Should leave to serve Google Inc outside Australia be given?
42 Mr Rana applied by interlocutory application of 21 August 2012 for leave to serve the originating application outside Australia, namely, on Google Inc which is situated in the United States.
43 At common law, a court has jurisdiction only over:
(i) persons physically present within the jurisdiction at the time the initiating process is issued; or
(ii) persons who, by their actions, have submitted to the jurisdiction of the Court.
44 Valid service of an originating process outside Australia requires the authority of a statute or rules of court pursuant to statute: John Pfieffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 517. Rule 10.43 provides that an applicant who seeks to serve a party outside of Australia must apply for leave to do so. In making such an application, the applicant must satisfy the Court that:
(a) the Court has jurisdiction in the proceeding; and
(b) the proceeding is of a kind mentioned in rule 10.42; and
(c) the party has a prima facie case for all or any of the relief claimed in the proceeding: r 10.43(4).
45 Rule 10.42 sets out the circumstances in which an originating application may be served outside Australia. Of the list provided in that rule, items 4 and 5 are potentially relevant, namely "Proceeding based on a tort committed in Australia" and/or "Proceeding based on, or seeking the recovery of, damage suffered wholly or partly in Australia caused by a tortious act or omission (wherever occurring)." Publication of a defamatory statement takes place where the words are heard or read: Berezovsky v Michaels [2000] 2 All ER 986. Defamatory material placed on the internet in a place outside Australia is considered to be published in Australia if downloaded in Australia: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575. "Damage" for the purpose of r 10.42 Item 5 means the disadvantage or detriment suffered by the applicant as a result of the tortious act or omission of the respondent: Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (1990) 25 NSWLR 568.
46 For the purposes of establishing that a prima facie case exists for the purposes of 10.43(4)(c), a controversy must be shown to exist that warrants the use of the Court's processes to resolve it and that justifies the involvement of the foreign respondent: Suzlon Energy Ltd v Bangad (No 3) [2012] FCA 123. The degree of satisfaction required to establish the existence of a prima facie case is the same as that required in an ordinary application for summary judgment: Agar v Hyde (2000) 201 CLR 552.
47 Mr Rana's complaint against Google Inc for disability and/or race discrimination has no prospect of success. After considering in detail Mr Rana's originating application as amended, his statement of claim, his various affidavits and his submissions, it is not clear to me what is the nature of Mr Rana's complaint of discrimination.
48 Mr Rana asserts that the failure of Google Inc to remove what he describes as the defamatory material amounted to discrimination on the basis of race and/or disability. There is no evidence to support Mr Rana's claim that he was treated less favourably or suffered indirect discrimination by Google Inc on the basis of his race or disability, that Mr Rana was harassed or victimised by Google Inc, or that Google Inc published advertising or notices expressing an intention by the respondents to commit a contravention of the Disability Discrimination Act 1992 (Cth) or Racial Discrimination Act 1975 (Cth), or that Google Inc did anything to offend, insult, humiliate or intimidate Mr Rana on the basis of his ethnicity. There is nothing to suggest that the failure to take down the website material was in any way connected to Mr Rana's ethnicity or alleged disability. As will be discussed below, there is very little evidence at all about the nature of Mr Rana's complaint to Google Inc nor its replies. Taking Mr Rana's evidence at its highest, his claims of discrimination have no reasonable prospect of success against Google Inc.
49 The second question is whether Mr Rana's claim of defamation against Google Inc has no reasonable prospects of success. That question involves consideration of whether Google Inc could be considered the publisher of the information, whether the defence of innocent dissemination would apply such that Mr Rana's claim has no reasonable prospects of success, and whether the website material is defamatory.
50 I do not consider that it is appropriate on a "service overseas" application to decide that Google Inc is not the publisher of the defamatory material. Put shortly, the law in this regard is not settled: Duffy v Google Inc [2011] SADC 178, [29] - [31].
51 At a general level, the failure to remove another's defamatory material from property within a respondent's control can in some circumstances make the respondent responsible for the publication of the material: Byrne v Deane [1937] 1 KB 818. The complainant, however, must establish that the respondent "consented to, or approved of, or adopted, or promoted, or in some way ratified, the continued presence of that statement so that persons other than the complainant may continue to read it - in other words, the complainant must establish in one way or another an acceptance by the respondent of some responsibility for the continued publication of that statement": Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports ¶ 81-127, 69,193 per Hunt J. Hunt J continued at 69,194:
The law of defamation … has never required 'a conscious intent to induce the public or any individual to read the alleged libels' …
The proposition that conduct of a passive nature cannot amount to publication … was decisively rejected in Byrne v Deane … . Greene LJ said he was quite unable to accept any such proposition. Nor am I. …
There will, of course, always be issues (which will usually be for the jury to determine) as to whether the defendant had the ability to remove the defamatory statement and whether the time given before the commencement of the action was a reasonable one in which to do so. …
It is clear from all of those authorities that the facts upon which the plaintiff relies here - notice of the existence of the defamatory statement, an ability to remove it [or in the present case block it] and the failure to comply within a reasonable period with a request to do so - may, if accepted by the jury (in particular, whether the period given was reasonable in the circumstances), give rise to the required inference that the defendant had in fact accepted a responsibility for the continued publication …
52 In the context of search engines, in Metropolitan International Schools Ltd v Designtechnica Corporation [2009] EWHC 1765 (QB), Eady J of the High Court of England and Wales (Queen's Bench division) held that Google Inc could not be liable for defamatory material found as the result of a search produced by its search engines. Eady J considered at [50]:
When a search is carried out by a web user via the Google search engine it is clear… that there is no human input from the Third Defendant. None of its officers or employees takes any part in the search. It is performed automatically in accordance with computer programmes.
53 The question of whether Google Inc could be liable if it had been made aware of the content was, however, not determined in that case as Google Inc had taken steps to block the identified URLs.
54 The outstanding question of liability on notice was addressed three years later, again by Eady J, in Tamiz v Google Inc and Google UK Ltd [2012] EWHC 449 (QB) where the Court found that Google Inc, as owner of the blog site Blogger.com, was not liable for the defamatory comments made by commentators on a blog created using Blogger's web publishing tools, because the role that it played as a platform provider was purely passive. In that case, suggestion had been made by a blogger that the applicant was a drug dealer and involved in criminal activity. The applicant requested Google Inc as the host of the blogs to remove the material, but it refused. Eady J drew the following analogy at [38]:
It is no doubt often true that the owner of a wall which has been festooned, overnight, with defamatory graffiti could acquire scaffolding and have it all deleted with white wash. That is not necessarily to say, however, that the unfortunate owner must, unless and until this has been accomplished, be classified as a publisher.
55 In another case, Davison v Habeeb [2011] EWHC 3031 (QB), decided within a few months of Tamiz, the Court placed a greater emphasis on notification, stating it was at least arguable that if Blogger had been notified of the defamatory comments, it could be liable for the continued publication of the material complained of on the principle of consent or acquiescence articulated in Byrne v Deane [1937] 1 KB 818, 838: [47].
56 In Victoria, by way of contrast, Beach J considered in Trkulja v Google Inc LLC (No 5) [2012] VSC 533 that the jury was entitled to conclude that Google Inc intended to publish the material that its automated system produced, because that was what the search engines were designed to do upon a search request being typed into one of Google Inc's search products. Beach J drew an analogy with a newsagent selling a newspaper with defamatory content. Beach J considered that in Tamiz Eady J had not given consideration to the fact that internet search engines, while operating in an automated fashion from the moment a request is typed into them, operate precisely as intended by those who own them and who provide their services, and that unlike in Tamiz, Google Inc had not taken steps to block the identified URLs: at [27]. Beach J explains at [28]:
To say as a general principle that if an entity's role is a passive one then it cannot be a publisher, would cut across principles which have formed the basis for liability in the newsagent/library type cases and also in those cases where someone with the power to remove a defamatory publication chooses not to do so in circumstances where an inference of consent can be drawn.
57 Going further, Beach J considered that "[i]t was open to the jury to conclude that when the email of 10 October 2009 was written Google Inc was aware of the defamatory material which gave rise to the images matter": [36]. Similarly, Beach J considered that the jury was entitled to find that the defence of innocent dissemination was not made out: at [39].
58 In short, whether or not a search engine could be considered a publisher of defamatory material is not settled in Australia, and accordingly, it would not be appropriate to refuse to give leave to serve the proceedings and on that basis effectively dismiss Mr Rana's claim against Google Inc: A v Google New Zealand Ltd [2012] NZHC 2352, [69].
59 Section 30 of the Defamation Act 2005 (SA) provides:
(1) It is a defence to the publication of defamatory matter if the defendant proves that -
(a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; and
(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and
(c) the defendant's lack of knowledge was not due to any negligence on the part of the defendant.
(2) For the purposes of subsection (1), a person is a subordinate distributor of defamatory matter if the person -
(a) was not the first or primary distributor of the matter; and
(b) was not the author or originator of the matter; and
(c) did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.
(3) Without limiting subsection (2)(a), a person is not the first or primary distributor of matter merely because the person was involved in the publication of the matter in the capacity of -
(a) a bookseller, newsagent or news-vendor; or
(b) a librarian; or
(c) a wholesaler or retailer of the matter; or
(d) a provider of postal or similar services by means of which the matter is published; or
(e) a broadcaster of a live programme (whether on television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter; or
(f) a provider of services consisting of -
(i) the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded; or
(ii) the operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form; or
(g) an operator of, or a provider of access to, a communications system by means of which the matter is transmitted, or made available, by another person over whom the operator or provider has no effective control; or
(h) a person who, on the instructions or at the direction of another person, prints or produces, reprints or reproduces or distributes the matter for or on behalf of that other person.
60 The defence of innocent dissemination at common law was available to persons selling a book or newspaper, containing defamatory matter, if he or she did not know, and ought to have known, that the book or newspaper contained or was likely to contain defamatory matter: McPhersons Ltd v Hickie (1995) Aust Torts Reports ¶81-348. So, for example, in Thompson v Australian Capital Television Pty Ltd (1997) Aust Torts Reports ¶81-412, the High Court upheld the Full Federal Court's findings that the defence of innocent dissemination was not available to Channel 7, on the publication of an interview of a women who falsely claimed that her stepfather had committed incest with her from an early age, and that she had a child to him when she was 14 years old. The television station was not merely a conduit for the program, but authorised the broadcast itself. The defence of innocent dissemination based as it is on the want of knowledge is of no application to one who authorises the publication in question: at 595.
61 The defence is not available where publication continues after notice of the defamatory material is given: Vizetelly v Mudie's Select Library Ltd [1900] 2 QB 170.
62 Again, judicial consideration of the defence as it might apply to search engines is limited.
63 In Trkulja v Google Inc LLC (No 5) [2012] VSC 533, Beach J considered at [39] that it was open to the jury to find that the defence of innocent dissemination was not available to Google Inc, for the same reasons it was open to the jury to find that Google Inc could be liable as a publisher of the defamatory material; namely that the search engine operates precisely as intended by those who own it and who provide its services.
64 In the present case, it is not clear when Google Inc was made aware of the material. In an email from "The Google Team" to a representative of the Australian Human Rights Commission, Google Inc advised that they had not received any removal requests regarding the four sites of which Mr Rana complained (see [9]-[10] above). By email of 6 March 2012, Google Inc advised that as "it remains unclear as to the legal grounds under which Mr Rana is making his request to the [AHRC]… we do not consider we would be able to resolve the complaint in the complainant's favour".
65 It is not clear when, if at all, Google Inc was advised of the other four websites, not the subject of the AHRC complaint.
66 The test for whether the statements are defamatory involves two steps: (1) what is the meaning of the words used; and (2) is the meaning of the words defamatory.
67 I have set out in some detail above some of the statements made by the Gregurevs. They include:
that Mr Rana wished to access Nina Gregurev's academic record;
that Mr Rana's mother had attempted suicide;
that Mr Rana is an alcoholic with brain damage;
that Mr Rana has (genetic) personality problems;
that Mr Rana is a continual bankrupt;
that Mr Rana receives extortion money, which he sends to "lovely Russian 'girls' - 'a loving fiancee'"
that Mr Rana is a cyberstalker;
that Mr Rana has used Nina Gregurev's email address to create a false Facebook account;
that Mr Rana sends emails out in other people's names and has done so for at least 15 years;
that Mr Rana's daughter has said to Mr Rana to "get a job you lazy bum".
68 This is not a complete list.
69 The meaning of the words is to be determined by the sense in which fair-minded ordinary reasonable persons in the general community would understand the published words. The meaning will be defamatory if the effect of the publication has the tendency to injure the reputation of the plaintiff; that is, when the esteem in which that person is held by the community is diminished in some respect: Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at [3].
70 The form of publication will affect the interpretation to be given. In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165-6, the Court considered:
The reader of a written document has the opportunity to consider or re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed… [T]he reader of a book… is assumed to read it with more care than they would read a newspaper. The more sensational the article in a newspaper, the less likely it is that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book, and the less the degree of accuracy which would be expected by the reader.
71 The consideration of online bulletin boards in Smith v ADVFN Plc [2008] EWHC 1797 (QB) was in a similar vein at [14] to [17]:
14. This has been explained in the material before me and is, in any event, nowadays a matter of general knowledge. Particular characteristics which I should have in mind are that they are read by relatively few people, most of whom will share an interest in the subject-matter; they are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or "give and take".
15. The participants in these exchanges were mostly using pseudonyms (or "avatars"), so that their identities will often not be known to others. This is no doubt a disinhibiting factor affecting what people are prepared to say in this special environment.
16. When considered in the context of defamation law, therefore, communications of this kind are much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual, more permanent kind of communications found in libel actions. People do not often take a "thread" and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it.
17. It is this analogy with slander which led me in my ruling of 12 May to refer to "mere vulgar abuse", which used to be discussed quite often in the heyday of slander actions. It is not so much a defence that is unique to slander as an aspect of interpreting the meaning of words. From the context of casual conversations, one can often tell that a remark is not to be taken literally or seriously and is rather to be construed merely as abuse. That is less common in the case of more permanent written communication, although it is by no means unknown. But in the case of a bulletin board thread it is often obvious to casual observers that people are just saying the first thing that comes into their heads and reacting in the heat of the moment. The remarks are often not intended, or to be taken, as serious. A number of examples will emerge in the course of my judgment.
72 The apparent exclusion of "vulgar abuse" is explained in Fleming's The Law of Torts (2011, 10th ed) as based on the rationale that "vituperative epithets are frequently insulting to pride rather than disparaging reputation"; although much depends on the manner and surrounding circumstances. The rationale for this is clearly related to that of the defence of triviality, discussed below.
73 Section 31 of the Defamation Act 2005 (SA) provides:
It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
74 Malice will not defeat the defence of triviality: see Lang v Willis (1934) 52 CLR 637, 683 per McTiernan J.
75 In Chappell v Mirror Newspapers Ltd (1984) Aus Torts Reports ¶80-691, Moffit P explained that the plaintiff's reputation is not a circumstances of the publication that will bring the defence of triviality into operation, nor whether the plaintiff had actually suffered harm. He states:
In construing the words 'the circumstances of the publication', it is important that full force be given to the words "of the publication". There should not be substituted a mere inquiry whether "in all the circumstances" the plaintiff will probably not suffer harm…
"The circumstances of the publication" must admit some context, but that context must be such as will serve to define the circumstances of the publication and their relevant operation in relation to the likelihood of harm. There cannot be admitted under their umbrella circumstances which are not related to the publication.
76 The types of circumstances of publication where a triviality defence might be established was discussed in Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800 as follows:
It would be particularly applicable to publications of limited extent, as, for example, where a slightly defamatory statement is made in jocular circumstances to a few people in a private home. It may be that the knowledge of the plaintiff's reputation by the persons to whom the publication is made in such a case, and their acceptance of that reputation as truly reflecting the plaintiff's character, can be taken into account in deciding whether the plaintiff is likely to suffer harm… but it is difficult to apply these considerations where the publication is to a vast number of unknown people whose knowledge of the plaintiff's reputation, and their acceptance of that reputation as justified, is equally unknown.
77 That is not to exclude the defence for material that is published to a wider audience. In Lang v Willis (1934) 52 CLR 637, Rich J (with Evatt J concurring) considered that the jury was entitled to find for the defendant, a Labor politician who had made offensive remarks during a public election meeting, on the basis of triviality, given "[the audience's] knowledge of local elections and policies and their understanding of the manner in which speeches at elections are received by bystanders": at 651.
78 Arguably, a blog might be considered circumstances in which the content shared would not be viewed seriously. In Prefumo v Bradley [2011] WASC 251, Corboy J remarked:
Emails, SMS messaging, Twitter, blogs and other forms of social media such as Facebook impact on the way people communicate and the language they use. Communications through those media often lack the formality and careful consideration that was once thought to mark the difference between the written and spoken word. The very purpose of the media is to enable people to communicate instantaneously, often in a language that is blunt in its message and attenuated in its form. That will affect both what is regarded as defamatory and the potential for harm: see, for example, Smith v ADVFN Plc [2008] EWHC 1797 (QB) in which Eady J drew an analogy between material posted on an internet bulletin board and the law relating to vulgar abuse.
79 The result of those considerations is that I am in some doubt whether Mr Rana has a prima facie case for the relief claimed against Google Inc by reason of the asserted defamation. It appears to be arguable that Google Inc may be liable for the allegedly defamatory material published by Darda Gregurev on the four websites referred to, at least in certain circumstances.
80 At present, I do not propose to grant leave to serve the proceedings overseas against Google Inc. There are several reasons for that.
81 The first is the expression of the Amended Application and the Amended Statement of Claim. It is too discursive. In my view, at least in respect of Google Inc, it does not satisfactorily comply with Rules 8.03 and 8.05. As the claim is for damages, it must be accompanied by a statement of claim: Rule 8.05(a). For the purposes of this ruling, the relevant document is the Amended Statement of Claim dated 16 August 2012. Rule 16.02 deals with the content of pleadings. The Amended Statement of Claim does not satisfy those requirements. It is discursive and argumentative. It is not readily apparent what are the material facts alleged against Google Inc, so that - if the proceeding is served - that party will know what case it has to meet. It is open-ended (para 15). It does not clearly identify any conduct of Google Inc other than the provision of the platforms for the use of Darda Gregurev (or others). It does not identify the alleged defamatory allegations (see para 10, last appearing "… and much more"). It does not consist of sequentially numbered paragraphs. At present, it makes allegations concerning discrimination by Google Inc which I do not consider are sustainable. Also at present, it treats Google Australia and Google Inc together, but I have ruled that the claim against Google Australia is dismissed. It is then not clear enough what is alleged against Google Inc only. There are other flaws: the above is a reference to some of the more obvious ones.
82 Secondly, I would not presently grant leave to serve those documents overseas without imposing on Mr Rana a condition that he pay into Court a sum of money as security for the costs of Google Inc in responding initially to the claim. At present, I am minded to fix a sum of $8000. Google Inc will necessarily incur significant costs in instructing solicitors in relation to the claim, if it is served, and responding to it. Mr Rana has not specified with any clarity the extent of the damages he claims. I have, as indicated above, some caution about the merits of his claim against Google Inc both in relation to the primary claim and in relation to the possible defences to it. Rules 1.31 to 1.33 empower the Court to have regard to such considerations, and to impose conditions as it considers appropriate, on any orders it may make.
83 At present, I indicate that I would refuse leave to serve the Amended Application and the Amended Statement of Claim on Google Inc overseas. I will not formally make that order.
84 I will give leave to Mr Rana to file and serve a further amended statement of claim within 28 days of the date of these reasons and orders to take account of the above matters. I will therefore list the application for leave to serve the proceedings overseas for further consideration to be dealt with in the manner prescribed when the orders are made and those reasons are published.