Federal Court of Australia

Moran v Google LLC [2024] FCA 181

ORDERS

THE COURT NOTES THAT:

A.    The application for preliminary discovery made by the prospective applicant was heard on Friday, 1 March 2024 at the Federal Court of Australia, New South Wales Registry.

B.    On reading the prospective applicant’s evidence, and upon (a) hearing submissions from counsel for the prospective applicant, (b) being advised of efforts to bring this application for preliminary discovery to the notice of John Doe and Jane Doe, (c) being advised by counsel for the prospective applicant that Google LLC (Google) was served with the application for preliminary discovery, and (d) where Google did not appear to oppose the application for preliminary discovery and has not taken steps to attorn to the jurisdiction of the Court, the Court was prepared to make the following orders.

THE COURT ORDERS THAT:

1.    Google is to provide to the prospective applicant by email at Jacob.Zeitoun@CMCLawyers.com.au, within 20 days of being served with these orders:

(a)    the subscriber’s registration information of the Google account associated with the Google Maps review: <https://www.google.com/maps/contrib/107430610979140888092/reviews/@-33.8638986,151.2092424,17z/data=!4m3!8m2!3m1!1e1?hl=en-US>

(First Google Account) as well as the IP addresses of the logins to the First Google Account, to the extent that such information or data is in the possession of and reasonably available to Google as at the date of these orders; and

(b)    the subscriber’s registration information of the Google account associated with the Google Maps review attributed to “H P” and posted to the Google Maps Review page accessible at: <https://www.google.com/search?kgmid=/g/1tj4h610&hl=en-AU&q=CMC+Compensation+Lawyers+%7C+Sydney&kgs=922b6dd0986da38d&shndl=17&shem=losc&source=sh/x/kp/osrp/m5/1>

in or around December 2022 as identified in Annexure JDZ2 to the affidavit of Jacob David Zeitoun sworn on 11 October 2023 (Second Google Account) (noting that the specific Google Maps review URL address is unavailable to the applicant as the review has since been deleted), as well as the IP addresses of the logins to the Second Google Account, to the extent that such information or data is in the possession of and reasonably available to Google as of the date of these orders.

2.    The applicant acknowledges that Google may inform John Doe and Jane Doe, being the owners of the Google accounts of this request, in accordance with Google’s usual policies.

3.    There be no order as to costs of the application for preliminary discovery for or against Google.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

HALLEY J:

1    The prospective applicant in this proceeding (Mr Moran) seeks preliminary discovery from the prospective respondent (Google) of subscriber registration information which includes the name and IP address, among other things, of two Google accounts (Google accounts).

2    Mr Moran submits that each of the reviews published by the Google accounts made defamatory statements of him. The two reviews were published under the pseudonyms “H P” and “W 1”.

3    Mr Moran relies on two affidavits sworn by Jacob David Zeitoun, on 11 October 2023 and 19 February 2024 in support of his application. Mr Zeitoun is a solicitor employed by the solicitors for Mr Moran, CMC Lawyers Pty Ltd.

4    The review posted by W 1 includes an allegation that the “managing partner was accused of shady things in the past and their firm suffered reputational damage”.

5    Mr Moran is, I understand, the managing partner of CMC Compensation Lawyers, the subject of the review.

6    The second review includes an allegation that “Brendan Moran was in the papers a while ago for criminal allegations against him”.

7    It is readily apparent that both reviews contain material that is defamatory of Mr Moran, subject in the case of the first review, to Mr Moran being able to demonstrate that he would have been understood to be the person identified in that review.

8    Mr Moran now seeks preliminary discovery from Google to identify the persons behind the pseudonyms so that he may bring proceedings against those persons for defamation.

9    I previously made orders for service on Google in the United States pursuant to r 10.42 and r 10.43 of the Federal Court Rules 2011 (Cth) (Rules), of an originating application by Mr Moran for discovery and accompanying materials on Google. Those materials were served on Google in compliance with the Court’s orders, but in a series of correspondence with Google, Google has now indicated that it is prepared on a voluntary basis to provide, in substance, the material sought on the basis that the Court makes specific orders in a form, or substantially in the form, that they have provided to the solicitors for Mr Moran.

10    I am satisfied that the specific orders for preliminary discovery now proposed by Mr Moran, which are agreed to by Google, should be made.

11    Rule 7.22(1) of the Rules provides:

(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.

12    I am satisfied that each of the requirements of r 7.22 of the Rules have been met in this case.

13    Specifically, I am satisfied that Mr Moran may have a right to obtain relief against prospective respondents, being the authors of the two reviews, and given the use of pseudonyms, Mr Moran is not able to ascertain the description of the prospective respondents at this time. Further, I am satisfied that Google has, or is likely to have control of documents that would help ascertain the prospective respondents’ descriptions.

14    In order for the Court to grant an application for preliminary discovery, given Google is located overseas, the Court must be satisfied that:

(a)    the application falls within r 10.42 or the Court is otherwise prepared to grant leave pursuant to r 10.43;

(b)    the Court has jurisdiction of the proceeding; and

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

15    I am satisfied that the application for preliminary discovery can be characterised as a proceeding that is based on a tortious act or omission that was done or occurred wholly or partly in Australia or in respect of which the damage was sustained wholly or partly in Australia, pursuant to r 10.42(a) of the Rules.

16    First, I am satisfied that Mr Moran’s claim to be entitled to preliminary discovery is based, at least in part, on the fact that Mr Moran as the prospective applicant may have a right to obtain relief, including damages, from the unidentified authors of the reviews, for defamation: Kandola v Google LLC [2021] FCA 1262 at [8] (Cheeseman J) and Lin v Google LLC [2021] FCA 1113 at [14]-[15] (Wigney J).

17    Second, I am satisfied the Court has jurisdiction to hear an application for preliminary discovery pursuant to r 7.22 of the Rules: Kandola at [11], citing Lin at [20].

18    Third, for the reasons that I have outlined above, I am satisfied that Mr Moran has a prima facie case in defamation against the unidentified authors of the reviews. I note that with respect to a prima facie case a prospective applicant need only establish that they “may” have a right to obtain relief: Kabbabe v Google LLC [2020] FCA 126 at [14]-[15] (Murphy J).

19    I also note that the evidence establishes that Mr Moran made reasonable inquiries to ascertain the identity of the Google accounts in correspondence with Google and made inquiries as to whether information relating to the Google accounts could be procured.

20    For these reasons I am satisfied that orders for preliminary discovery in the form sought by Mr Moran as the prospective applicant should be made pursuant to r 7.22(1) of the Rules.

Associate:

Dated:    1 March 2024