PUBLIC CITIZEN LITIGATION GROUP
1600 20TH STREET, N.W.
WASHINGTON, DC 20009-1001

(202) 588-1000

By email to sgibson@millsoakley.com.au
February 16, 2016

Stuart Gibson, Esquire
Mills Oakley Lawyers
Level 6, 530 Collins Street
Melbourne, Victoria 3000
AUSTRALIA

Dear Mr. Gibson:

I write on behalf of Michael Masnick and Floor 64, Inc., in response to your letter and emails
dated February 1, 2016, February 12, 2016, and February 13, 2016. Your letter complains about
alleged defamation of your client Milorad Trkulj a and threatens to sue for defamation in Australia and
then to enforce a judgment in California. Your subsequent emails invite Masnick and Floor 64 to
?accept Service of Proceedings and test their nonsensical dribble in Australian Courts,? suggest that
they secure ?proper legal advice instead of publishing utter dribble,? and rhetorically ask whether they
?have the guts to accept Service.? In the unlikely event that you initiate the litigation that you threaten
here in the United States, we will represent Masnick and Floor 64. In the remainder of this letter, I?ll
refer to them jointly as ?Masnick.?

Turning ?rst to the question posed in your most recent email, nothing is preventing you from
transmitting physical documents to Masnick if that is a course of action that you deem advisable; you
have a mailing address. Whether that would constitute effective ?Service of Proceedings? under
Australian law is not for me to say, but Masnick has never done anything to subject himself to the
jurisdiction of courts in Australia and we are con?dent that any legal action you might undertake in
those courts would not be consistent with constitutional due process as would be required to enable
you to assert that any judgment in those courts is enforceable in the United States, wholly without
reference to the SPEECH Act. Nor does Masnick have any intention of accepting your invitation to
litigate this matter in Australia. Consequently, if you believe that your client has sound defamation
claims, he will have to litigate them in the California courts, which would have personal jurisdiction.

Moreover, your letter errs in asserting that Masnick is ?not protected by the Speech Act.?
Under the SPEECH Act, 28 U.S.C. 4101 et seq. a judgment for defamation cannot be enforced in
any court in the United States unless (I) the law applied in the court?s adjudication was consistent
with the protections for free speech provided by the First Amendment to the United States
Constitution and the law of the state where a plaintiff seeks to enforce the foreign judgment or, at
least, the First Amendment would allow liability on the facts of the case, 28 U.S.C. 4102(a)(1); (2)
the rendition of the judgment is consistent with the due process principles of the United States
Constitution, 28 U.S.C. 4102(a)(2); and (3) the judgment is consistent with protections that the

on Recycled Paper

Stuart Gibson, Esquire
February 15, 2016
page 2

Communications Decency Act, 47 U.S.C. 230, affords to providers of interactive computer services.

I have no basis for making a judgment whether Australian law gives you a fair chance of
securing a judgment of liability. But I see no reason to believe that your client could prevail on any
of the three SPEECH Act prongs mentioned above, and Trkulja would have to meet all of them to
secure enforcement of an Australian judgment and hence avoid the mandatory award of attorney fees
for which the SPEECH Act provides, 28 U.S.C. 4105. I might add that California has an anti-
SLAPP statute, which would likely apply to any action you might bring to enforce an Australian
judgment, and would provide an alternative basis for an award of attorney fees against Trkulj a.

There are several reasons why the SPEECH Act would bar enforcement. First, neither
Masnick, nor indeed Timothy Geigner, the author of the article on Techdirt about which your client
is exercised, called your client a gangster. If anything, Geigner?s 2012 article, 
com/articles/20121113/5 
expressed sympathy with your client?s
concern about the assumption that he is a gangster arising from the fact that he suffered a gunshot
wound from having been, apparently innocently, in the wrong place at the wrong time. And this
discussion occurred in the course of making legitimate comments about litigation in which your client
prevailed, which the author suggests is based on a very wrong-headed public policy. Your letter?s
only complaint is not about the language of the blog piece itself, but rather about an of?iand comment
that some anonymous person placed on the blo g, identifying Trkulja as a ?gangster.?

Indeed, your letter
admits that you have in mind to sue Masnick as a ?moderator? for having failed to comply with what
you say is a duty under Australian law for anyone who runs a discussion forum to act as a
?moderator? and thus to pick and choose among comments. But this comment does not re?ect
Masnick?s having intentionally directed tortious conduct at your client in Australia and is not a basis
for subjecting him to personal jurisdiction in Australia.

Second, the comment was published more than three years ago, and hence is outside the one-
year statute of limitations that the California courts apply to libel claims. California applies the single
publication rule to Internet statements, so the fact that the comment remains on the blog today does
not get your client out from under the timeliness bar.

Third, the single word ?gangster? is likely to be treated by California libel law, and by the First
Amendment, as jocular or as rhetorical opinion, rather than as a statement of fact. Libel suits can only
be based on false statements of fact, not expressions of opinion. In that regard, although at the outset
of your letter you suggest that the defamation of which you complain is the 2012 comment to which
Trkulj'a?s pro se demand letter was aimed, some of the five numbered points on the first page of your
letter might be taken as suggesting that, simply by discussing Trkulj a?s pro se demand letter on his
blog and rebutting it, point by point, Masnick? 3 December 1, 2015 post further defamed him. But you

Stuart Gibson, Esquire
February 15, 2016
page 3

do not identify a single factual inaccuracy in the latter article, and Masnick?s opinions about the
soundness of Trkulja?s contentions are not actionable under either United States or California law.
The fact that someone might think the less of your client if they are persuaded by Masnick? reasoning
does not make his opinions defamatory. I would be disappointed to learn that such pure opinions are
actionable in Australia, but given that Masnick is not amenable to jurisdiction there, I need not
investigate that question.

Fourth, because Trkulja is a limited purpose public ?gure by virtue of having been a plaintiff
in the Australian litigation, he would have to prove by clear and convincing evidence that, at the time
of publication, Masnick either knew that use of the word ?gangster? was false, or published that word
with reckless disregard of the probability that the statement was false that is, that the publication
was with actual malice. There would be no basis for such a contention. An unswom and unsupported
statement in a lawyer?s letter, asserting his client?s innocence, is not enough to put a blogger in the
position of leaving the comment posted with actual malice, and in any event, in American law the
blogger?s state of mind at the time he received the lawyer?s letter is irrelevant.

For all of these reasons, I see no reason to believe that you can surmount the hurdle that 28
U.S.C. 4102(a)(1) would pose to your possible enforcement of an Australian defamation judgment
here in the United States, even assuming that you could secure one. Given the lack of basis for
personal jurisdiction, I see no reason to believe that you could surmount 28 U.S.C. 4102(a)(2).
Finally, because the comment was published on a forum on which any member of the public may
express his or her opinion, Masnick quali?es as a provider of an interactive computer service; indeed,
given the admission in your letter that your theory of liability turns on what you claim to be a duty
to moderate under Australian law, your enforcement action would fail under 28 U.S.C. 4102(a)(3).

I note that your letter contains a number of citation-free bullet points about the non? application
of the SPEECH Act, about the enforceability of the judgment that you hope to obtain in the courts of
the United States, about the ?numerous judgments? that your ?rm has supposedly enforced in
?[Masnick] ?s jurisdiction,? and the like. If you have citations and speci?es to back up your assertions,
I am ready to consider them.

Finally, your emails to Masnick (and, apparently, one to California lawyer Kenneth White,

wyer/,) consistently refer to analyses with which you disagree as ?dribble.? Actually, I believe that

what you are trying to say is ?drivel.? ?If 

?x

a Sincerely yours,