FEDERAL COURT OF AUSTRALIA
B&P Group Pty Ltd v Google LLC (No 2) [2022] FCA 958
File number: VID 183 of 2022 Judgment of: ANDERSON J Date of judgment: 18 August 2022 Catchwords: PRACTICE AND PROCEDURE – application for preliminary discovery pursuant to r 7.22 of the Federal Court Rules 2011 (Cth) – alleged defamatory comments made online – application granted Legislation: Competition and Consumer Act 2010 (Cth)
Federal Court Rules 2011 (Cth)
Defamation Act2005 (Vic)
Cases cited: B&P Group Pty Ltd v Google LLC [2022] FCA 538
Kabbabe v Google LLC [2020] FCA 126
Division: General Division Registry: Victoria National Practice Area: Other Federal Jurisdiction Number of paragraphs: 20 Date of hearing: Determined on the papers Solicitor for the Prospective Applicant: Madgwicks Lawyers
ORDERS
VID 183 of 2022 BETWEEN: B&P GROUP PTY LTD ACN 619 573 821 (TRADING AS ACCENT ALUMINIUM WINDOWS AND DOORS)
Prospective Applicant
AND: GOOGLE LLC
Prospective Respondent
ORDER MADE BY:
ANDERSON J
DATE OF ORDER:
18 AUGUST 2022
THE COURT ORDERS THAT:
1.Google shall provide to the Prospective Applicant’s solicitors by email at catherine.ballantyne@madgwicks.com.au as soon as is reasonably practicable and in any event within 21 days of having received via certified mail this Order, the following information (to the extent that it is available):
·the subscriber registration information, including their name and address of the Google Account associated with the Google Maps review (the Google Account) as well as the IP addresses of the logins to the Google Account, to the extent that such information or data is in the possession of, and readily available to Google as of the date of this Order.
2.No provision of this order is to be construed as requiring Google to provide to the Prospective Applicant the contents of any email sent to or from the Google Account.
3.The Prospective Applicant acknowledges that Google may inform the owner of the Google Account of this request, in accordance with Google’s usual policies.
4.Google may apply to the Court at any time to vary or discharge this Order, subject to first informing the Prospective Applicant by email.
5.To the extent that the information disclosed pursuant to this Order contains personal information, save for that outlined in order 1 above, the Prospective Applicant will hold such personal information in accordance with all applicable privacy laws and ensure only proportionate and appropriate use of such data.
6.There shall be no costs order for or against Google.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ANDERSON J:
The Prospective Applicant in this proceeding (Accent) seeks preliminary discovery from the Prospective Respondent (Google), of subscriber registration information which includes the name and IP address, among other things, of a Google Account (Google Account) which has made an allegedly defamatory Google review under the moniker “Timmy Foreign” (Review).
The…
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- Case
- [2022] FCA 958
- Decision Date
CaseChat Overview and Summary
The court found that the requirements for preliminary discovery were met in this case. The court noted that while the application for preliminary discovery was not itself a cause of action, it could be fairly characterised as an action based on the tort of defamation committed in Australia. The court found that Accent had a prima facie case and that Google was likely to have access to documents that may contain the Google Account information. The court also found that the application consisted of or included 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. The court therefore granted the application for preliminary discovery, ordering Google to provide certain information about the Google Account associated with the review. The orders included that Google provide the subscriber registration information and IP addresses of the logins to the Google Account, and that Accent hold any personal information disclosed in accordance with all applicable privacy laws. There was no costs order for or against Google.
The decision in B&P Group Pty Ltd v Google LLC (No 2) highlights the importance of the rules of court in facilitating the discovery of information in defamation cases. The court's decision to grant the application for preliminary discovery under rule 7.22 of the Federal Court Rules 2011 (Cth) demonstrates the court's willingness to assist parties in pursuing their claims where necessary. The decision also emphasises the need for parties to ensure that they have a prima facie case before seeking preliminary discovery, as the court will not grant such an application without satisfying itself that the applicant has a right to obtain relief against a prospective respondent.
Orders
Orders of the court
1. Google shall provide to the Prospective Applicant’s solicitors by email at catherine.ballantyne@madgwicks.com.au as soon as is reasonably practicable and in any event within 21 days of having received via certified mail this Order, the following information (to the extent that it is available):
· the subscriber registration information, including their name and address of the Google Account associated with the Google Maps review https://www.google.com/maps/contrib/110670958090780062198/photos/@-37.8261528,145.2795257,17z/data=!4m3!8m2!3m1!1e1?hl=en-US (the Google Account) as well as the IP addresses of the logins to the Google Account, to the extent that such information or data is in the possession of, and readily available to Google as of the date of this Order.
2. No provision of this order is to be construed as requiring Google to provide to the Prospective Applicant the contents of any email sent to or from the Google Account.
3. The Prospective Applicant acknowledges that Google may inform the owner of the Google Account of this request, in accordance with Google’s usual policies.
4. Google may apply to the Court at any time to vary or discharge this Order, subject to first informing the Prospective Applicant by email.
5. To the extent that the information disclosed pursuant to this Order contains personal information, save for that outlined in order 1 above, the Prospective Applicant will hold such personal information in accordance with all applicable privacy laws and ensure only proportionate and appropriate use of such data.
6. There shall be no costs order for or against Google.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Accent seeks preliminary discovery from Google to identify the Google Account so that it may pursue its claim against the person that made that Review. CONSIDERATION I am satisfied that orders for preliminary discovery of the Google Account should be made. Rule 7.22(1) of the Federal Court Rules 2011 (Cth) (Rules) states:7.22 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. I am satisfied that the requirements in r 7.22 are met in the present case and that it is appropriate in the exercise of discretion to require Google to give discovery to the prospective applicant under r 7.22(1)(c) of all documents in their control in relation to the Google Account information. For the purposes of r 7.22(1)(c), I am satisfied that Google is likely to have access to documents that may contain the Google Account information and that Google’s data would be of assistance to the prospective applicant in identifying the anonymous reviewer. In order for the Court to grant an application for preliminary discovery of this kind, the Court must be satisfied that:(a)the 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; (b)the Court has jurisdiction in this proceeding; and(c)the prospective applicant has a prima face case. I am satisfied that these conditions, which have been concisely outlined by Wigney J in Lin v Google LLC [2021] FCA 1113 (Lin), are satisfied in this case. That is so for the following reasons. The 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 none of the proceedings listed in the table in r 10.42 align with an application for preliminary discovery, as explained in Lin at [15], an application for preliminary discovery “can be fairly characterised as an action “based on” the tort of defamation committed in Australia, notwithstanding that the application is not itself that cause of action”. This is because the “claim to be entitled to preliminary discovery is based, at least in part, on the fact that the prospective applicant may have a right to obtain relief, including damages, from someone else (the prospective respondent) for defamation”: see Kandola v Google LLC [2021] FCA 1262 at [8] (Kandola) and Lin at [14]-[15].