Federal Court of Australia

B&P Group Pty Ltd v Google LLC (No 2) [2022] FCA 958

ORDERS

THE COURT ORDERS THAT:

1.    Google shall provide to the Prospective Applicant’s solicitors by email at catherine.ballantyne@madgwicks.com.au as soon as is reasonably practicable and in any event within 21 days of having received via certified mail this Order, the following information (to the extent that it is available):

    the subscriber registration information, including their name and address of the Google Account associated with the Google Maps review https://www.google.com/maps/contrib/110670958090780062198/photos/@-37.8261528,145.2795257,17z/data=!4m3!8m2!3m1!1e1?hl=en-US (the Google Account) as well as the IP addresses of the logins to the Google Account, to the extent that such information or data is in the possession of, and readily available to Google as of the date of this Order.

2.    No provision of this order is to be construed as requiring Google to provide to the Prospective Applicant the contents of any email sent to or from the Google Account.

3.    The Prospective Applicant acknowledges that Google may inform the owner of the Google Account of this request, in accordance with Google’s usual policies.

4.    Google may apply to the Court at any time to vary or discharge this Order, subject to first informing the Prospective Applicant by email.

5.    To the extent that the information disclosed pursuant to this Order contains personal information, save for that outlined in order 1 above, the Prospective Applicant will hold such personal information in accordance with all applicable privacy laws and ensure only proportionate and appropriate use of such data.

6.    There shall be no costs order for or against Google.

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

REASONS FOR JUDGMENT

ANDERSON J:

1    The Prospective Applicant in this proceeding (Accent) seeks preliminary discovery from the Prospective Respondent (Google), of subscriber registration information which includes the name and IP address, among other things, of a Google Account (Google Account) which has made an allegedly defamatory Google review under the moniker “Timmy Foreign” (Review).

2    The background facts to this proceeding can be found at [1] to [5] of my previous judgment in B&P Group Pty Ltd v Google LLC [2022] FCA 538.

3    Accent submits that the following statements made by “Timmy Foreign” in the Review are untrue and constitute defamatory imputations against the staff of Accent pursuant to the Defamation Act 2005 (Vic):

… they're practically scamming you

… Don't even get me started with the staff! They can't even speak English, and always had the demeanour of wanting to fight someone

4    Accent further submits that the above statements, as well as following statements made by “Timmy Foreign” in the Review, are false and malicious and breach the tort of injurious falsehood:

… not a good company at all

… materials are overpriced and can be purchased with a cheaper cost

… poor consumer service

5    Accent believes that the Review was written by a competitor under the “Timmy Foreign” moniker. Accent submits that, if this is the case, the statements constitute unconscionable conduct pursuant to s 20 of the Australian Consumer Law (ACL), being schedule 2 of the Competition and Consumer Act 2010 (Cth).

6    Accent seeks preliminary discovery from Google to identify the Google Account so that it may pursue its claim against the person that made that Review.

Consideration

7    I am satisfied that orders for preliminary discovery of the Google Account should be made.

8    Rule 7.22(1) of the Federal Court Rules 2011 (Cth) (Rules) states:

7.22    Order for discovery to ascertain description of respondent

(1) A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant satisfies the Court that:

(a) there may be a right for the prospective applicant to obtain relief against a prospective respondent; and

(b) the prospective applicant is unable to ascertain the description of the prospective respondent; and

(c) another person (the other person):

(i) knows or is likely to know the prospective respondent's description; or

(ii) 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.

9    I am satisfied that the requirements in r 7.22 are met in the present case and that it is appropriate in the exercise of discretion to require Google to give discovery to the prospective applicant under r 7.22(1)(c) of all documents in their control in relation to the Google Account information.

10    For the purposes of r 7.22(1)(c), I am satisfied that Google is likely to have access to documents that may contain the Google Account information and that Google’s data would be of assistance to the prospective applicant in identifying the anonymous reviewer.

11    In order for the Court to grant an application for preliminary discovery of this kind, the Court must be satisfied that:

(a)    the application consists of or includes one or more of the kinds of proceedings mentioned in items 1, 4 and 5 of the table to r 10.42, specifically rr 10.42 and 10.43(4)(b) of the Rules;

(b)    the Court has jurisdiction in this proceeding; and

(c)    the prospective applicant has a prima face case.

12    I am satisfied that these conditions, which have been concisely outlined by Wigney J in Lin v Google LLC [2021] FCA 1113 (Lin), are satisfied in this case. That is so for the following reasons.

13    The application consists of or includes one or more of the kinds of proceedings mentioned in items 1, 4 and 5 of the table to r 10.42, specifically rr 10.42 and 10.43(4)(b) of the Rules. While none of the proceedings listed in the table in r 10.42 align with an application for preliminary discovery, as explained in Lin at [15], an application for preliminary discovery “can be fairly characterised as an action “based on” the tort of defamation committed in Australia, notwithstanding that the application is not itself that cause of action”. This is because the “claim to be entitled to preliminary discovery is based, at least in part, on the fact that the prospective applicant may have a right to obtain relief, including damages, from someone else (the prospective respondent) for defamation”: see Kandola v Google LLC [2021] FCA 1262 at [8] (Kandola) and Lin at [14]-[15].

14    The Court has jurisdiction to hear this application for preliminary discovery pursuant to r 7.22 of the Rules: Kandola at [11] citing Lin at [20]

15    I am also satisfied that the prospective applicant has a prima facie case in respect of the application for preliminary discovery pursuant to r 7.22 of the Rules. In Kabbabe v Google LLC [2020] FCA 126 (Kabbabe) at [14], Murphy J set out the following three requirements that a prospective applicant must satisfy in order to obtain preliminary discovery:

(1)    there may be a right for the prospective applicant to obtain relief against a prospective respondent;

(2)    the prospective applicant is unable, notwithstanding having made reasonable enquiries and taken any other steps reasonably required in the circumstances, to ascertain a description of the prospective respondent; and

(3)    another person to the application for preliminary discovery, knows or is likely to know that description, or has or was likely to have had, control of a document that would help ascertain that description.

16    With respect to the prima facie case, the prospective applicant need only establish that they “may” have a right to obtain relief: Kabbabe at [15] (Murphy J). I am satisfied that the relevant threshold is met. The affidavit of Sadi Hamidy sworn on 7 April 2022 (Hamidy Affidavit) deposes that the statements in the Review are untrue and misleading, that there has been potential loss and damage caused and that Mr Hamidy suspects that the Review may have been posted under a false name by a competitor. These facts support a prima facie case for causes of action in defamation, the tort of injurious falsehood and a breach of the ACL.

17    Further, there is evidence that the prospective applicant made reasonable enquiries to ascertain the identity of the Google Account by corresponding with Google and making enquiries as to whether information relating to the Google Account could be obtained.

18    As stated above, I am also satisfied that Google is likely to have the requisite control of the data that would be of assistance to the prospective applicant in identifying the anonymous reviewer.

19    For the purposes of r 7.22(1)(c), I am satisfied that Google is likely to have access to the Google Information that the prospective applicant seeks.

20    Accordingly, I am satisfied that orders for preliminary discovery in the form sought by the prospective applicant be made pursuant to r 7.22(1) of the Rules.

Associate:

Dated:    18 August 2022