Duffy v Google LLC

Case [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

  1. 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

  2. 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…

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AGLC
Duffy v Google LLC [2022] SASC 40
Case
[2022] SASC 40
Decision Date

CaseChat Overview and Summary

Dr Janice Duffy filed an interlocutory application for further discovery against Google LLC, seeking various categories of documents. The Supreme Court of South Australia dismissed the application, and Dr Duffy now appeals the dismissal. Dr Duffy’s defamation claim against Google alleges that it published defamatory material about her through search results on its domains. She claims that she notified Google of the allegedly defamatory material in May 2014. The discovery sought includes Google's data on search terms related to Dr Duffy, internal documents, communications, and policies regarding content removal.

The legal issues before the court were whether the Master's dismissal of the discovery application was in error and whether the decision caused any injustice. Dr Duffy argued that the Master's decision was erroneous because it relied on the notion of defective pleadings, which Google had not raised previously. Google contended that the interlocutory decision by Justice Blue in 2019 did not prevent them from arguing defective pleadings in response to the discovery application. The court found that the interlocutory decision did not bar Google from relying on defective pleadings, as discovery obligations depend on the current state of the pleadings.

The court concluded that there was no sufficient doubt about the primary decision to warrant reconsideration and that Dr Duffy would not incur substantial injustice if the decision stood. The court emphasized that the interlocutory decision by Justice Blue did not preclude Google from arguing defective pleadings in response to the discovery application. The discovery obligations are determined based on the present state of the pleadings. Given these considerations, the court refused leave to appeal and dismissed the appeal.

Orders

Orders of the court

Held:

1. Leave to appeal refused.

2. Appeal dismissed.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NICHOLSON J
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].

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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