A new case, where the Federal Court of Australia ordered Google to reveal the identity of an anonymous user who posted an allegedly defamatory review, will have implications for how people post reviews online.

Key takeouts

Individuals seeking to leave defamatory reviews under a cloak of anonymity cannot be assured that their identity will not be revealed by the host platform.

Individuals seeking to bring defamation proceedings against anonymous online users can use the preliminary discovery process against account hosts, such as search engines like Google or Yahoo, to compel them by court order to identify who is behind the allegedly defamatory comments.

While this decision may reduce the vitriol spewed online by anonymous users, it may also frighten search engines and other companies into deleting negative reviews and comments before they are compelled to disclose confidential identifying information – a consequence that may stifle essential criticism.

In a significant ruling, the court has made it far more difficult for online users posting disparaging reviews to hide under a cloak of anonymity. If the user's review is alleged to be defamatory, and the owner of the business they are reviewing is unable to identify them, Google and other platforms may be required to step in and help reveal the users' identities. This may pressure review platforms to remove negative reviews to avoid contested legal proceedings.

Potentially defamatory comments posted anonymously

A few months ago an anonymous user, acting under the pseudonym 'CBsm 23', posted a negative review on Google concerning a procedure undergone at dental surgeon Dr Kabbabe's clinic.

Shortly after, in November 2019, Dr Kabbabe contacted Google and requested it to take down the review. Google rarely takes down reviews unless ordered to do so by a court, and in this case it refused the request.

Following Google's refusal, in December 2019 Dr Kabbabe applied to the court to require Google to provide all documents or things in its possession or control relating to the description of user CBsm 23, in order to bring a defamation action against him. This case concerns whether a person in Australia can compel Google to provide all documents in its possession which might help identify an anonymous user.

Legal requirements - can the court compel Google to identify an anonymous user?

In order for leave to be granted, Dr Kabbabe, must have a 'prima facie case' against Google. This rule requires that:

  1. There may be a right for Dr Kabbabe to obtain relief against the anonymous user;
  2. Dr Kabbabe, having made reasonable inquiries, is unable to ascertain the description of the anonymous user; and
  3. Google, as the respondent to the application, knows or is likely to know that description, or has or is likely to have control of a document that would help ascertain that description.

The decision – Google ordered to disclose documents

His Honour found that all three requirements were satisfied.

First, given the disparaging review, which was available online to be read by members of the public in areas where Dr Kabbabe practises, there was at least a possibility that the review contained imputations which could have lowered his reputation as a dental surgeon.

Secondly, Dr Kabbabe had made reasonable inquiries by contacting Google, requesting it to take down the review and subsequently requesting it to provide all identifying information about user CBsm 23. Google refused, and there were no more reasonable inquiries Dr Kabbabe could have undertaken to ascertain the description of user CBsm 23.

Finally, Google would have access to the subscriber information for user CBsm 23's account; the name of the users of that account; the IP address(es) associated with the account; any phone numbers associated with the account; and additional information related to the account. His Honour found that this information would help identify the user, and accordingly, Google should be required to provide the identifying information.

Implications for individuals, business owners, website platforms

Dissatisfied consumers, frustrated about the quality of a product or service, frequently flock to Google and other reviewing platforms to express their displeasure. Occasionally, when their review verges on personal attack, or constitutes an emotional argument, rather than fact, the consumers may be threatened with defamation. In these circumstances, an anonymous online identity will no longer offer protection, as the court may order a host platform to reveal their identity.

These court orders may protect business owners who are badly affected by negative reviews. The threat of defamation may reduce the likelihood that individuals will leave bad reviews in the first place, and the potential that a court will order the review platform to reveal the user's identity may encourage that platform to remove the negative reviews before they become a problem.

Yet ultimately, if online platforms - unwilling to engage in legal action – choose to remove bad reviews at an increasing rate, products and services may be falsely inflated, suppressing information that may protect consumers.

Implications of the case

Individuals seeking to leave reviews under a cloak of anonymity cannot be assured that their identity will not be revealed by the account host.

Account hosts, whether a large search engine like Google or Yahoo, a media company with comment sections, or a business-reviewing platform, may be compelled by court order to provide any information which helps disclose the identity of anonymous users.

While this decision may reduce the vitriol spewed online by anonymous users, it may also frighten search engines and other companies into deleting negative reviews and comments before they are compelled to disclose confidential identifying information – a consequence that may stifle essential criticism.