How do you commence defamation proceedings against someone who has attempted to conceal their identity by using a fake profile? The straightforward answer that jumps to mind: you ask Google. However, you will be asked for details including a URL – but if the offending review or post has been taken down in the interim, that information can prove difficult to provide if no screenshot was taken. What then? While life becomes a little more complicated, the hurdles are not insurmountable.
Claims that are amenable to Federal Court jurisdiction can take advantage of the rules that contemplate pre-pleading discovery where insufficient information is available to allow the commencement of a proceeding. The court will expect reasonable inquiries to be undertaken prior to any application.
Where personal information about a user needs to be obtained from a company based overseas (such as Google), leave first needs to be granted by a court in order for the application to be served across international borders.
In the recent case of Lin v Google LLC  FCA 113, Justice Wigney stepped through the tests that are applied in deciding whether leave should be granted. This case follows earlier decisions such as Gearhart United Pty Ltd v Omni Oil Technologies (Asia) SDN BHD  FCA 401; 267 ALR 630, which confirm that applications can be made against persons or corporations domiciled in the USA.
What led to the application for preliminary discovery in Lin v Google LLC?
The applicant, Mr Xu Hong (Andrew) Lin, is the manager and ex-owner of Strathfield Autobody, a panel beater in Sydney. His business has a Google “My Business” webpage, which appears on Google Maps. It can be viewed by anyone (whether in Australia, or elsewhere), who has access to Google. Any person or "user" with a Google account can also write a review of the business on its Google business page. The profile name of a Google account is created by the user and the user’s identity is not necessarily verified by Google.
In October 2020, a Google user with the profile name "Lucas" posted the following negative Google review:
"Very poor work. The owner Andrew is a con man. Promised everything and then reused damaged parts that couldn't be seen easily. Refused to fix the problems. Very unprofessional and unsafe. Stay well away from this con man."
Mr Lin alleged that the review was false and had resulted in a loss of earnings for the business. Mr Lin's evidence was that not long after the review was posted, a customer cancelled a booking. When he asked the customer why he was cancelling his booking, the customer said that he had seen “some reviews”. Mr Lin also alleged that some Chinese customers saw the review and “spread the word” amongst the Chinese community.
Mr Lin suspected the author of the post was actually a person he was involved with in legal proceedings at the time, whose first name happened to be "Luke". Mr Lin claimed that shortly after his solicitors sent Luke a Concerns Notice, the negative review was removed.
Mr Lin subsequently attempted to obtain data from Google to substantiate his suspicions regarding the identity of the author. Google indicated that it required further details about the review, including a URL, before it could provide any data. Mr Lin’s solicitors indicated in their reply to Google that they were unable to provide all the requested details because the offending review had since been removed from Strathfield Autobody’s Google business page. Having not heard anything further from Google, Mr Lin then commenced proceedings in the Federal Court with the goal of obtaining an order for preliminary discovery that Google be required to provide the information.
What is preliminary discovery and when will it be granted?
The purpose of preliminary discovery is to identify essential information in the possession of a third party needed prior to commencing a claim. This may include, for example, the identity of a prospective defendant, their whereabouts, and certain information key to determining whether a cause of action exists.
In Mr Lin's case, he relied on rule 7.22 of the Federal Court Rules, which required him to show that:
- there "may" be a right for him to obtain relief against the "prospective respondent" (ie., the person who caused the negative review to be published);
- Mr Lin is unable to ascertain the "description" of the prospective respondent; and
- "another person" (in this case, Google) either knows or is likely to know the prospective respondent's description, or has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the prospective respondent's description.
What are the steps to seeking overseas service of an application for preliminary discovery?
An application may only be served on a party outside Australia in certain circumstances.
Rules 10.42 and 10.43 of the Federal Court Rules require the following criteria to be satisfied:
- first, the application is one of the kinds of proceedings listed in the table in rule 10.42 (this relevantly includes a proceeding based on a cause of action arising in Australia, a proceeding based on a tort committed in Australia, and a proceeding based on or seeking the recovery of damage suffered wholly or partly in Australia caused by a tortious act or omission (wherever occurring));
- secondly, the application must be served in accordance with a convention, the Hague Convention, or the law of the foreign country in which the application is to be served;
- thirdly, the application must be accompanied by an affidavit stating the name of the foreign country where the party is to be served and the proposed method of service is in accordance with a convention, the Hague Convention or the law of the foreign country;
- fourthly, the Court must have jurisdiction in the proceeding; and
- fifthly, the party applying must show they have a prima facie case for the relief claimed in the proceeding.
The main controversy that Mr Lin had to address was whether the application satisfied the first criterion, with Justice Wigney identifying that an application for preliminary discovery does not itself "precisely align" with any of the specified types of proceedings under the Rules. His Honour considered that the actual issue was whether the fact that the possible right to obtain relief which underlies the application for preliminary discovery is a right to obtain damages for defamation is sufficient to engage one of the other types of proceedings in the table.
In taking a broad approach to this criteria, His Honour found that Mr Lin's application for preliminary discovery could "fairly" be characterised as an action "based" on the tort of defamation committed in Australia, notwithstanding that the application was not itself an proceeding for that cause of action. This is because the application for preliminary discovery is based, "at least in part", on the fact that Mr Lin may have a right to obtain damages from someone else (the prospective respondent) for defamation.
Alternatively, Justice Wigney was prepared to accept that the application could be considered a "cause of action", as Mr Lin's right to obtain that relief from Google is a right to obtain relief from an Australian court pursuant to the rules of that court.
Key takeaways for preliminary applications against overseas companies
The requirement of an applicant for preliminary discovery to prove that there may be a right to obtain relief is not an onerous burden – involving only a low threshold, as long as it is based on a cause of action known to law where there is at least a real, not fanciful, prospect of success:
Where an applicant can show an arguable case that a review or post, while published on a Google business page is defamatory of them personally, they will cross the threshold of establishing a prima facie case.
Assuming then that the Federal Court is satisfied it may have jurisdiction, its rules provide a mechanism to seek and serve preliminary discovery applications on third parties overseas, in a quest to unveil the identity of publishers who have sought to remain anonymous. As the court noted here, Google is likely to have the ability to control or interrogate its Google pages, including the Strathfield Autobody page and the historical data associated with it, in a manner that could assist Mr Lin to identify the person with the username Lucas who posted the negative review.
One issue to remain cognisant of is the limitation period for commencing proceedings within 1 year of the defamatory publication. Given that the Hague Convention does not permit service by email and service by international registered post can take some time, these applications are not ones to be left to the last minute. As Mr Lin discovered, prospective litigants cannot be assured of obtaining a substituted service order as an alternative. Here, Mr Lin had sought that also and failed, with Justice Wigney noting:
"while Mr Lin is still within the confines of the one-year limitation period for actions on a cause of action for defamation (see s 14B of the Limitation Act 1969 (NSW)), the limitation period will expire early next month unless Mr Lin is granted an extension. Mr Lin did not submit that the impending expiration of the limitation period for his underlying prospective defamation claim provided a basis for the proposed order for substituted service. Even if he had, it would not have provided a persuasive reason for making such an order. That is because the possible expiration of the limitation period would appear to be a problem of Mr Lin’s own making. There is no explanation for why Mr Lin has not sought preliminary discovery against Google until this fairly late stage".