A Step Forward in Defamation Law

by Monique Fisher.

Since the inception of online reviewing platforms such as Google, keyboard warriors have had the ability to leave (sometimes scathing) reviews of businesses and products whilst hiding behind anonymous accounts. Although the option to have your personal information concealed whilst leaving feedback can promote honest criticism and positive accountability, it has also become an avenue for individuals to leave misleading or defamatory comments with no repercussions. 

Of course, as reputation is everything, false negative feedback from undisclosed consumers can be extremely detrimental to small or local businesses. However, recent considerations earlier this year in a couple of cases regarding online reviewing illustrate a sign of things to come regarding online defamation in Australia. 

In the case of Kabbabe v Google LLC [2020] FCA 126, a Melbourne based Dentist, received a defamatory review from an undisclosed source which caused detriment to his business. After unsuccessfully asking Google to remove the post, he requested that Google provide the reviewers contact details to pursue a case of defamation against them. The dentist applied to the Federal Court to require Google to reveal this information. The Judge then considered whether Google, as an American company, could be served in accordance with an international treaty known as the Hague Convention. Such an action would previously require a drawn-out process taking several months because of obligations to lodge and process the documentation in two countries. However, the Dentists’ lawyer found a loophole in the Convention which meant that the originating documents could be sent to Google by international registered post, and in effect, dramatically shorten the entire process. As a result, the court gave leave to the Dentist to serve Google with the originating application seeking a preliminary discovery outside of Australia. 

Further, in Prasad v Google LLC [2020] FCA 67 earlier this year, the Federal Court again considered an application for preliminary discovery against Google relating to a Gmail user who had made potentially defamatory comments.  

Whilst the Federal Court has did not make orders for preliminary discovery against Google in either of these decisions, they recognised that both plaintiffs had prima facie cases with respect to alleged defamatory reviewers’ identities and could seek action. This determination by the Courts has brought us a step closer to the possibility of unveiling anonymous users via tech companies in the future giving us a taste of what is to come.

You can read more about both of these cases via the links below:

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0126

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0067