Consideration
53 Mr Young's claims against Facebook Australia have no reasonable prospect of success. That is primarily because all the claims are predicated on Facebook Australia having legal responsibility for the conduct the subject of the claims or, alternatively, being the agent of the other two proposed respondents. Subject to one non-determinative qualification which I will describe below in [55], these claims are untenable having regard to Mr Owens' unchallenged evidence which is summarised above.
54 The proceedings are substantially similar to other cases both here in Australia and overseas in which proceedings have been summarily dismissed or struck out in circumstances where action has been taken against a domestic subsidiary of a foreign parent corporation, but where the evidence established that the domestic entity had no legal responsibility for the matters complained of and could not direct or control the foreign parent to secure compliance with any relevant Court orders: see Rana; A v Google New Zealand [2012] NZHC 2352; Tamiz v Google Inc and Google UK Ltd [2012] EWHC 449 and, most recently, Richardson v Facebook [2015] EWHC 49 (Richardson). Obviously, each case must be viewed in the light of its own evidence and the specifically pleaded claims. That is the approach I have taken here.
55 On one level it is perhaps understandable that Mr Young says that the materials in Exhibit A led him to believe that when he signed up as a Facebook user, he was signing up with an Australian-based company. He pointed to an article which appeared in The Australian newspaper which described how Facebook was one of the "biggest brands in Australia but few know of the small but growing team that has operated from Sydney since 2009". The article described how Facebook had a total of more than 6000 staff globally but fewer than 100 across its Sydney and Melbourne offices. The article referred to Facebook staff in Australian primarily performing "a range of sales, marketing, technical support, policy and data job functions".
56 Mr Young also relied on various Facebook HQ pages which gave Facebook Australia's Sydney address, as well as photographs of communications infrastructure being installed in the Sydney office. Another screenshot made reference to Facebook Australia and its Sydney office having been founded in Sydney in 2008 and the Melbourne office in 2009. It included a statement that: "We service brand advertisers needs throughout all of Australia."
57 A website address was provided on the Facebook HQ page which finished with the initials "au", which Mr Young submitted conveyed an Australian connection.
58 Mr Young also relied on an article in a publication called "Social Times" dated 5 May 2009, which described how Facebook was "building a sales team to run its new Australian headquarters in Sydney". The article quoted the head of the team (Mr Paul Borrud) commenting on plans to "generate advertising revenue from Australian agencies and advertisers by engagement ads (to the right of the Home page) and performance ads (to the right of user profiles)".
59 There are other similar kinds of materials which Mr Young relied on in support of his claims that he had been misled or deceived into thinking that he was signing up with an Australian-based and registered Facebook company.
60 There are three insurmountable obstacles to Mr Young succeeding in his claims against Facebook Australia. First, there is Mr Owens' unchallenged evidence to the effect that Facebook Australia does not own, control or host the Facebook Services. That evidence brings this case squarely within the territory covered by earlier cases such as Rana and Richardson. None of the materials in Exhibit A undermines the truthfulness of Mr Owens' evidence. The various references in that material to Facebook Australia having some role with advertising on Facebook are not inconsistent with Mr Owens' evidence, however, the details of the arrangements between Facebook Australia and overseas Facebook companies remain unclear. Mr Lewis repeatedly emphasised the limits of his instructions. When asked whether he could clarify the nature of Facebook Australia's role in obtaining advertising for Facebook, Mr Lewis said that he did not know from his instructions whether or not Facebook Australia "is actually engaging in advertising", that he was not instructed that the company did engage in advertising and that there was no evidence to specifically tie Facebook Australia to contracting on behalf of either Facebook Ireland or Facebook Inc.
61 In response to the Court's questions regarding Facebook Australia's role in facilitating advertising on Facebook pages, Mr Lewis described the "bottom line" of Facebook Australia's position as follows:
Facebook Australia doesn't control anything to do with the Facebook Service. Of that, there is unchallenged evidence. It has no authority to enter into any contract on behalf of its parent in the States or of part of Ireland. There is evidence before the court that even if an order is made to direct it to do something, in respect of the Facebook service, or to reinstate the applicant as administrator, if ever that happened in the future, he (sic) would be unable to comply with it. That, in my respectful submission, is the specific question that the court is concerned with and we would commend the decision of Warby J in Richardson v Facebook.
62 On the basis of the evidence before the Court, this submission should be accepted.
63 Secondly, that part of the proposed amended statement of claim relating to misleading or deceptive conduct in selling, promoting, placing and using advertising on Facebook's Services is based in part on the claim that Mr Young's permission was not sought for advertising to be run on the Common Cause Facebook page. However, no such permission was required because, under cl 9 of the SRR, it was expressly stated that the user gave permission for their "name, profile picture, content, and information in connection with commercial, sponsored, or related content…served or enhanced" by, relevantly, Facebook Ireland. It was further stated in the SRR that this included the user permitting a business or other entity to pay Facebook to display the users' name and/or profile picture with the user's content or information, without any compensation to the user.
64 Thirdly, as noted above, cl 18.1 of the SRR made explicitly clear that a Facebook user who is a resident or has their principal place of business outside the USA or Canada is entering into an agreement with Facebook Ireland and that the SRR was to be read accordingly. There is no express reference to Facebook Australia in the SRR.
65 It is not disputed that Mr Young signed up to the SRR. Even though Mr Young maintained from the Bar table that he did not read all the sign-up documentation because he found it to be too lengthy and confusing, under Australian law where a person signs a document which is intended to affect legal relations and the person knows that the document contains contractual terms (and there is no vitiating element such as misrepresentation, duress or mistake), the person is bound by those terms and it is immaterial that the person has not read the document (see Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165). The same principle should apply where a person such as Mr Young "signs up" on the internet to an agreement like the SSR.
66 Mr Young's other claims against Facebook Australia are also doomed to fail in circumstances where Mr Owens' evidence establishes that Facebook Australia does not own, control or operate the Facebook Services and has no authority to enter into agreements on behalf of those companies. As will be developed shortly those claims also lack reasonable prospects for other reasons.
67 For the reasons given above, the claims made against Facebook Australia in the proposed amended statement of claim do not have reasonable prospects. The originating application (and the proposed associated pleading) should be summarily dismissed.
68 Against that background I will now consider the position concerning the proposed second and third respondents in the context of Mr Young's interlocutory application which seeks leave to serve the originating application and the proposed amended statement of claim on those parties outside the jurisdiction.
69 Mr Young acknowledged that it was a precondition to him obtaining such leave that he demonstrate to the Court's satisfaction that he has a prima facie case for all or any of the relief sought against those proposed respondents (see rr 10.42 and 10.43 of the FCRs and the discussion of the relevant principles in Rana at [42]-[46] and Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2013] FCA 120).
70 For the following reasons, I am not satisfied that Mr Young has discharged his burden of establishing that he has a prima facie case.
71 First, Mr Young's claims of misleading or deceptive conduct and/or unconscionability (noting that Mr Young accepted that the claims substantially overlap) are inconsistent with the contractual rights conferred upon Facebook Ireland and the contractual obligations which Mr Young accepted under the SRR (see Coles Supermarkets Australia Pty Ltd v FKP Limited [2008] FCA 1915 at [67]-[69] per Gordon J and Mander Forklift Pty Ltd v Dairy Famers Co-Operative (1990) ATPR 46-061). In particular:
(a) it was made explicitly clear in cl 18.1 that the other party to the SRR was Facebook Ireland;
(b) there were express provisions in the SRR which permitted Facebook Ireland to place advertising on Mr Young's Facebook page without further consent from him;
(c) there were also express provisions which in the SRR entitled Facebook Ireland to stop providing all or part of the Facebook Services to a user (see cl 14 above). In any event, as noted above, Mr Young was reinstated as administrator of the Common Cause Facebook page after he complied with the requirements concerning identification. Nothing in his proposed pleading raises any prima facie case of misleading or deceptive conduct and/or unconscionability in relation to the application of those requirements or the action which was ultimately taken to reinstate him; and
(d) the significant obscurity and deficiencies in the proposed amended statement of claim do not permit a finding that Mr Young has a prima facie case of misleading or deceptive conduct (or unconscionability) in respect of the requirement in cl 4 of the SRR that Facebook users provide their real names and personal information.
72 As noted above, Mr Young's proposed pleading concerning unconscionability focused primarily on the events surrounding his removal and reinstatement as administrator. There is no reference to s 20 of the ACL in the proposed pleading and the reader is led to believe that Mr Young relies upon unconscionability as part of the common law or equitable principles recognised in cases such as Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447. In that context, it is difficult to understand the relevance of the reliance which Mr Young placed in oral address on other provisions in the ACL, such as ss 21 and 22.
73 In my view, Mr Young has no prima facie case in respect of his claims of unconscionability. Not only does he face the obstacles of the relevant express provisions in the SRR which authorised the conduct of which he complains, but his proposed pleading identifies no special disability on his part so as to attract the relevant principles of unconscionability. As presented by him, Mr Young's complaint is that the relevant conduct was not fair or just, but that is insufficient to meet the high level of moral obloquy which is an essential element of the cause of action (see ACCC v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51).
74 In oral address, Mr Young said that he also relied on various provisions in Pt 2-3 of the ACL, which concern unfair contract terms. However, for the purposes of determining whether or not Mr Young has established that he has a prima facie case, it is notable that the proposed amended statement of claim contains no pleading in respect of alleged unfair contract terms. Accordingly, the statutory provisions in Pt 2-3 have no relevance to the case as proposed to be pleaded by Mr Young.
75 Secondly, there is no prima facie case concerning the proposed cause of action based on the implied Constitutional right of political communication. That is because the "right" is not a personal right in the manner pleaded in the proposed amended statement of claim. The implied right is not a "personal right" as contended by Mr Young, but rather is properly viewed as being in the nature of an immunity from legislative or executive action which impairs the exercise of the right or freedom to communicate on political or government matters. The implied Constitutional right does not carry with it a cause of action against private or corporate entities which are not part of the legislative or executive branches of government but which engage in conduct which impairs the freedom of communication.
76 The scope of the freedom of communication concerning political or government matters which is protected by the Constitution is clearly identified in the following passage from Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 (Lange) at 560 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ (footnotes omitted):
That being so, ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power. As Deane J said in Theophanous, they are "a limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a 'right' in the strict sense". In Cunliffe v The Commonwealth, Brennan J pointed out that the freedom confers no rights on individuals and, to the extent that the freedom rests upon implication, that implication defines the nature and extent of the freedom. His Honour said:
"The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control."
77 See also James v Commonwealth [1939] HCA 9; (1939) 62 CLR 339 at 361-362; Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 46, 93, 124-126 and 147-148; Unions NSW v State of New South Wales [2013] HCA 58; (2013) 252 CLR 530 at [36] and Tajjour v New South Wales [2014] HCA 35 at [33], [104] and [198].
78 The implied constitutional right may create a separate cause of action in an individual if the legislative or executive action produces change to existing law, as was the case in Lange. The proposed amended statement of claim here contains no allegation which would attract this aspect of Lange. Mr Young's contention that he has a personal right arising from the implied Constitutional limitation which gives rise to its own cause of action for damages fundamentally misconceives the nature of the relevant Constitutional right or limitation.
79 For completeness, it might also be noted that Mr Young failed to give notice of this aspect of his claims, including in respect of Facebook Australia, as required by s 78B of the Judiciary Act 1903 (Cth). That omission does not prevent the consideration and determination of the interlocutory applications in circumstances where the Mr Young's Constitutional law claims are fundamentally misconceived such that the terms of s 78B are not engaged (see Nicolic v MGICA Ltd [1999] FCA 849 and Sagacious Legal Pty Ltd v Westfarmers General Insurance Ltd (No 3) [2010] FCA 428; (2010) 184 FCR 516 at [14]).
80 Thirdly, any claim in negligence (which, as previously mentioned, is only referred to in passing in the proposed amended statement of claim and is not developed or properly pleaded), amounts to nothing more than a bald assertion by Mr Young. The proposed pleading does not address any of the essential elements of that cause of action. No prima facie case is established.
81 Finally, although there are numerous references to "passing off" in the proposed amended statement of claim, Mr Young confirmed that that phraseology was another way of describing the conduct which is the subject of his claims of misleading or deceptive conduct and/or unconscionability and that no separate cause of action was suggested. Accordingly, the reasoning given above in relation to those causes of action applies.