In recent weeks the Federal Court of Australia has made interlocutory orders in two different sets of proceedings relating to applications for preliminary discovery brought against Google. The applicants are seeking that Google divulge the identities of anonymous online users who the applicants allege have made defamatory statements against them. While the Federal Court has not substantively determined the application for preliminary discovery in either case, these decisions highlight a growing trend of preliminary discovery applications to identify anonymous online users for the purpose of defamation proceedings.

Live by the keyboard, die by the keyboard – defamation in the digital age

In order to succeed in an action for defamation, an applicant must establish that their reputation has been damaged as a result of a false statement to at least one third party.

The application of defamation law in the digital age is an emerging frontier in Australian jurisprudence. The publication of defamatory content on the internet is becoming an increasingly litigated area in the modern age, especially on social media platforms and with respect to online reviews.

A major development in the law came in 2019 by virtue of the decision of Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766 (Voller).

In Voller, Rothman J of the Supreme Court of New South Wales determined, as a preliminary question in the proceedings, that the defendants (three different media organisations) were the publishers of third-party comments posted under links to articles on their Facebook pages for the purposes of the law of defamation. It should be stressed that the Court was not tasked with deciding whether the other elements of defamation had been satisfied and made no findings in that regard. However, the decision has paved the way for a successful defamation claim against the operator of a Facebook page for comments made by third parties on their page in the future.

Following Voller, in the case of Bailey v Bottrill (No 2) [2019] ACTSC 167, the Supreme Court of the Australian Capital Territory found that an individual had actively participated in the publication of defamatory material by sharing a link to a defamatory YouTube video on her personal Facebook page.

Whodunnit? Preliminary discovery to identify a prospective respondent

Preliminary discovery is a process that can be utilised by a prospective applicant before commencing proceedings to ascertain the identity of potential respondents.

While each jurisdiction in Australia has its own specific requirements for an order for preliminary discovery, the general principles are the same.

The relevant rule applicable to the Federal Court of Australia is rule 7.22 of the Federal Court Rules 2011 (Cth), which provides that the Court may make an order for preliminary discovery to identify prospective respondent if it is satisfied that:

  1. There may be a right for the prospective applicant to obtain relief against the prospective respondent (for example, the right to damages for defamation);
  2. The prospective applicant has been unable to identify the prospective respondent despite having made reasonable enquiries; and
  3. A third party (being the respondent to the application for preliminary discovery) knows or is likely to know the identity of the prospective respondent, or has or is likely to have control of a document that would help identify the prospective respondent.

If those matters are satisfied, the Federal Court has the power to order the third party to do any of the following:

  1. Attend Court to give evidence as to the identity of the prospective respondent;
  2. Produce any document or thing to Court in the third party's control that relates to the description of the prospective respondent;
  3. Give documents to the prospective applicant in the control of the third party that relate to the description of the prospective respondent.

#trending – preliminary discovery applications against Google

In the recent decision of Kabbabe v Google LLC [2020] FCA 126, Murphy J of the Federal Court of Australia considered an application to serve an originating application seeking preliminary discovery of the identity of a prospective respondent on Google, which is based in the United States.

Mr Kabbabe is a dentist in Victoria who has been aggrieved by an unfavourable review of his dental practice that was posted on Google by an anonymous user. Mr Kabbabe has filed an application for orders for preliminary discovery from Google with respect to the identity of the user who posted the review.

In this decision, Murphy J made orders allowing Mr Kabbabe to extrajudicially serve the originating process on Google by post.

Although Murphy J did not make orders requiring Google to identify the user (whether by documents or oral testimony), his Honour was satisfied that Mr Kabbabe has a prima facie case for preliminary discovery with respect to the user's identity pursuant to rule 7.22 of the Federal Court Rules 2011 (Cth). This is because:

  1. Mr Kabbabe may have a right for damages against the user for defamation;
  2. Mr Kabbabe has made reasonable enquiries to ascertain the identity of the user, including by requesting the information from Google; and
  3. Google is likely to have control of documents that would help identify the user.

In another recent decision, Prasad v Google LLC [2020] FCA 67, Wheelahan J of the Federal Court of Australia considered an application to transfer an interlocutory application for preliminary discovery brought pursuant to rule 7.22 of the Federal Court Rules 2011 (Cth) to the Supreme Court of Victoria. The application was not opposed by Google.

The applicants in this case received emails from a Gmail address that contained materials that they allege amount to both defamation and misleading and deceptive conduct for the purposes of the Australian Consumer Law. In similar factual circumstances to the Mr Kabbabe's case, the applicants in this case are seeking orders for preliminary discovery from Google with respect to the identity of the operator of the Gmail address.

Ultimately, Wheelahan J ordered that the proceedings be transferred to the Supreme Court of Victoria, which has the power to make orders for preliminary discovery under its own rules.

Again, the Federal Court neither heard nor determined the application for preliminary discovery orders. However, Wheelahan J did opine that the requirements of rule 7.22 of the Federal Court Rules 2011 (Cth) were prima facie satisfied.

Watch this (cyber)space

While the Federal Court has not made orders for preliminary discovery against Google in either of these decisions, they are a sign of things to come; it is likely that Australian courts will become more inclined to order internet providers and social media platforms to identify prospective respondents to proceedings.

There is the potential for this trend to open the floodgates for proceedings being brought against (otherwise anonymous) online users for defamatory posts that they have published on the internet (including in online reviews).