Kandola v Google LLC

8. Subject to the issue of costs, the second prospective respondent neither consents nor opposes in principle the making of an order that it is to provide preliminary discovery to the prospective applicants. Accordingly, in the event that the second prospective respondent is required to give preliminary discovery, it is likely that such discovery will be required by 4 pm, 1 November 2021. The second prospective respondent will take necessary preparatory steps in accordance with that likely timeframe. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The prospective applicants, Rachel Kandola and Tejinder Singh Kandola, are company secretary and director respectively of Unicorn Air Conditioning and Refrigeration Pty Ltd. They are both Unicorn employees. Unicorn operates an air-conditioning service business in New South Wales. They are self-represented. 2 On 27 August 2021, the prospective applicants filed an originating application seeking various orders including 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 with its headquarters in the United States of America and Sensis Pty Ltd, the first and second respondents respectively. Although not expressly included in the originating application, at the hearing the prospective applicants also sought an order for substituted service in respect of Google. The prospective applicants relied affidavits affirmed by each of them on 21 August 2021. 3 For the following reasons the prospective applicants are granted leave under rules 10.42 and 10.43 of the Rules to serve the originating application and accompanying material on Google in accordance with the Hague Convention but at this stage, and in the absence of evidence, the application for substituted service by email is refused. Should the prospective applicants wish to bring a further application for substituted service supported by appropriate evidence they are not precluded from doing so.

BACKGROUND 4 The background is set out in the affidavits of Mr and Ms Kandola. In essence they are seeking information in respect of the description or identity of the authors of three negative reviews of Unicorn's business published on the internet. Two of the reviews were posted on Google's website and one was published on the Yellow Pages website, which is operated by the second prospective respondent. The reviews are in evidence before me. The prospective applicants contend that the reviews are defamatory of Unicorn and of each of them individually and have negatively impacted their respective reputations and have caused the prospective applicants to suffer mental anguish. 5 The reviewers on the Google site were identified as "Frank H" and "John S". The prospective applicants have taken reasonable steps to obtain details of the identities of the authors without success and now seek to obtain that information by way of the present application. In a reply dated 18 December 2020, to an email from Ms Kandola, Google said that in order for those outside of the United States to obtain information on how to serve Google with a valid legal process concerning the provision of identifying information about anonymous posters an email should be directed to a specified google email address. The prospective applicants seek an order for substituted service by email to that specified address but as yet have not sought to obtain information concerning service by emailing that address. Similarly, the prospective applicants have not sought to use that email address to ascertain whether Google will accept service by email.

Leave to serve out 6 In Lin v Google LLC [2021] FCA 1113, Wigney J set out the principles applicable in the present context when considering a similar application for service outside Australia in proceedings involving a preliminary discovery application against Google with a view to a potential future defamation action in respect of anonymised negative business reviews (at [11]-[12]): 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). 7 In the present application, I am satisfied that the relevant requirements are satisfied and that leave to serve outside the jurisdiction should be granted. 8 First, this 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 I acknowledge, as did Wigney J in Lin, that none of the types of proceedings listed in the table in r 10.42 precisely align with an application for preliminary discovery, I am satisfied that in this case the application for preliminary discovery "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 the claim to be entitled to preliminary discovery is based, at least in part, on the fact that the prospective applicants may have a right to obtain relief, including damages, from someone else (the prospective respondent) for defamation": Lin at [14] - [15]. In addition, I agree that the application is within the description of item 1 of the table for the reasons identified by Wigney J in Lin at [16]. 9 Secondly, the application can be served in the United States in accordance with the Hague Convention or a law of the United States under r 10.43(2): Lin at [17] - [18]. 10 Thirdly, the application is accompanied by the necessary supporting affidavits, including details of the country where Google is to be served and the proposed method of service. 11 Fourthly, the Court has jurisdiction in the proceedings consistent with r 10.43(4)(a) of the Rules: Lin at [20], citing Kabbabe v Google LLC [2020] FCA 126 at [10]; Allison v Google LLC [2021] FCA 186 at [6]; Kukulka v Google LLC [2020] FCA 1229 at [19]; Seven Consulting Pty Ltd v Google LLC [2021] FCA 203 at [15]; Sydney Criminal Lawyers v Google LLC [2021] FCA 297 at [15]. 12 Finally, the prospective applicants have established a prima facie case for preliminary discovery pursuant to r 7.22 in the proceedings under r 10.43(4)(c) of the Rules. I respectfully adopt the analysis of Wigney J in Lin at [23] as to what the prospective applicants must establish in the context of a preliminary discovery application made with a view to potential defamation proceedings concerning an anonymised review posted to the internet: 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]. 13 The prospective applicants have demonstrated that there may be a right for them to obtain relief against the prospective respondents, being the anonymised reviewers who posted to the Google site. They have an arguable case in respect of the reviews being defamatory of each of them personally. 14 They have also established that they are unable to ascertain the description or identity of the prospective respondents, having made reasonable attempts to do so, and that Google, either knows or is likely to know, 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 respondents' descriptions in respect of the two reviews published on the Google website. As to the latter proposition, I am satisfied that Google is likely to have the ability to control or interrogate its Google pages, including the relevant page on which the impugned reviews were published, and the historical data associated with those pages, to assist the prospective applicants in identifying the persons who posted the impugned reviews: see Lin at [29]. 15 I am satisfied that the prospective applicants have a prima facie case in respect of each of the three elements required in order to obtain an order for preliminary discovery. 16 For the reasons identified by Wigney J in Lin at [25], I am similarly satisfied that the prospective applicants have established that this Court may have jurisdiction to entertain a potential future action for defamation against the as yet unidentified reviewers, but if such proceedings are commenced in this Court, it will be necessary for them in due course to demonstrate that the relevant reviews were downloaded or read by someone in the Australian Capital Territory or the Northern Territory in order to attract the jurisdiction of this Court. For the purpose of this application, I am satisfied that it is likely that the prospective applicants will be able to demonstrate that the reviews were accessed, downloaded or read in the Northern Territory or the Australian Capital Territory. The evidence suggests that the reviews remained on the relevant Google page as at the date of the prospective applicants' affidavits. It is therefore likely that the prospective applicants will be able to obtain evidence of the reviews being accessed, downloaded or read in the Northern Territory or the Australian Capital Territory if they seek to institute proceedings in this Court. As to the issue of whether or not this Court would be an appropriate court to commence any future defamation proceedings is a matter for another day. 17 In all the circumstances, I am satisfied that the prospective applicants should be given leave to serve Google in the United States. In accordance with the Hague Convention, the proposed mode of service is by international registered post.

Substituted Service 18 There is no evidence to support the application for substituted service by email. The prospective applicants submit that given the current global COVID-19 pandemic and the delays affecting postal services, email communication would be a more expedient method of service. It is also submitted that substituted service should be ordered in circumstances where the prospective applicants are concerned that the relevant limitation period in respect of a defamation claim against the persons who caused the reviews to be posted to the Google site may expire in December 2021. 19 Having regard to the lack of any attempt by the prospective applicants to seek information from Google at the email address specified in Google's December 2020 correspondence, I am not satisfied that it is appropriate to make an order for substituted service at this time. If the prospective applicants correspond with Google at that email address and wish to bring a further application for substituted service supported by appropriate evidence, they may do so. 20 For present purposes, leave to serve is granted and service is to be effected by international registered post. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.