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[2019] FCA 86
Federal Court of Australia
2019-02-04
Kerr J
Original judgment source is linked above.
KERR J: 1 The Applicant, Mr Timothy Boyd, has filed an urgent application before the start of the proceeding for interlocutory injunctions in relation to matters published on the internet. The First Respondent, Automattic, Inc (Automattic), and the Second Respondent, Knock, Knock WHOIS Not There Inc (Knock Knock), are both corporations domiciled in the United States of America. I first set the application down for directions on 15 January 2019. At that stage, the issues included whether or not leave should be granted to Mr Boyd to serve his application out of the jurisdiction pursuant to r 10.43 of the Federal Court Rules 2011 (Cth) (the Rules). 2 In that regard, service out of the jurisdiction is not available as of right. The normal course is to apply for leave to serve out of the jurisdiction before taking that step, but the Rules envisage that it is possible to serve an application first, and seek leave later. In this instance, whether leave might have been granted or refused is moot because Mr Boyd served the Respondents by the means that they provided for (that is electronically) and they in turn have filed a notice of address for service. Their notice of address for service was filed without qualification, and no application has been made to set service aside for any want of prior approval by the Court. In those circumstances, the Respondents have submitted to the jurisdiction. The Court thus has before it Mr Boyd's application for the following orders: 1. An Interim Injunction to compel the Respondent[sic] within three business days of receipt of Service of this Order to disclose to the Applicant, information it holds in respect to the website www.timbovdaustralian.com, including but not limited [to] persons registering the domain and publishing the site as to basic Information, transaction and/or billing Information, site creation, posting and revision history and contact information associated with this domain registration and its publication; 2. An Interim Injunction to compel the Respondent within three business days of receipt of Service of this Order to suspend this domain www.timbovdaustralian.com; and to suspend publication of the website published at this domain name; and 3. An Interim Injunction to restrain the publisher of the site, once revealed by the Respondent from publishing any further defamatory material in any forum about the Applicant. 3 In support of his application, Mr Boyd filed an affidavit dated 15 January 2019 in which he deposes that he is a resident of Australia and draws the Court's attention to what he submits to be defamatory material published on a website which he contends is hosted by the First and/or Second Respondents. 4 When the matter came before the Court today for the hearing of Mr Boyd's application, Ms Sluiter of counsel appeared for both the Respondents. Mr Boyd was self-represented. Counsel did not object to Mr Boyd reading the affidavit that he had filed on 15 January 2019. I proceed on the basis that that is in evidence before me and its substance is not disputed. 5 At [4] Mr Boyd deposes that "… [t]he Publisher of the website is unknown, and is protected from disclosure under contract with the Respondents." The material in question is published on a website registered with the domain name www.timboydaustralian.com. Mr Boyd says that he is known as a business person and as an Australian, such that that website name identifies him as the person the subject of the publications. 6 He submits that the Respondents provide domain name registration services and website hosting services, and in this instance, an unknown registrant of the domain name and publisher of the site www.timboydaustralian.com has, in Mr Boyd's words, "contracted these service[s] from the Respondents in accordance with the term of service of the Respondents." 7 Mr Boyd deposes at [8] as follows: The publisher of the website … has published unsubstantiated, false, defamatory material on this site, with the intent to deliberately cause harm to me, my business and personal reputation. Specifically, the false, misleading and defamatory statements make claim that: (a) I am a fraud; (b) I am a com [sic] man; (c) I am a party to fifteen million dollars in judgements; (d) I have defrauded parties, including professional investors; (e) I have forged signatures; (f) I have sold securities of companies that did not exist; (g) I have borrowed over two million dollars from people that has [sic] not been paid back; (h) That I was renting a property in Scottsdale, AZ for seven thousand dollars per month; (i) That I owe the owners of said property two months of rent; (j) That companies referred to as my own, including Best Friends Credit, Blue Print Partners and Pic Pharmaceuticals are fraudulent; (k) That I have had at least three restraining orders filed against me by women; (l) That there are at least a dozen individuals willing to testify in support of these statements; and (m) The website refers to five judgements that I am not a party to, nor have I ever received service of. A true and accurate copy of the content published in the website is annexed as TB3. 8 The materials that Mr Boyd exhibits to his affidavit at Annexure TB1 and Annexure TB3 are consistent with the substance of their content that he summarises at [8]. Those annexures appear to be screenshots of two pages of the website. Both screenshots include, in bold, the words, "Australian Tim Boyd is a fraud and a con man." It is not contested by the Respondents that, subject to the availability of a defence and the appropriateness of the jurisdiction of this Court, those matters convey defamatory imputations. Indeed, it could hardly be contested to the contrary. 9 Ms Sluiter does not contest that the website www.timboydaustralian.com is hosted by the Respondents. Her written submissions accept that Automattic is a web development corporation. It owns WordPress.com, a web hosting and website development platform. WordPress.com bloggers can purchase a custom domain name through WordPress.com (such as [customwebsitename].com, as opposed to [customwebsitename].wordpress.com), which the blogger then owns. 10 Mr Boyd in his affidavit refers to what he says is a private publication contract between the publisher of the website and the Respondents that prevents the publisher of the site from being disclosed, absent a court order. 11 Annexure TB2 of Mr Boyd's affidavit shows the product of his search results for www.timboydaustralian.com. Whether it formally proves the terms of a contract might be disputed, but it undoubtedly demonstrates that when the details of the registration of the domain name www.timboydaustralian.com are searched for, what is disclosed is that the domain name is registered in the name "Private Whois" by an organization called "Knock Knock WHOIS Not There, LLC." On the basis of Ms Sluiter's submissions and Mr Boyd's affidavit I infer that Knock Knock is a US Corporation in the name of which Automattic and Word.Press.com obtain registration of websites allowing the details of those who control the domain names purchased from them not to be disclosed. 12 I now turn to whether or not the proposed orders should be made. It is convenient in these written reasons to deal first with the second and third injunctions sought by Mr Boyd and only then with the first.
Proposed Order 2 13 Proposed order 2 is for an interim injunction to compel the Respondents, within three business days of receipt of service of an order, to suspend the domain name, www.timboydaustralian.com and to suspend publication of the website published at that domain name. 14 It is understandable, assuming the defamatory statements that have been published regarding him that Mr Boyd would seek such an order. However, the law is settled that in addition to the usual principles that apply with respect to the caution that the Court should have regard to in the granting of interlocutory injunctions, there is additional reason to be cautious in respect of the special position in defamation. 15 Mr Boyd's oral submissions conceded that the principles affirmed by the High Court of Australia in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 (O'Neill) govern the circumstances in which an interlocutory injunction will be issued. The relevant principles are as explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 119 CLR 618 at [4]: … The Court addresses itself in all cases, patent as well as other, to two main inquiries. The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief: Preston v Luck (1884) 27 ChD 497, at p 506; Challender v. Royle (1887) 36 ChD 425, at p 436. How strong the probability needs to be depends, no doubt, upon the nature of the rights he asserts and the practical consequences likely to flow from the order he seeks. This, if merely pecuniary interests are involved, "some" probability of success is enough: Attorney-General v. Wigan Corporation (1854) 5 De GM &G 52, at pp 53, 54 (43 ER 789) and in general it is right to say, as Roper C.J. in Eq. said in Linfield Linen Pty. Ltd. v. Nejain (1951) 51 SR (NSW) 280, at p 281: "There are disputes of fact as to a number of matters … but this being an application for an interlocutory injunction I look at the facts simply to ascertain whether the plaintiff has established a fair prima facie case and a fair probability of being able to succeed in that case at the hearing." Thus where the defendant goes into evidence on the interlocutory application the Court does not undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case. James L.J. explained the general attitude of the Court when he said, in Plimpton v. Spiller (1876) 4 ChD 286, at p 289, in relation to a patent action where there was no outstanding issue as to validity: "… the Court, not forming an opinion very strongly either one way or the other whether there is an infringement or not, but considering it as a fairly open question to be determined at the hearing, and not to be prejudiced by any observation in the first instance, reserves the question of infringement as one which will have to be tried at the hearing, and which it will then have to consider." 16 The additional hurdle in defamation matters was reaffirmed in O'Neill in which Gummow and Hayne JJ noted the profound "issue involved in the policy of the law respecting prior restraint to publication of allegedly defamatory matter" at [86]. There was nothing novel in that proposition. In Church of Scientology of California Inc v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344 (Church of Scientology) Hunt J had earlier noted at 349 that it is "settled law that the power to grant interlocutory injunctions in defamation cases must be exercised with great caution, and only in very clear cases." Indeed that has been the law since the case of Bonnard v Perryman [1891] 2 Ch 269 (Bonnard). 17 Opposing the making of such an order, Ms Sluiter referred the Court to the relative lack of detail about what harm Mr Boyd has suffered and the possible defences that might be raised by the person who actually caused that material to be placed on the website. There may be a defence of truth available, or some other defence under the relevant defamation law. 18 I accept Ms Sluiter's submissions. On the very limited materials before the Court, the likelihood that there might be a sustainable defence may seem slight but at this earliest of interlocutory stages the Court has had the benefit of only Mr Boyd's side of the case. Beyond his denial, Mr Boyd has adduced no evidence going to the objective falsity of the published claims on the website. The Court cannot know if a prospective respondent would seek to put the truth of those claims in issue. Thus the Court is in no position to test whether or not Mr Boyd has done any or all of the things that he is asserted to have done. Moreover what is in evidence regarding Mr Boyd's business and the losses he asserts he has sustained because of those statements as referred to in his affidavit is vague and in the nature of mere general assertions. The Court is unable to find that there is a prima facie case made out that Mr Boyd will ultimately be successful, let alone in a "very clear" case in the words of Hunt J in Church of Scientology. 19 The absence of evidence before the Court of any actual publication in Australia (ie that the materials on the website have been downloaded by persons in Australia) also stands in the way of a prima facie case being established. 20 In an application under r 7.22, there is no requirement to establish a prima facie case. It is to the contrary with respect to an application for an interlocutory injunction of the kind that Mr Boyd seeks. Indeed, it is only in the most extraordinary of cases that such an order is to be made. 21 Given the ease of publication of defamatory matters on the internet, it may be questioned if principles going back to Bonnard remain appropriate in a world in which reputations can be damaged in an instant. Cases such as the present may lead policy makers to consider whether the Courts should be given a larger capacity to make pull down orders in respect of matters published in the virtual world pending the determination of a proceeding brought in circumstances such as that which Mr Boyd has placed before the Court. But as the law stands presently Mr Boyd has failed to establish an entitlement for proposed Order 2. 22 Ms Sluiter advised the Court, that the Respondents would neither consent to nor oppose an order that the Respondents 'geoblock' persons in Australia from accessing the site, www.timboydaustralian.com. That concession notwithstanding, I am simply not satisfied on the materials currently before the Court that Mr Boyd has established the criteria for an interlocutory mandatory injunction to compel the Respondents to disable the website by suspending the domain name www.timboydaustralian.com.
Proposed Order 3 23 Mr Boyd seeks a further interim injunction to restrain the publishers of the site, once revealed by the Respondents, from publishing any further defamatory material about him. All that has been said in relation to proposed Order 2 applies equally to proposed Order 3 but with greater force, given that its terms go to future matters and to prior restraint in circumstances where the Court cannot know the nature of what might be later published and no criteria has been advanced such that the Respondents would know whether or not a failure to remove any new material might place them in contempt. I decline to make such an order. 24 Having stated my reasons in respect of those proposed Orders I return to proposed Order 1.
Proposed Order 1 25 Ms Sluiter contended in her written submissions at [9] that Order 1 is in effect an order for preliminary discovery. 26 Having read the Respondents' outline of submissions, Mr Boyd indicated that he would seek leave of the Court to waive any provision of the Rules which would prevent his application for an interim injunction to compel the respondents to disclose information regarding the identity of the publishers of the website in question to stand as an application for preliminary discovery of their identity pursuant to r 7.22 of the Rules. 27 Ms Sluiter raised no objection to that course being pursued. I made orders by consent to that effect. 28 However, lest there be any misunderstanding, I reject that proceeding by way of r 7.22 is available as a pathway to the extensive discovery sought in proposed Order 1. It is not in the interests of justice to allow a prospective applicant to use a mechanism otherwise specifically provided for in the Rules to obtain more extensive discovery about an undisclosed third party than is provided for by r 7.22. 29 In that regard, I note that the term "description" referred to in r 7.22 is defined in Sch 1 of the Rules as follows: (a) for a person who is an individual -- the person's name, residential or business address and occupation; (b) for a person that is not an individual: (i) the person's name; and (ii) the address of one of the following: (A) the person's registered office; (B) the person's principal office; (C) the person's principal place of business. 30 In considering in due course whether or not to make an order under r 7.22, such an order would necessarily be confined according to that definition. 31 I return, therefore, to the issue of whether or not an order should be made under r 7.22 on the basis that the parties have consented to the application being dealt with in that more limited manner. Rule 7.22 empowers the Court to make orders to allow a party, or prospective party, to ascertain the description of a prospective respondent. Its terms are as follows: 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. (2) If the Court is satisfied of the matters mentioned in subrule (1), the Court may order the other person: (a) to attend before the Court to be examined orally only about the prospective respondent's description; and (b) to produce to the Court at that examination any document or thing in the person's control relating to the prospective respondent's description; and (c) to give discovery to the prospective applicant of all documents that are or have been in the person's control relating to the prospective respondent's description. Note 1 Control and description are defined in the Dictionary. Note 2 For how discovery is to be made, see rule 7.25. (3) The prospective applicant must provide the person with sufficient conduct money to permit the person to travel to the Court. Note Conduct money is defined in the Dictionary. 32 At the threshold I should indicate that it is not contentious that an order for discovery of this kind can be made with respect to a person or corporation domiciled in the United States of America. That concession was appropriate: see Gearhart United Pty Ltd v Omni Oil Technologies (Asia) SDN BHD [2010] FCA 401; 267 ALR 630. Ms Sluiter on behalf of the Respondents explicitly accepted the Court had power to make such an order assuming the requirements of r 7.22 were met. 33 It is uncontentious that Automattic nor Knock Knock have declined to tell Mr Boyd the name and details of the person who put the material he complains of on the website www.timboydaustralian.com. 34 Three elements are necessary before the Court can be satisfied that there is an appropriate basis to make an order pursuant to r 7.22. First, the prospective applicant must satisfy the Court that there may be a right for him or her to obtain relief against a prospective respondent. Second, the prospective applicant must establish that he or she is unable to ascertain the description of the prospective respondent. And third, another person must know, or be likely to know, the prospective respondent's description, or have, or be likely to have, or had, control of the document that would help ascertain the prospective respondent's description. 35 In respect of the third element, there was no dispute between the parties. Ms Sluiter's written submissions acknowledged that the Respondents hold such information. The relevant paragraphs are as follows: 8 Automattic offers a privacy protection service called "Knock Knock WHOIS Not There," which protects the name and contact information of domain name owners from public view. (https://en.support.wordpress.com/domains/domain-registrations-and-privacy/) This service is purchased by those who do not [wish] for their private contact information to be displayed to the public online by the domain name registry. … 10 The Respondents, as the web hosting platform, have the following information regarding the website, at the time of creation of the website: a. name; b. user name; c. telephone number; d. email address; e. date and time at which the site was created; and f. IP address from which the site was created. 36 I therefore turn to the other two elements that Mr Boyd must satisfy. In respect of the first element it is for Mr Boyd to satisfy the Court that there may be a right for him to obtain relief against a prospective respondent: see Levis v McDonald [1997] FCA 349; 75 FCR 36 per Lindgren J at 44. In that case his Honour held: I readily accept that it is not required that a prima facie case be established. As was put on behalf of Messrs Levis, Armstrong and Lee, quite apart from the fact that there is no such element referred to in O 15A r 3, there is a distinction between that rule and O 15A r 6. In the latter case, it is required that there be: "reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained." 37 I have earlier (at [6]-[7]) referred to the affidavit material regarding the matters that were published on the site www.timboydaustralian.com. Having regard to the content on the website it would be remarkable if the Court were to conclude otherwise than that Mr Boyd may have a right against the person who has control of that site. Subject to the question of jurisdiction of this Court discussed later in these reasons I so conclude. 38 In respect to the second element it is uncontentious that Mr Boyd currently does not know the identity of such the person who controls the domain name www.timboydaustralian.com and that the First and Second Respondents do. It is uncontentious that he has asked the Respondents to provide that information to him and they have declined to do so absent a court order. 39 Ms Sluiter submits that Mr Boyd should first have made enquiries directly to the blogger through the subject website's contact page. I reject that submission. In my opinion Mr Boyd did not act unreasonably by not first seeking that information directly from the person or persons who uploaded the material. 40 It is wholly implausible that a person who has taken advantage of the privacy protection that is provided by Automattic by registering the domain name under the anonymity of "Knock Knock WHOIS Not There," and published material of the nature referred with no indication of its source has not chosen deliberately to hide their identity through that mechanism. It may be in other instances that further enquiry on the expectation of voluntary disclosure might be reasonable but I am prepared to infer that in this instance it would have been futile. 41 Ms Sluiter also referred the Court to the possibility that Mr Boyd might have first sought an order in the courts of the United States of America pursuant to s 1782 of Title 28 of the United States Code. I accept that the latter alternative was, and perhaps remains, available to Mr Boyd. While the Court is grateful to Ms Sluiter for drawing that possibility to Mr Boyd's attention, the availability of an alternative method whereby broadly equivalent (indeed potentially wider) preliminary discovery might be sought through seeking relief in a foreign court is not a bar to this Court making an order pursuant to r 7.22. Ms Sluiter did not suggest it did. 42 The only remaining complexity in this matter is whether or not this Court's jurisdiction is sufficiently engaged that it be satisfied that Mr Boyd may have a right to obtain relief against a prospective respondent. If this Court has no possible basis to exercise jurisdiction in a matter of defamation in the terms and circumstances Mr Boyd has given evidence about he would fail to establish that he may have a right to obtain relief. 43 I therefore turn to the circumstances in which this Court has jurisdiction in a matter involving defamation. The starting point is that publication of a defamatory statement takes place where the material is heard or read. Thus, defamatory articles on the internet are published in Australia when they are downloaded in Australia: see Dow Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575. A comprehensive review of the sources of jurisdiction of this Court was set out in Rana v Google Inc [2017] FCAFC 156 (Rana) per Allsop CJ, Besanko and White JJ at [15]-[24]. 44 Insofar as is relevant to the present proceedings, Rana makes it plain (at [24]) that s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) had the effect of conferring original jurisdiction upon this Court with respect to a proceeding that would be within the jurisdiction of either the Australian Capital Territory or Northern Territory Supreme Courts. That accords with the earlier decision of Crosby v Kelly [2012] FCAFC 96; 203 FCR 451 in which Perram J had reasoned (at [2]) that s 9(3) has the effect of "creating surrogate Commonwealth law by reference to the jurisdiction of the ACT Supreme Court and thereafter providing a law of the Commonwealth under which matters may then be seen to arise". The plurality judgement in that case was to no different effect. 45 It is uncontentious that the Australian Capital Territory has enacted s 118 of the Civil Law (Wrongs) Act 2002 (ACT) to implement the uniform defamation laws now applying in every state and territory. Rana makes plain that if there is publication of a defamatory statement in the Australian Capital Territory, this Court has jurisdiction in respect of it. 46 Mr Boyd's affidavit asserts at [4(d)] that "[t]his matter is an intranational matter and involves publication in multiple jurisdictions via the internet of defamatory materials. …" 47 There is no evidence before the Court as to whether, in any of those jurisdictions, the statements have been actually read by third parties. I note that Mr Boyd, in oral submissions, indicated that he is aware of publication having taken place in at least Tasmania and Queensland. I placed no reliance on that assertion made from the bar table. 48 However, in my view, where highly controversial material has been published regarding a resident of this country and made available to be read or downloaded from a website without restriction anywhere in Australia, it would be unrealistic to conclude other than that those words may have been read in, inter alia, the ACT and the Northern Territory. 49 That does not involve the Court concluding that the materials have been read, only that it is a foreseeable and perfectly rational conclusion to draw that the provisions of r 7.22(a) are adequately engaged by the very limited evidence Mr Boyd has put before the Court. The conclusion that this Court has jurisdiction to make an order for preliminary discovery is open on the very low threshold of satisfaction required. 50 Having sought submissions as to what, if any, contingent orders should be made if the Court were to make an order under r 7.22, Ms Sluiter indicated that her clients would be concerned if Mr Boyd might make any wider use of the information he would be provided with than determining whether or not to commence proceedings in defamation. 51 Ms Sluiter did not draw attention to any authority that would suggest that an implied obligation as to confidentiality would not extend to this form of preliminary discovery. On that basis I declined to make an order for confidentiality having discussed with Mr Boyd the obligations that customarily attend discovery.
Disposition and orders 52 For the reasons that I have given, the Court will make orders that will permit Mr Boyd to ascertain through the First and Second Respondents such information as they may be able to provide to him regarding the name and address of the person who has control of the website www.timboydaustralian.com. I am satisfied that the test required for orders pursuant to r 7.22 has been made out. 53 I make orders in the following terms: THE COURT ORDERS BY CONSENT:
Boyd
Automattic, Inc