Privacy – defamation
Kabbabe v Google LLC  FCA 126
In Kabbabe v Google LLC  FCA 126, Justice Murphy of the Federal Court of Australia considered an application brought by Dr Kabbabe (the applicant) seeking preliminary discovery from Google LLC (the respondent), who are based in the United States, in relation to the description of a prospective respondent to an action for defamation.
The Court granted Dr Kabbabe leave to serve the originating application on Google LLC in the United States in accordance with Article 10(a) of the ‘Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters’ (the Convention).
Dr Kabbabe is a dental surgeon based in Victoria, Australia, who relies on the internet and public reviews of the services he provides to attract customers. He received a negative Google review relating to his practice from a user using a pseudonym, CBsm23 (the anonymous reviewer), which stated that Dr Kabbabe made their experience “extremely awkward and uncomfortable”, that the procedure was not “done properly”, and that it seemed like Dr Kabbabe “had never done this before”. The anonymous reviewer advised prospective customers of Dr Kabbabe to “STAY AWAY”.
Dr Kabbabe alleges that the contents of the review are defamatory, and thus made an application to the Court seeking an order requiring Google to provide preliminary discovery of all documents or things in its possession or control relating to the anonymous reviewer in order to identify them so that he could bring a defamation proceeding against the anonymous reviewer.
- Could Google be served in accordance with ‘Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters’ (the Convention)?
Finding of Justice Murphy
Rule 10.43 of the Federal Court Rules 2011 (Cth) (the Rules) sets out the four criteria of which the Court must be satisfied before leave is granted to serve outside of Australia.
Firstly, the application must be accompanied by an affidavit stating the name of the foreign country in which the applicant wishes to serve, the proposed method of service, and that the method of service is permitted by the Convention (if applicable). Dr. Kabbabe relied on the affidavit of his solicitor, which contained the requisite information under rule 10.43 of the Rules and proposed service by post pursuant to Article 10(a) of the Convention. On this point, Justice Murphy noted at paragraph 6 that the “main channel of transmission” for overseas service is through the Central Authority of the receiving State in accordance with Article 5 of the Convention. Service through alternative channels, including via post, is permitted provided the receiving State does not object to that method of service. In his consideration of whether service under Article 10(a) of the Convention would be appropriate, Justice Murphy noted that the Federal Court of Australia has granted leave to serve documents in this manner on a number of occasions, and that in Water Splash Inc v Menon 581 US (2017), the US Supreme Court held that the Convention does not prohibit service of process in the USA by direct post to the respondent. The Court concluded, on this basis, that the US as the receiving State would have no objection to service by post under Article 10(a) of the Convention.
Secondly, rule 10.43 of the Rules provides that the Court must have jurisdiction in the proceeding. This was not a point of contention, with Justice Murphy concluding that the Court clearly had jurisdiction in these proceedings.
Thirdly, the proceeding must be of a kind mentioned in rule 10.42 of the Rules. Dr Kabbabe’s application relied on item 1 of rule 10.42, a proceeding based on a cause of action arising in Australia, item 4 of rule 10.42, a proceeding based on a tort committed in Australia, and item 5 of rule 10.42, a proceeding based on, or seeking recovery of, damages suffered wholly or partly in Australia caused by a tortious act or omission wherever occurring.
Finally, rule 10.43 of the Rules states that the Court must be satisfied that the applicant has a prima facie case for the relief claimed in the proceeding. Justice Murphy referred to rule 7.22 of the Rules in determining whether Dr Kabbabe had a prima face cause for preliminary discovery. Rule 7.22 provides that a “prospective applicant may apply to the Court for an order to require a person to discover to the prospective applicant any document or thing in the person’s control relating to the description of the prospective respondent.” In order to obtain such an order, the prospective applicant must satisfy the Court that:
- there may be a right for the prospective applicant to obtain relief against the prospective respondent; and
- the prospective applicant is unable to ascertain the description of the prospective respondent, despite having taken other reasonable steps; and
- another person, the respondent to the application for the preliminary discovery, knows or is likely to know that description, or has or is likely to have, or has had or was likely to have had, control of a document that would help ascertain that description.
Justice Murphy was satisfied, in relation to the first point above, that Dr Kabbabe may have a right to obtain relief for defamation against the anonymous review. He noted, importantly, that Dr Kabbabe was not required for the purposes of these proceedings to make out a prima facie case of defamation against the anonymous reviewer and that there may be a right for Dr Kabbabe to obtain relief is sufficient.
In relation to the second element of rule 7.22 of the Rules, the Court held that Dr Kabbabe had made all reasonable enquiries and taken all reasonable steps with Google to ascertain the identity of the anonymous reviewer. Dr Kabbabe had contacted Google on two separate occasions with no satisfactory outcome, and as such Justice Murphy was of the mind that he had done enough in this regard and could not be expected to continue to make fruitless enquiries.
Finally, Justice Murphy considered that Google is likely to have or have had control of a document or thing that would help ascertain the description of the prospective respondent, including subscriber information for the anonymous reviewers account, the IP address relating to the account, and the phone number and any location metadata associated with the account. Justice Murphy therefore granted Mr Kabbabe leave to serve on Google LLC by post in accordance with Article 10(a) of the Convention.
The decision of Justice Murphy in these proceedings suggests that Courts may be increasingly willing to expose anonymous reviewers for the purposes of pursuing defamation and other proceedings. Subscribers should be aware that preliminary discovery may be made in relation to an anonymous reviewer, and that service on an international company for such a preliminary discovery order may not be an impediment if there may be a right for a prospective applicant to obtain relief.