‘Hey, Google?’ A timely reminder from the Federal Court to ask questions about how to best uncover details of online reviews.

Many international social media companies hold key information about the authors of anonymous, online reviews to assist prospective litigants to consider whether substantive proceedings can and should be pursued in Australia.

A recent decision of the Federal Court of Australia[1] (Court) highlights the importance of:

1. simply asking ‘hey, Google?’ or otherwise exhausting all reasonable avenues to identify the details of anonymous, online reviews when considering whether to issue substantive proceedings against that anonymous reviewer (for example, defamation proceedings); and
2. choosing the appropriate forum in which to commence legal proceedings against entities located overseas.?Commencing proceedings overseas may be the simplest solution.

Background

Rachel Kandola and Tejinder Singh Kandola (Applicants) owned and operated an air conditioning business in New South Wales.

The business had been the subject of three negative online reviews, which were published on Google LLC (Google) and the Yellow Pages’ respective websites.?The Applicants claimed that the online reviews were defamatory.

Despite taking reasonable steps to ascertain the identity of the authors of the reviews, the Applicants were only able to identify the authors as ‘Frank S’ and ‘John S’.

To uncover further necessary details about the authors, the Applicants filed an application seeking preliminary discovery in accordance with rule 7.22 of the Federal Court Rules 2011 (Cth) (Rules) from Google and Sensis Pty Ltd (SPL), the operator of the Yellow Pages website, about the description or identity of the anonymous authors.?Google and SPL were both based in the United States of America.

Before the Applicants commenced the proceeding, Google sent an email to the Applicants, in response to a previous email from Ms Kandola, stating that if the Applicants wanted to obtain any information on how documents could be served on Google to identify details about the anonymous authors, then the Applicants needed to send an email to a particular Google email account (Google Email).?Notably, the Applicants did not do so.

After the Applicants commenced proceedings, the Applicants sought leave from the Court pursuant to rules 10.42 and 10.43 of the Rules to serve the application on Google and SPL in the United States in accordance with the Hague Convention.[2]?Separately, the Applicants sought an order for substituted service to serve the application on Google by email.

Relevant rules

Rules 10.42 and 10.43 of the Rules prescribe five criteria that must be satisfied for leave to be granted to serve certain court documents in a foreign country: [3]

1. the application must comprise one or more of the types of proceedings mentioned in the table in rule 10.42;[4]
2. the method of service chosen by the applicant to serve the documents overseas must be in accordance with a convention,[5] the Hague Convention or the law of the foreign country in which the documents are to be served;
3. the application for leave must be supported by an affidavit identifying:

• the country in which the person is to be served;
• the proposed method of service; and
• that the chosen method of service is permitted by a convention, the Hague Convention or the law of the foreign country;

1. the Court must have jurisdiction in the proceeding; and
2. the applicant must have a prima facie case for all or some of the relief claimed in the proceeding.

The Court’s decision

The Court’s reasons can be accessed using this link. ?We have summarised the decision below.

Leave to serve in a foreign country

The Court found that the Applicants had satisfied each of the five criteria, observing that:

1. whilst a preliminary discovery application is not expressly referred to in the table in rule 10.42 of the Rules, the application in the case ‘can fairly be characterised as an action based on the tort of defamation committed in Australia … because the claim to be entitled to preliminary discovery is based, at least in part, on the fact that the prospective applicants may have a right to obtain relief, including damages, from someone else (the prospective respondent) for defamation’;[6]
2. the application could be served in accordance with the Hague Convention or a law of the United States;[7]
3. the necessary supporting affidavits had been submitted;[8]
4. the Court had jurisdiction in the proceeding;[9] and
5. the Applicants had a prima facie case for preliminary discovery, the Applicants having demonstrated that:

• there was an arguable case that the anonymous authors of the reviews had defamed the Applicants;[10] and
• Google and SPL were likely to have information, including the ‘ability to control or interrogate its [webpages] …’, about the identity of the anonymous authors, which information the Applicants had been unable to ascertain despite taking reasonable steps.[11]

Accordingly, the Court granted the Applicants leave to serve the application on Google and SPL in the United States, in accordance with the Hague Convention, by international registered post.

Substituted service

In support of their application for substituted service, the Applicants contended that:

1. the effects of the COVID-19 pandemic, particularly on global postage services, rendered it more efficient for service to be effected by email; and
2. the defamation limitation period for the anonymous online reviews would likely expire in December 2021.

Despite those submissions, the Court refused to grant an order for substituted service, in particular because of ‘… the lack of any attempt by the prospective applicants to seek information from Google at the email address specified in Google’s December 2020 correspondence [ie the Google Email]’.

Go to the mountain

Some US based social media companies prefer not to litigate in Australia.?As Mohammed said, if the mountain will not come to you, then you must go to the mountain.?

There are a number of states in the US where obtaining pre-action discovery is relatively cheap and effective.?California, for example, will allow overseas litigants to obtain documents to determine whether they have a cause of action.?It can be faster and cheaper to use this approach as it does not involve the delays associated with service under the Hague Convention, which adds months to the process.?It also means that communication with the media company is done in their time zone, within their native legal system, all of which can streamline the process.

Take aways

In the absence of any legislative changes, the Federal Court’s decision draws into sharp focus the question prospective litigants seeking to identify further details of anonymous online authors should ask themselves: ‘whether proceedings should be issued in Australia, as the Applicants did, or whether proceedings should be commenced in the United States to uncover further details of the authors?’

There are pros and cons to each approach.?For example, while issuing a proceeding in the foreign country to identify further details of anonymous online authors is a more direct and sometimes more efficient approach, removing the need to rely on global postage services to serve the relevant court documents, the litigant, after obtaining the further details from overseas (assuming such details are obtained), would still need to issue a separate, substantive proceeding in Australia (eg defamation proceedings).?However, issuing proceedings in Australia, as the Applicants did in this case, eliminates the need for multiple proceedings involving multiple lawyers across multiple jurisdictions.?Ultimately, the facts of each case will assist a prospective litigant to determine which approach is most appropriate.

It is also important to remember to ask the simple questions: ‘Hey, Google?’?Had the Applicants sent an email to the Google Email as the Court observed, the Court may have been willing to grant the order for substituted service sought by the Applicants, as was the case in Musicki v Google LLC [2021] FCA 1393, where Mortimer J allowed service by international registered post and by email to Google’s ‘dedicated civil proceedings email’.?Moreover, without exhausting all such steps, arguments about the efficiency of methods of substituted service (eg email in this case) appear to be insufficient on their own to persuade the courts that substituted service should be ordered, even in the face of major, global disruptions and delays affecting normal methods of service and impending limitation dates.

If you find yourself considering whether it would be appropriate to identify further details of online, anonymous authors of online reviews, please get in contact with us.

[1] Kandola v Google LLC [2021] FCA 1262 (Judgment).

[2] ie the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965.

[3] The criteria have been quoted from [6] of the Judgment, which were extracted from the decision of Lin v Google LLC [2021] FCA 1113 (Lin) at [11]-[12] (Wigney J).

[4] For example, a proceeding based on a cause of action arising in Australia (Item 1), a proceeding based on a breach of contract in Australia (Item 2), a proceeding based on a tort committed in Australia (Item 4) and so on.?For more, please see the table in rule 10.42 of the Rules.

[5] Being a convention (other than the Hague Convention), agreement, arrangement or treaty about service abroad of judicial documents to which the Crown in the right of the Commonwealth or, if appropriate, in right of a State, and a foreign country are parties: please see rule 10.41 (definition of ‘convention’).

[6] Please see [8] of the Judgment, quoting Lin at [14]-[15] (Wigney J).

[7] Please see [9] of the Judgment.

[8] Please see [10] of the Judgment.

[9] Please see [11] of the Judgment.

[10] Please see [12]-[13] of the Judgment.

[11] Please see [14] of the Judgment.