokbel was involved in a violent gang war in the Australian State of Victoria, which recently sent him down for 22 years and confiscated $AUD18million of assets said to have been generated …

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Anonymous Coward

Hope this holds up.

The famous "Do No Evil" attitude at Google's headquarters has long since succumbed to the sheer uncontrollable mass of data Google accumulates about... er... just about everybody. Like it or not, these days Google is Big Brother.

The problem is, they know it and they refuse to do anything about it. They knowingly kick existing privacy laws in the groin in just about any country. Because it's convenient to not adhere to laws that prohibit collecting and connecting data about people without their explicit consent. They're a public business after all; they have to make their shareholders happy. So far, so SOP for just about any company dealing with massive amounts of customer data. They all try to squeeze a few extra bucks out of it by selling it to advertisers, secret services and other criminals.

So, no surprise that the runaway gathering and automated correlating of data leads to perversions like the one that hit Mr. Trkulja. The only thing that can get the data glommers (again, Google aren't the only ones) to fix their algorithms so that this sort of data mis-evaluation won't happen again is if the cost for this sort of mistake rises above the cost of fixing things. So I hope the settlement is big enough to kick the Chocolate Factory in the butt so they notice. Or at least do something when the party impacted asks them to.

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Re: Hope this holds up.

Best way to stop this is not fines or adding to the cost of operating a search engine it is throw the senior executives in jail for a time.

They will quickly find ways of protecting peoples data and protecting reputations.

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Anonymous Coward

Re: Hope this holds up.

Jail time would be part of the "costs..."

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Silver badge

And of course, everybody knows ...

... everything that you read online is absolutely 100% accurate, and every single search engine is infallible.

::rolls eyes::

If I search on my given name, I'm connected to Charles Manson's "family". I just laugh it off, because the entire concept is patently daft (I was too young, and in the wrong place at the time). I use it as a "learning tool", to show my nieces & nephews that you can't really trust everything that you read online. So far, it seems to be working ... The oldest amongst 'em enjoy finding similar anomalies with their own names. The second-eldest niece was apparently an acquaintance of Robert Franklin Stroud, despite being born some 40 years after his death :-)

One wonders what Mr. Trkulja is actually griping about ... too close to home?

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Stop

Re: And of course, everybody knows ...

Nice last line there, jake!

You gotta love that old canard of "No smoke without fire". Classy.

Downvoted you because although you make excellent points, you have perpetuated the defamation of Trkulja on the basis of ignorance and thoughtlessness.

I posted below on the sequence of events leading to the legal proceedings so I'm not going to do it again, but I will say that Michael Trkulja has NO CONNECTION to criminal activity, he was having a meal in a public place and was shot as a bystander.

As to your other points, I largely agree with them. Personally, I don't think that it was a big deal. Anyone clicking on a link would have seen that Trkulja was a victim of crime and not involved. It was only the casual assumptions that were at issue.

However, in numerous cases the courts have held that while internet-based information services (forums, etc.) are not personally responsible for any offending information they provide, but they are responsible if they are informed that information they provide offends laws and they DO NOTHING about it. It is why forums are moderated. It is why Twitter was in trouble recently in Germany.

It wasn't that Google provided the results, it was that when informed of a non-trivial and specific problem, they did nothing about it.

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Silver badge

"non-trivial & specific" (was: Re: And of course, everybody knows ...)

Eh? How do you (or anyone else) figure that it's non-trivial? After reading up on it for about three minutes, that's about as trivial a connection as I can possibly imagine. Nobody with a brain would possibly connect Mr. Trkulja with the criminals involved.

Does this mean that in Australia, the Onassis Family could successfully sue the Kennedy Family, because Jackie turns up in searches on the JFK assassination?

From here, it looks like Mr. Trkulja's actual problem is clinical Paranoia ... And the court AGREED that was a valid reason to sue? The mind boggles ... We truly are a global litigious society, alas.

Stop the world. I want to get off.

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Flame

@ jake

After defaming Mr Trkulja with your "no smoke without fire" comment, you have the gall to claim "Nobody with a brain would possibly connect Mr. Trkulja with the criminals involved" with a straight face? Don't you have a brain, then?

Then you constructed a strawman to maul, dressed it in a 1960's pink dress and took your argument to absurdities.

You then defamed Mr Trkulja YET AGAIN (twice in one post) with "it looks like Mr. Trkulja's actual problem is clinical Paranoia". So "clinical paranoia" is your considered diagnosis Dr. jake? I assume that your psychiatric qualifications are in addition to your implied law degree. After all jake QC knows better than a Supreme Court judge in matters of defamation.

Tool.

Sequence of events:

1) Melbourne was in the middle of a gang war in which crime figures were being murdered execution style, often in public places such as restaurants.

2) Mr Trkulja was a prominent and well known member of the Australian Yugoslav community. He was having a meal with his elderly mother when a gunman walked in and shot him in the back before the gun jammed and fled the scene.

3) The police investigated the shooting and Mr Trkulja and found that he was not engaged in criminal activity, he had no connection to the gangland murders and they could not identify a motive for the shooting.

4) An enthusiast website called "Melbourne Crime" (now defunct) that followed the gang war and published the twists and turns, published an article about the gangland wars that contained photos of many of the notorious criminals involved and links to other articles. IMMEDIATELY BELOW this article there was another one from 2007 about Mr Trkulja going to the police with additional information about the shooting and asking that the investigation be re-opened. Yahoo 7 republished the articles.

5) Now, it is likely that the placement was completely accidental, but the positioning of such an article directly below one about notorious underworld shootings would lead the reader to wonder if Mr Trkulja and his shooting had some connection.

6) Google, being all not-evil I'm sure, trawled the page with its mindless bots and indexed the data as a single document. Now Mr Trkulja and his image was linked to Mokbel, Williams, et al, so that when you punched "melbourne crime" into Google, his image popped up amongst all the thugs and murderers like he was in some kind of perp line up. Nice.

7) Mr Trkulja started to notice that his community began to look at him differently and make comments about his criminal associations. It seems his innocence wasn't quite so obvious to the casual viewer, eh?

9) Now a formerly prominent and active member of the community was being frozen out of his social circle. I think it is quite natural that he was very upset.

9) He went to Yahoo7 and asked for the defaming article to be removed. They said "not our material" and "hop it!".

10) He went to Google and asked for the defaming images to be removed. They said "you didn't fill out the form properly, so no" and then "smell you later".

11) Having not had his grievances addressed by either company, he went to the only option left open and filed a defamation suit.

12) Yahoo didn't provide a defence against defamation. They argued that although they did publish the article, it wasn't their material and they weren't liable.

13) The jury and the judge disagreed, and found the article hosted by Yahoo A) implied that "the plaintiff was so involved with crime in Melbourne that his rivals had hired a hit man to murder him", and that B) implied that "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", but that it C) did not imply "the plaintiff is a criminal". Just that he was involved with crime, and that he was a prominent figure in the underworld. It seems the jury did SOME thinking about the implications and what parts were defamatory. The judge awarded Mr Trkulja $225,000+. The award was made higher because Yahoo made no attempt to remove the material.

14) The Google suit was slightly different, because it was just image of Mr Trkulja among Melbourne's criminal underworld. Once again, Google argued that it was not a publisher of the material and that all they do is automatically index the link.

14a) The judge dismissed the claim over the link because Mr Trkulja got it wrong in his application to have it removed.

14b) The jury found that Google did defame Mr Trkulja over the photo that grouped him with worst of Melbourne's criminal scum. Once Mr Trkulja informed Google of the defaming images, Google became liable for damages. All they had to do is break the context links associated with the image. They didn't even have to delete the image itself. By not taking the images down they defamed Mr Trkulja. Damages will announced in the next week or so.

Summary: Yahoo and Google were informed that they were hosting defaming material. They decided that because they didn't write the material, they didn't have liability and so didn't need to do anything. The law has now found that that is true up until the point that they are informed of it, then they are a responsible party to the content and they do have liability.

I hope that you can see the distinction: They aren't responsible for all information that passes through their servers, but they are once they become aware that the information infringes criminal or civil laws, they then are.

I know that this is a wall of text, but I hope you read all of it and appreciate better the circumstances of the case, and how impugning the sanity of Mr Trkulja and the integrity of the judge and jury isn't just unwarranted but also offensive. Often our first reaction isn't the correct one, and even the best articles leave out important details.

References:

http://defamationwatch.com.au/music-promoter-wins-225000-trkulja-v-yahoo-inc-llc-yahoo-7-pty-ltd-2012-vsc-88/

http://defamationwatch.com.au/one-small-step-for-mr-trkulja-one-giant-leap-for-googlekind-trkulja-v-google-inc-2012-vsc/

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Anonymous Coward

This could be the new whiplash scam

Simple game the Google search engine so that it appears to defame you (a la Rick Santorum).

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Silver badge
WTF?

Wife, President, Germany, Hooker

The wife of former German president Christian Wulff is taking legal action against Google.

Bettina Wulff shows if you search under my title in Google, as does Bing!

May be she should move to Australia to collect.

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Anonymous Coward

Unintended consequences

Surely, with all the media coverage this has just cemented this guy's connection to the criminal underworld when his name is searched for online?

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Silver badge

How does this work?

I don't understand how Google search results actually connect to each other. Perhaps there is some particular way to read these that I have not heard of, but at this point it is a mystery to me. This is a genuine question, so please don't just downvote this post. If you have the answer I will be glad to read it.

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Anonymous Coward

"not don enough"

What, Google isn't the Mafioso type?

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Headmaster

"not least because he was shot by a masked gunman"

who he? Trkulja or Mokbel?

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Re: "not least because he was shot by a masked gunman"

Trkulja was the man shot by a masked gunman. Why someone would do it remains unresolved. Mokbel sounds more like the kind of guy that would shoot people instead.

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Childcatcher

Just to clarify what happened...

1) Mr Trkulja was at a restaurant having dinner when a gunman opened fire, shooting Trkulja. This was during a time of underworld fighting, and there were some public executions of gangland figures.

2) Trkulja has no criminal record, nor any previous links to crime or underworld figures, and it seems he was shot accidentally. He was an innocent bystander.

3) An enthusiast website about the Melbourne gangland wars of the time wrote about the shooting, naming Mr Trkulja, and publishing a photo of him. Apparently the page didn't link him to criminal activity, but merely described events, but the page also included images and names of criminal figures and putting the shooting into context of the gang war narrative. This is how Trkulja and Mokbel were inextricably linked together by Google.

4) Google search results began showing images of Trkulja next to images of notorious crime figure Tony Mokbel, and his image also showed up when you did a seach with the term "Melbourne Crime". The casual implication being that Trkulja was associated with Mokbel and the Melbourne criminal underworld that was very much in the news at that time.

5) Trkulja contacted Google and asked them to do something about it, which they can easily do if they could be bothered to get off their arses and wipe the Cheetos residue from their fingers. After all, Google no longer links "miserable fool" to George W Bush's biography does it?

6) Google looked at the letter that explained the situation and how it affects Mr Trkulja, saw that the letter didn't include the URL of the "offending" material, and decided that there wasn't enough information to do anything. Probably because entering "Melbourne crime" into their own search engine and clicking on the top link was too difficult for them. NOTE: the lack of action from Google wasn't some ethical issue/principle, they did nothing because Trkulja didn't do their job for them and provide a URL to the page.

7) Mr Trkulja wasn't happy with this response from Google so he went the legal route and won.

It should be noted that Mr Trkulja DIDN'T win the money because of the initial defamation, but because Google did f**-all about it when informed there was an issue. If they had done something about it at the time, Google would have acted to the best of their ability, there wouldn't be an issue and Mr Trkulja would have got nothing.

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Anonymous Coward

So in other words, Trkulja *is* associated with Mokbel and the Melbourne criminal underworld,

Because he was shot by them. That's an association, in the sense of "connection or combination", as I understand it.

as·so·ci·a·tion

/əˌsoʊsiˈeɪʃən, -ʃi-/ Show Spelled[uh-soh-see-ey-shuhn, -shee-]

noun

1. an organization of people with a common purpose and having a formal structure.

2. the act of associating or state of being associated.

3. friendship; companionship: Their close association did not last long.

4. connection or combination.

5. the connection or relation of ideas, feelings, sensations, etc.; correlation of elements of perception, reasoning, or the like.

(from dictionary.com)

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Anonymous Coward

Re: Just to clarify what happened...

And why the hell should they do something about it???

The two ARE linked !!

One was a victim of the others world.

Nowhere did anybody or anything say the guy was a gangster.

Sheesh, people are just out to get whatever they can these days.

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Devil

Re: So in other words, Trkulja *is* associated with Mokbel and the Melbourne criminal underworld,

Hey ACs, I never said that I was agreeing with the judgement, nor with the original suit.

Don't hate me because I provided extra information that would be useful in parsing the article and correcting certain misapprehensions among commenters.

Once again, Trkulja didn't get money for the defamation (that was Yahoo's problem), he got it for Google not doing more (or anything) to stop his picture being the top result when somebody searches for "melbourne crime", a generic search and not specific ("trkulja shooting" or "trkulja crime"). The argument wasn't that Google linked the two, the argument is that when informed of the material they shrugged their shoulders and mumbled.

To be Devil's Advocate (Icon) for just a second (and not personally endorsing this argument, nor an advocate for Trkulja or his case), I'm not sure that his tenuous connection to Melbourne crime (being shot in the back while eating) would give enough weblinks for his image to be linked to the search term "melbourne crime" for much longer than a few weeks.

With an initial flurry of interest in him due to the notorious nature of the shooting and wider narrative of gang shootings at the time, there was little interest in him after that because he was a nobody shot by accident. That being the case, why was his image still being given a high ranking for some time afterwards? There would have to be something f**ked up with Google's algorithm if it keeps linking his image above that of other widely linked, widely referred and widely tagged gangsters like Carl Williams, Benji Veniamin or any one of half a dozen Morans.

I can't help thinking that there is more to the case than the limited reports are indicating. Google's algorithm should have buried his image further down the rankings after that initial flurry of interest around the shooting, and by 2009 (FIVE YEARS LATER!) and after all the other far more famous shootings, killings, trials and sentences, it SHOULDN'T have still been amongst the top results for "melbourne crime" any more.

So, I think that for whatever reason the algorithm f**ked up and made him unusually prominent following an article that he claimed defamed him (the Yahoo article, for which A JURY found in his favour and the JUDGE awarded $225,000 damages). When Google was informed of this defaming material THEY DID NOTHING.

Was the material defaming? Well the jury above (in a different trial with a different judge) found that it was. They found that the Yahoo article implied that "the plaintiff (Trkulja) was so involved with crime in Melbourne that his rivals had hired a hit man to murder him", and it also implied that "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 enthusiast site no longer exists.

Now our guts may say "This is f**ked up!", but a supreme court jury who heard all the evidence didn't (and don't we hate juries after the Apple-Samsung nonsense?), and the presiding SUPREME COURT JUSTICE didn't, and the Emeritus Professor at the Australian National University's College of Law didn't when he said that Google was only liable because it failed to respond to the complaint and that their defence of "innocent dissemination" failed because Google was aware of the defamatory material. But what would they know?

There come a point when we as know-nothing wankers have to concede that our guts are wrong. That there is a point where our instinctive sense of freedom of speech clashes with the civil structures we have put in place to prevent/redress unfair speech that damages fellow citizens. That there is a point where our collective enthusiasm for the capabilities of gadgets and technology to disseminate information comes up against the freedom of individuals to be free of unfair persecution.

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Boffin

A bit of legal precedent...

I've done a bit of idle Saturday morning research and found this: In 2011 a Milan court ruled that Google could be held responsible for defaming autocomplete suggestions.

Google argued that "it could not be held liable because it is a hosting provider" rather than originator, and that the search terms were automatically generated from the content of others.

However the court agreed with the plaintiffs that the autocomplete was content that was generated BY Google in an automated manner, and that they did have a defamation liability.

Once again, Google WASN'T liable until they were informed that they were hosting defaming material. Once they were informed, and choose to do nothing, they then became liable.

A lawyer in the case pointed out that Google can filter some content if they choose, such as copyright infringing material. http://news.cnet.com/8301-1001_3-20050852-92.html

The logic of the Italian decision is that the activity of Google isn't the hosting of other people's content, but that the provision of suggestions is a deliberate (although automated) service delivered by a conscious commercial decision by Google, and one that isn't objective and is open to monitoring and manipulation by Google. See also: http://www.techdirt.com/articles/20120911/06365520342/googles-autocomplete-dilemma-every-concession-makes-it-easier-next-person-to-complain.shtml

Similarly, Google was ordered by a Japanese court to remove incorrect autosuggestions that a man was associated with certain crimes. Here: http://www.bbc.co.uk/news/technology-17510651

I cannot see that there is much different between the the autosuggest services offered by Google and the image search services. Both are generated by the input of outside content, run through Google's algorithms, subjected to Google's prejudices and biases and the results spat out to the user.

Once again, before I am condemned for my anti-technology heresies, I am not in favour of these kinds of censorship, I am merely providing context and information. These issues don't just apply to Google, but Microsoft, Twitter, Facebook, even Amazon and eBay with their comments/feedback.

I don't like the thought of a search provider being a filter deciding what I should know and hiding what it thinks I should not. But Google already does this, blocking some results and demoting others to "below the fold" or over the page.

But on the other hand, I also don't like the thought of Google being above any accountability for the content they produce, and being beyond legal recourse. If we are going to be black and white over search results, why can't I search out for copyrighted materials to download, or if I was a sick f**k for kiddy porn? We already make compromises based on laws, are we to choose which laws providers are to follow and which they can safely ignore?

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