Federal Court of Australia

Lin v Google LLC [2021] FCA 1113

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth), the prospective applicant be granted leave to serve the originating application, affidavit of Moustafa Kheir sworn 27 July 2021, affidavit of Xu Hong (Andrew) Lin sworn 9 August 2021, and a copy of these orders (together, the documents) on the respondent, Google LLC, in the United States of America in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965, by sending the documents using international registered post, with an acknowledgment of receipt to be provided by Google to the prospective applicant, addressed to:

Google LLC

C/O Custodian of Records

1600 Amphitheatre Parkway

Mountain View, California 94043

United States of America

2.    Costs be reserved.

3.    The matter be listed for case management hearing on 11 October 2021.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1    The prospective applicant, Mr Xu Hong (Andrew) Lin, is a manager and ex-owner of a business called Strathfield Autobody which is located in a suburb of Sydney, New South Wales. On 12 August 2021, Mr Lin filed an originating application seeking an order under r 7.22 of the Federal Court Rules 2011 (Cth) for preliminary discovery of documents thought to be in the control of Google LLC, a limited liability company headquartered in the United States of America (USA).

2    Mr Lin requires the Court’s leave in order to effect service of the originating process outside Australia: r 10.43(1)(a) of the Rules. Mr Lin applied for leave to serve Google in the USA in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965, the so-called Hague Convention or, in the alternative, by email. For the reasons given below, Mr Lin will be granted leave to serve Google in the USA in a manner permitted by the Hague Convention, but not by email.

BACKGROUND

3    Strathfield Autobody is a business which provides “mechanical and smash repair work to customers across NSW”. The business has a Google “My Business” webpage, which appears on Google Maps. It can be viewed by anyone in Australia, or indeed anyone in the world, 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.

4    Mr Lin’s evidence was that, on or around 2 October 2020, a Google user with the profile name ‘Lucas’ posted a review on Strathfield Autobody’s Google business page. That review read as follows:

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.

5    It would appear that Mr Lin, who in certain circumstances goes by the English name “Andrew”, was the main subject or target of the negative assertions or allegations in the review. Mr Lin’s evidence was that the allegations against him were false. He also claims that they were defamatory and damaging to him and the business. His evidence was that, not long after the review was posted, a customer cancelled a booking. When Mr Lin asked the customer why he was cancelling his booking, the customer said that he had seen “some reviews”. Mr Lin also claimed, in his evidence, that some Chinese customers saw the review and “spread the word” amongst the Chinese community.

6    Mr Lin appears to suspect that the author of the review was a person who, at the time the review was posted, was the plaintiff in proceedings against him in a Queensland court. That person’s first name was ‘Luke’. In late October 2020, Mr Lin instructed his solicitors to email a letter to the solicitors who were acting for Luke in the Queensland proceedings. The letter referred to the negative review and, while not saying so directly, effectively asserted that Luke was its author. The letter claimed that the review was false and defamatory and demanded that it be removed. It was also noted that the letter constituted a “concerns notice” for the purposes of Pt 3 of the Defamation Act 2005 (NSW).

7    The solicitors to whom the letter was addressed replied to the letter. They said that they did not hold instructions from Luke in respect of the “issues” raised in the letter. Mr Lin’s solicitors then promptly emailed a copy of their letter to Luke personally. Mr Lin’s evidence was that, shortly after the letter was emailed to Luke, the negative review was removed from Strathfield Autobody’s Google business page. It would thus appear that Mr Lin’s suspicions may be well founded. He nevertheless sought to confirm his suspicions by obtaining information from Google.

8    In March 2021, Mr Lin’s solicitors sent an email to Google requesting data from Google for the purposes of determining the identity of the person who posted the negative review. Google responded to that email, but did not provide the requested data. It 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’s correspondence, 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.

9    Mr Lin’s solicitors have heard nothing further from Google. That circumstance appears to have prompted Mr Lin’s application for preliminary discovery from Google.

INTERLOCUTORY APPLICATION FOR SERVICE OUTSIDE AUSTRALIA

10    Mr Lin seeks leave to serve his application for preliminary discovery under r 7.22 of the Rules on Google in the USA.

11    Rule 10.42 of the Rules provides that, “[s]ubject to rule 10.43, an originating application, or an application under Part 7 of these Rules, may be served on a person in a foreign country in a proceeding that consists of, or includes, any one or more of the kinds of proceeding mentioned in the following table” (emphasis added). An application for preliminary discovery pursuant to r 7.22 of the Rules is an application under Pt 7 of the Rules to which r 10.42 may apply.

12    When rr 10.42 and 10.43 are read together, the result is that Mr Lin must satisfy five requirements for him to be granted leave to serve his originating application on Google in the USA. Those requirements are: first, that his application consists of, or includes, one or more of the kinds of proceedings mentioned in the table in r 10.42 (rr 10.42 and 10.43(4)(b) of the Rules); second, that the means by which he proposes to serve Google in the USA is in accordance with a convention, the Hague Convention or the law of the USA (r 10.43(2) of the Rules); third, his application is accompanied by an affidavit stating the name of the foreign country where Google is to be served and that the proposed method of service is in accordance with a convention, the Hague Convention or the law of the foreign country (r 10.43(3) of the Rules); fourth, the Court has jurisdiction in the proceeding (r 10.43(4)(a) of the Rules); and fifth, he has a prima facie case for all or any of the relief claimed in the proceeding (r 10.43(4)(c) of the Rules).

Proceeding of a kind listed in the table in r 10.42

13    Mr Lin contended the application fell within items 1, 4 and 5 in the table in r 10.42 of the Rules. Item 1 is a “[p]roceeding based on a cause of action arising in Australia”; item 4 is a “[p]roceeding based on a tort committed in Australia”; and item 5 is a “[p]roceeding based on, or seeking the recovery of, damage suffered wholly or partly in Australia caused by a tortious act or omission (wherever occurring)”. The contention that this proceeding is one of those kinds of proceedings appears to be based on the premise that Mr Lin’s application is an application based on the tort of defamation. That appears to have been the approach taken in a number of recent cases where leave to serve an application for preliminary discovery outside the jurisdiction has been granted in analogous circumstances: see Kabbabe v Google LLC [2020] FCA 126; Allison v Google LLC [2021] FCA 186; Kukulka v Google LLC [2020] FCA 1229; Seven Consulting Pty Ltd v Google LLC [2021] FCA 203 at [15]; Sydney Criminal Lawyers v Google LLC [2021] FCA 297.

14    The originating application which Mr Lin wants to serve on Google is not, however, itself a proceeding for the tort of defamation. It is an application for preliminary discovery from Google (Google being “another person” for the purposes of r 7.22 of the Rules) made on the basis that there may be a right for Mr Lin to obtain relief against someone else (the “prospective respondent”). None of the types of proceedings listed in the table in r 10.42 precisely align with an application for preliminary discovery. That is perhaps why Mr Lin, and the applicants in Kabbabe, Allison, Kukulka, Seven Consulting and Sydney Criminal Lawyers, have all relied on items 1, 4 and 5 in the table. The issue, however, is 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 items 1, 4 and 5. That issue was not squarely addressed in any of the earlier cases and was not addressed in Mr Lin’s submissions.

15    Despite the paucity of the submissions in respect of this issue, I am satisfied that Mr Lin’s application for preliminary discovery from Google can fairly be characterised as an action “based” on the tort of defamation committed in Australia, notwithstanding that the application is not itself for that cause of action. The application may be said to be “based on” a cause of action in defamation because Mr Lin’s claim to be entitled to preliminary discovery is based, at least in part, on the fact that he may have a right to obtain relief, including damages, from someone else (the prospective respondent) for defamation. I am satisfied on that basis that Mr Lin’s application is a proceeding of the kind mentioned in items 1, 4 and 5 of the table in r 10.42 of the Rules.

16    I am also prepared to accept that Mr Lin’s application may be said to be a kind of proceeding described by item 1 on a slightly different basis. The expression “cause of action” can be said to be wide enough to cover a right to seek relief in the nature of preliminary discovery. Mr Lin’s right to obtain that relief from Google (and hence the relevant cause of action) might be said to have arisen in Australia, for the purposes of item 1, because it is a right to obtain relief from an Australian court pursuant to the rules of that court.

Service in accordance with the Hague Convention

17    Mr Lin’s application is to serve Google in the USA in accordance with the Hague Convention. Both Australia and the USA are ‘Contracting States’ to the Hague Convention.

18    Article 10(a) of the Hague Convention stipulates that: “the present Convention shall not interfere with … the freedom to send judicial documents, by postal channels, directly to persons abroad”. Unlike Australia, the USA – the “State of destination” – makes no objection, declaration, reservation or notification against the terms of Article 10(a). Service of the originating application and accompanying documents on Google via registered post is therefore permitted by the Hague Convention for the purpose of r 10.43(3)(c)(ii) of the Rules: AIA Australia Ltd v Richards [2017] FCA 84 at [13]-[15] (Allsop CJ); Kabbabe at [9]; Barilaro v Shanks-Markovina (No 1) [2021] FCA 789 at [7]-[9].

The supporting affidavit – Proposed method of service

19    Mr Lin’s solicitor filed an affidavit in accordance with r 10.43(3) of the Rules which identified the USA as the country where Google is to be served. The affidavit also outlined the proposed method of service, being via international registered post, and stated that that method of service was permitted by the Hague Convention.

Jurisdiction

20    The Court must by satisfied that it has jurisdiction in the proceeding: r 10.43(4)(a) of the Rules. The relevant proceeding for the purposes of r 10.43(4)(a) of the Rules is the proceeding instituted by the originating application in respect of which leave to serve out of the jurisdiction is sought. In this case, the relevant proceeding is an application for preliminary discovery pursuant to r 7.22 of the Rules. There could be little doubt that the Court has jurisdiction to hear and decide an application for preliminary discovery made under the Rules: Kabbabe at [10]; Allison at [6]; Kukulka at [19]; Seven Consulting at [15]; Sydney Criminal Lawyers at [15].

Prima facie case

21    The Court must be satisfied that Mr Lin has a “a prima facie case for all or any of the relief claimed in the proceeding”: r 10.43(4)(c) of the Rules. The relief claimed in this proceeding is an order for preliminary discovery against Google under r 7.22 of the Rules. To obtain that relief, Mr Lin must establish three things: first, that there “may” be a right for him to obtain relief against the “prospective respondent” who, in Mr Lin’s case, is the person who caused the negative review to be published; second that Mr Lin is unable to ascertain the “description” of the prospective respondent; and third, “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. The Court must be satisfied that Mr Lin has a prima facie case in respect of each of those elements.

22    I am satisfied that Mr Lin has a prima face case in respect of each of the three elements that he must establish to obtain an order for preliminary discovery against Google.

23    As for the first element, it is unnecessary for Mr Lin to establish that he has a prima facie case in defamation against the person who was responsible for publishing the negative review. It is necessary only for him to establish that he “may” have a right to obtain relief in respect of the allegedly defamatory review: Kabbabe at [16]. The requirement to prove that there may be a right to obtain relief has been said to be “not onerous” and to involve only a low threshold: Boyd v Automattic, Inc [2019] FCA 86 at [49]; Kulkulka at [22]; Kabbabe at [16] and Seven Consulting at [21]. It must, however, be demonstrated that the potential right to relief is based on a cause of action that is known to law and that there is at least a real, not fanciful, prospect of success: Allphones Retail Pty Ltd v Australian Competition and Consumer Commission (2009) 259 ALR 354; [2009] FCA 980 at [54].

24    I am satisfied that Mr Lin has established that he has a prima facie case that he may have a right to obtain damages or other relief from the person who caused the negative review to be published. That right is based on a cause of action known to law, being the tort of defamation. I am satisfied that there is at least a real, not fanciful, prospect that Mr Lin may obtain that relief. The evidence adduced in support of this application establishes that Mr Lin has at least an arguable case that the review, while published on the Google business page of Strathfield Autobody, was defamatory of him personally.

25    It should perhaps be added, in this context, that Mr Lin has also established that this Court may have jurisdiction to entertain an action by him in defamation against the person who caused the defamatory publication to be published. The Court has jurisdiction to hear actions for defamation in respect of publications in the Australian Capital Territory and the Northern Territory by virtue of s 4(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth): Crosby v Kelly (2012) 203 FCR 451; [2012] FCAFC 96 at [35]. For the Court to have jurisdiction to entertain any action in defamation by Mr Lin, however, he will have to demonstrate that the relevant negative review was downloaded or read by someone in the Australian Capital Territory: Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at [44].

26    While Mr Lin has not adduced any evidence that the negative review was read or downloaded in either of those territories, I am nevertheless satisfied that Mr Lin has demonstrated that that may well be the case. The fact that a Google review is visible to the public in the Northern Territory and Australian Capital Territory, along with the rest of Australia, has previously been found, in analogous circumstances, to be sufficient to establish that the Court may have jurisdiction to hear the prospective claim: Kabbabe at [16]; Colagrande v Telstra Corporation Limited [2020] FCA 1595 at [15]; Boyd at [48]-[49]; Seven Consulting at [17]. Mr Lin’s affidavit evidence also suggests that Strathfield Autobody’s Google business page was widely downloaded and read. The autobody shop’s business page had over 10,000 views per month, with over 60 calls having been made to the shop via the Google page in September 2020, 53 in October and 54 in November 2020. This perhaps fortifies the inference that the review may have been downloaded and read in the Northern Territory or the Australian Capital Territory. If, however, Mr Lin does eventually commence proceedings in this Court for defamation, he will have to positively proof that the review was relevantly published in those jurisdictions.

27    It should also be added that, while this Court may have jurisdiction to try Mr Lin’s proceedings for defamation, if he chooses to file an application in this Court, the question whether this Court is the appropriate court for Mr Lin to commence proceedings for defamation is another matter altogether. It may be worthwhile for Mr Lin to note that if he does commence proceedings for defamation in this Court and recovers damages that do not exceed $100,000, he may be unable to recover all his costs of the action: see r 40.08 of the Rules. In all the circumstances, the District Court of New South Wales may well be a more appropriate forum for Mr Lin’s prospective action.

28    As for the second element, Mr Lin has adduced evidence which establishes, at least to a prima facie level, that he has been unable to ascertain the description of the person responsible for causing the negative review to be published. The effect of Mr Lin’s evidence was that, while he suspected that the author of the negative review was the individual named Luke who had commenced proceedings against him in Queensland, he had been unable to obtain information from Google which confirmed the identity of the person responsible for posting the review.

29    As for the third element, Google is prima facie “another person” for the purpose of r 7.22(1)(c)(ii) of the Rules, who “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”. A ‘document’ is defined to include “data or information stored or recorded by mechanical or electronic means”: Sch 1 of the Rules; Sony Music Entertainment (Australia) Ltd v University of Tasmania (2003) 129 FCR 472; [2003] FCA 532 at [48]. 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, so as to assist Mr Lin in identifying the person with the username Lucas who posted the negative review.

Conclusion in relation to leave to serve Google in the USA

30    Mr Lin has satisfied all the necessary requirements for the Court to grant him leave to serve Google in the USA in accordance with the Hague Convention, the proposed mode of service being by international registered post.

Substituted service

31    Mr Lin also sought, further or in the alternative, an order the effect of which was to permit him to serve Google by email. This was, in effect, an application for substituted service pursuant to r 10.24(a) of the Rules, which relevantly provides that “if it is not practicable to serve a document on a person in a way required by these Rules, a party may apply … for an order … substituting another method of service”.

32    Mr Lin contended that an order permitting service by email was appropriate given the delay and disruption caused to the international postal system by the current global pandemic and given the fact that Google is a multinational corporation with a history of responding to communications by email. He relied on two recent decisions of the Court where such an order was made: Australian Information Commission v Facebook Inc (2020) 144 ACSR 88; [2020] FCA 531 (AIC v Facebook) and Kukulka.

33    I am not persuaded that it is appropriate to make an order for substituted service permitting Mr Lin to serve Google by email.

34    The application for substituted service was effectively unsupported by any evidence. Mr Lin did not adduce any evidence, beyond bare assertion, that it was not practicable to serve Google by way of international registered post, as permitted by the Hague Convention. There was no evidence that Mr Lin had attempted to serve Google by international registered post but that service in that manner had not been successful: cf r 10.49 of the Rules. The broad and unsourced general assertion by Mr Lin’s solicitor that the COVID-19 pandemic was causing “delays and impracticalities associate[d] with international registered post” does not materially assist his application for substituted service. Nor does the equally general assertion by Mr Lin’s solicitor that the originating application was likely to come to Google’s attention because Google is a “multinational corporation with a history of responding to communications made to” a particular email address. Mr Lin’s solicitor appears to have made no attempt to ask Google whether it would be prepared to accept service by email.

35    Mr Lin’s solicitor annexed to his affidavit a printout of a Google webpage entitled “Serving Civil Subpoenas or Other Civil Requests on Google”. There was no evidence as to the date or currency of the information on that webpage, although a URL to the webpage was provided. In any event, the webpage noted that “[d]ue to COVID-19, Google personnel are working from home and physical offices are closed” and that accordingly “Google is unable to receive legal process via mail, express delivery or couriers sent to Google’s physical address”. The webpage also noted, however, that for “civil requests” from outside the USA, Google can be “reached” at a particular specified address and that Google is “unable to accept service by email, fax or regular mail”. When read in its entirety, the information on this webpage does not support Mr Lin’s application for service by email.

36    As for Mr Lin’s reliance on AIC v Facebook and Kukulka, it would appear that there was detailed or specific evidence in both of those cases concerning the impracticality of service by way of international registered post given the state of the pandemic in the USA at the time: see AIC v Facebook at [70] and Kukulka at [15]. No such evidence was adduced by Mr Lin. Moreover, circumstances may well have changed in the USA in recent times and the difficulties previously encountered as a result of the pandemic may no longer be so acute.

37    It should perhaps also be noted in this context that, 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.

38    There is an applicable agreed regime for service outside the jurisdiction. That regime, the Hague Convention, does not permit service by email. The agreed regime is subverted where jurisdiction is exercised permitting a party to substitute an alternative form of service: cf Laurie v Carroll (1958) 98 CLR 310 at 325; AIC v Facebook at [72]. The interests of international comity weigh against permitting service via email in the absence of compelling evidence as to why service in accordance with the Hague Convention is unlikely to be successful or feasible in all the circumstances. There is no such evidence in this case.

CONCLUSION AND DISPOSITION

39    Leave will be granted to Mr Lin for service outside Australia in accordance with Div 10.4 of the Rules. The application for substituted service permitting service by email is refused. The costs of this application should be reserved.

Associate:

Dated:    13 September 2021