Duffy v Google LLC - [2022] SASC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
DUFFY v GOOGLE LLC
[2022] SASC 40
Judgment of the Honourable Justice Nicholson
4 May 2022
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - APPLICATION AND ORDER FOR FURTHER AND BETTER DISCOVERY
Appeal against dismissal of application seeking further discovery.
On 8 April 2021, the appellant, Dr Janice Duffy, filed an interlocutory application for further discovery from the respondent, Google LLC. The Master dismissed the application, finding that the categories were variously so broad as to be oppressive, irrelevant, unclear, and had already been fulfilled.
On appeal, the appellant complained that the Master’s reasons were inconsistent with an earlier interlocutory decision in this matter. The respondent contended that there were no errors in the Master’s reasons and that the decision caused no injustice.
Held:
1. Leave to appeal refused.
2. Appeal dismissed.
Uniform Civil Rules 2020 (SA) r 213.1; Defamation Act 2005 (SA) s 21, referred to.
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; Commonwealth v Saadat [2019] SASCFC 50; Mathew (SA) Nominees Pty Ltd v Belconnen Automotive Pty Ltd (2019) 133 SASR 408; Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 81 ATR 36; House v The King (1936) 55 CLR 499; Duffy v Google LLC [2019] SASC 157; Duffy v Google Inc (2015) 125 SASR 437; Massarani v Kriz [2022] FCA 80; Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452; Google Inc v Trkulja (2016) 342 ALR 504; Trkulja v Google LLC [2019] VSC 38; Trkulja v Google LLC [2019] VSC 309, considered.

DUFFY v GOOGLE LLC
[2022] SASC 40
Single Judge Appeal: Civil
NICHOLSON J.
Introduction

On 8 April 2021, the appellant, Dr Janice Duffy, filed an interlocutory application for further discovery from the respondent, Google LLC (Google). On 30 November 2021, a Master of this Court dismissed the application.[1] Dr Duffy appeals against that dismissal. She requires leave to appeal against such an interlocutory decision.
[1] Duffy v Google Inc (Supreme Court of South Australia, Judge Dart, 23 December 2021) (Master’s reasons).
Background
On 19 October 2016, Dr Duffy filed a claim against Google in the Supreme Court seeking an injunction and damages for defamation. Dr Duffy alleges that Google published defamatory material about her by indexing and displaying four links containing defamatory material observable as search results across google.com and google.com.au. Dr Duffy pleads publication thusly:
Since 6 May 2014, the Defendant has published [the search results] to persons in South Australia or elsewhere in Australia who used a web browser to access the Google Sites and conducted a search for the terms “janice duffy”, “dr janice duffy”, “janice duffy reviews” and “dr janice duffy reviews”. Further particulars of the number of persons to whom the Defendant published the first search result and second search result will be provided following disclosure in this action.
Dr Duffy claims that she notified Google of the allegedly defamatory material via registered post which was delivered to Google on 6 May 2014.
The application
On 8 April 2021, Dr Duffy filed an interlocutory application seeking discovery. Dr Duffy sought eight categories of discovery:
1.The Respondent produces its own data from the dates 19 October 2015 until 5 March 2018 inclusive on the number of searches on Google.com and Google.com.au conducted from an Australian IP address for the following search terms:
a.     janice duffy;
b.    dr janice duffy;
c.     janice duffy reviews;
d.    dr janice duffy reviews.
This data must include:
·       The Google domain on which the search was performed;
·       The location of the search;
·       The search term (related to the Applicants name);
·       The date of the search.
2.All internal Google documents including emails, letters, memoranda of discussions and meetings pertaining to the Applicant dated between 6 May 2014 and 14 December 2020 including in response to the concerns notice received by Google LLC from the Applicant on 6 May 2014.
3.Any documents relating to notifications of removal of content provided to Lumerdatabase.org (formerly Chillingeffects.org) about the Applicant between 6 May 2014 and 1 April 2020.
4.All Google communications pertaining to the Applicant including:
a.     from Professor John L Hennessy to any other person including the person(s) to which he forwarded the Applicant’s emails;
b.    from Google to any other third party or third-party website;
c.     from Google to the owner or other persons associated with the website Techdirt.com.
5.Any documents on policies about removal of content from the Google domains.
6.Any documents relating to notifications and/or removal of content from the domains google.com and google.com.au in response to removal request from any other Australians between 6 May 2014 and 30 November 2018 that have been provided to Lumerdatabase.org (formerly Chilingeffects.org).
7.Documents showing the publication on which the Respondent says the imputations found defamatory in Duffy v Google Inc, [2015] SASC 170, 27 October 2015 were published on third-party websites indexed in the domains google.com and google.com.au between 19 October 2015 and 5 March 2018.
8.Documents on which the Respondent relies for paragraph 32(a)(i)(A) of its defence. The Applicant seeks dated screenshots or PDF’s of third party websites indexed on google.com and google.com.au between 19 October 2015 and 30 November 2018 that show details of the Applicants spent conviction.
On 30 November 2021, the learned Master dismissed the application. On 14 December 2021, Dr Duffy requested that the Master provide reasons. On 23 December 2021, the Master published his reasons for the dismissal.
On 21 December 2021, Dr Duffy filed a notice of appeal. Dr Duffy raises two grounds of appeal, being that the learned Master erred in dismissing the application and in failing to provide reasons. Since the Master has subsequently published reasons, only the first ground remains.
The Master’s reasons
For category 1, his Honour relied on Dow Jones & Co Inc v Gutnick[2] in support of the finding that the material in this category is not relevant.[3]
The present Statement of Claim relates to four specific research results that it is said were displayed on Google Search on specified dates. That is the starting point for consideration of whether documents are discoverable. The applicant then needs to establish that the alleged defamatory material was published to a third party. She does not plead that. The respondent says the pleading is defective. It also says that category 1 is, in a sense, a fishing exercise to determine to whom the material may have been published. The respondent has requested the applicant provide particulars of to whom the publication was said to have occurred. The respondent’s position is that, on the present state of the pleadings, the material sought by category 1 is not relevant. I accept the respondent’s position in respect of that argument. I understood after the argument that the applicant was to consider amending the Statement of Claim, to plead to whom the material was published.
[2] (2002) 210 CLR 575.
[3] Master’s reasons at [10]–[11].
For categories 2 and 4, his Honour found that the categories were so broad as to be oppressive.[4] For categories 3, 5, and 6, his Honour determined that the documents would not be relevant.[5] His Honour found category 7 to be unclear and hence may cause difficulty if the Court were to be required to determine whether discovery for this category had been complied with.[6] Finally, for category 8, Google stated that it had already given Dr Duffy all documents in that category and his Honour found that there was no evidence to the contrary.[7]
[4] Master’s reasons at [14].
[5] Master’s reasons at [13].
[6] Master’s reasons at [15].
[7] Master’s reasons at [16].
His Honour concluded by stating “there is no reason why a further application for discovery could not be made once the applicant has formed a clearer view of what directly relevant documents the respondent may have”.[8]
Considerations
[8] Master’s reasons at [18].
Leave to appeal
As this is an appeal of an interlocutory decision, permission is required under rule 213.1 of the Uniform Civil Rules 2020.
The primary considerations when determining whether leave to appeal should be granted are “whether the primary decision is attended by sufficient doubt to warrant re-consideration” and “whether substantial injustice will be incurred by the applicant if the decision is left to stand”.[9] Both considerations need to be satisfied.[10] The threshold for the first consideration is the same as in House v The King,[11] being whether the judge at first instance “acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts or did not take into account some material consideration” or reached an unreasonable or plainly unjust decision.[12]
[9] Commonwealth v Saadat [2019] SASCFC 50 at [6]. See also Mathew (SA) Nominees Pty Ltd v Belconnen Automotive Pty Ltd (2019) 133 SASR 408 at 417 [47].
[10] Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 81 ATR 36 at 38 [5].
[11] (1936) 55 CLR 499.
[12] Mathew (SA) Nominees Pty Ltd v Belconnen Automotive Pty Ltd (2019) 133 SASR 408 at 417 [48].
Dr Duffy seeks leave on the ground that the Master denied the application “on a legal point already decided by Blue J (2019)”. Google opposes leave being granted on two grounds. First, the Master’s reasons disclose no error and second, the decision causes no injustice.
The summary judgment decision
On 6 September 2019, Blue J handed down a decision which dealt with two interlocutory applications.[13] His Honour dismissed Google’s application for summary judgment and granted Dr Duffy’s application to further amend her statement of claim.
[13] Duffy v Google LLC [2019] SASC 157.
Dr Duffy submits that because Google did not raise the issue of defective pleadings in either its application for summary judgment or in its submissions in opposition to allowing Dr Duffy to file the second amended statement of claim, Google cannot now argue defective pleadings as a reason why further discovery cannot be granted.
Google submits that the fact that Dr Duffy had previously obtained permission to file the second amended statement of claim is irrelevant as Blue J did not consider what documents may be relevant to those pleadings for the purpose of discovery. The issue before Blue J related to s 21 of the Defamation Act 2005 (SA). Further, Google submits that it had raised this issue as early as June 2020, so Dr Duffy cannot claim that she was unaware.
Google’s submission should be accepted. The interlocutory decision by Blue J does not stand in the way of Google relying on Dr Duffy’s allegedly defective pleading in response to her application for further discovery. Quintessentially, discovery obligations are to be determined on the basis of the present state of the pleadings.
Category 1
In 2015, in a previous dispute between Dr Duffy and Google raising similar issues, Blue J found that Google was liable for defamation (first Google decision).[14]
[14] Duffy v Google Inc (2015) 125 SASR 437.
Dr Duffy contends that the learned Master was incorrect to dismiss “not only the first category of search data but my entire application” on the basis of defective pleadings. Dr Duffy submits that her pleadings rely on publication by inference, and hence the particulars are to be determined at trial and do not need to be pleaded. Dr Duffy relies on the first Google decision.[15]
In the case of newspapers with a large circulation and radio and television broadcasts with a large audience, an inference is readily drawn that persons unknown read, heard or saw the defamatory matter. The same approach is applicable to internet versions of newspapers and the like which have a large circulation. In the case of interactive use of the internet, this inference cannot be drawn as a matter of course, ie there is not a “presumption” that there were publishees unknown as in the case of print, radio, television and internet media. The facts and circumstances must be analysed in the traditional way to determine whether the inference should be drawn.
(Citations omitted)
[15] Duffy v Google Inc (2015) 125 SASR 437 at 511 [298].
Google submits that insufficient facts have been pleaded for publication by inference.
An inference that particular material on the internet has been download or viewed will not be drawn from the mere fact that the material has been posted on the internet.[16] A proper pleading of a ‘publication by inference’ therefore requires the pleading of a platform of facts from which such an inference may be drawn beyond the mere availability of the material on the internet. It must also be noted that many of the cases that have dealt with this issue in the context of the Web concerned whether an inference of substantial publication could be drawn, in circumstances where a few (at least one) publishees were particularised. Dr Duffy’s own case against the Respondent, decided by Justice Blue, is an example. There is no case, of which the Respondent is aware, where an inference of publication has been drawn in respect of ephemeral matter such as search results returned by a search engine,[17] without the plaintiff having properly particularised at least some publishees.
[16] Massarani v Kriz [2022] FCA 80 at [53]; Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452; [2009] SASC 215 at [390]-[391].
[17] See, for example, Google Inc v Trkulja (2016) 342 ALR 504; [2016] VSCA 333 at [42], [172] (as to the dynamic nature of the internet); Trkulja v Google LLC [2019] VSC 38; Trkulja v Google LLC [2019] VSC 309.
Google contends that the background of facts is different to the first Google decision because there has been a substantial amount of material online about Dr Duffy’s win in that case and hence it cannot be inferred that the allegedly defamatory links “would have been presented in, for example, the first page of 10 displayed search results”. Google therefore characterises category 1 as a fishing exercise that has the risk of producing highly misleading data, if such data exists.
Google argues that some of the time periods and publications in category 1 are statute barred. Dr Duffy contends that while she has pleaded a period of time which is statute barred, that was only for completeness and to demonstrate consistency of publication, and that the application for discovery excludes the statute barred periods.
Finally, Dr Duffy argues that evidence was given in the summary judgment hearing by one person who had searched Dr Duffy’s name on Google, Ms De Veau, and hence Google’s assertion that she failed to provide details of any publishee is incorrect. Google contends that Ms De Veau giving evidence in the summary judgment hearing does not change the fact that Dr Duffy did not plead that.
Again, Google’s submissions with respect to category 1 should be accepted. The Master was correct to dismiss this aspect of Dr Duffy’s application for the reasons his Honour gave.
Category 2
Dr Duffy submits that his Honour erred in finding category 2 to be so broad as to be oppressive. Dr Duffy contends that:
If the learned Judge had not dismissed my claim in its entirety, my application in this category could have been, as he stated “finetuned a bit”. Specifically the documents relating to my removal requests could have been provided. The documents relating to my removal request, if indeed they exist are unlikely to be in the millions across many departments at Google.
Further, Dr Duffy submits that since Google denies receiving the notification, she is “entitled to any communications that provide reasons for failing to either act upon my notification or refuse removal”.
Google argues that it does not deny receiving Dr Duffy’s letter, rather Google denies it was notified in the matter required under defamation law in the circumstances. Therefore, Google contends that the only issue in dispute is whether the notification was valid, and category 2 is not relevant to that.
I agree with the Master that category 2 is so broad as to be oppressive.
Category 3
Dr Duffy contends that the Master erred in finding category 3 was not relevant because Google sends all notifications of removals to Lumendatabase.org. Since Google argues that it added the links to the removals list, Dr Duffy submits that this category is relevant because it provides evidence as to whether the links were in fact removed.
Google submits that category 3 is not relevant as it relates to what actions Google may or may not have taken after the links were removed and not whether the links were in fact removed.
I agree with the Master that category 3 lacks direct relevance as the pleadings presently stand.
Remaining categories
Dr Duffy has not appealed against the Master’s decision with respect to categories 4, 5, and 6. Dr Duffy did not make any submissions with respect to categories 7 and 8. In any event, the Master was correct to reject categories 7 and 8 for the reasons his Honour gave.
Injustice
Google contends that the decision causes Dr Duffy no injustice because the Master specifically stated that Dr Duffy could bring another application for further discovery that is more precise. Further, Dr Duffy had previously said that she would be able to narrow some of the categories. Google submits that this factor alone is a sufficient basis to refuse leave to appeal.
Conclusion
Dr Duffy has not established either of the limbs required in order to be given leave to appeal the Master’s interlocutory decision. She has identified no error in the Master’s reasons. Further, to allow his Honour’s decision to stand would not lead to a substantial injustice. Dr Duffy is still at liberty to seek leave to further amend her statement of claim (if such leave is necessary) in order to provide a better platform for her discovery requests and/or to file a more targeted or refined application for discovery. I refuse permission to appeal and dismiss the appeal.