Hoser v Harrison
[2024] FedCFamC2G 436
•16 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hoser v Harrison [2024] FedCFamC2G 436
File number(s): MLG 440 of 2023 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 16 May 2024 Catchwords: INTELLECTUAL PROPERTY – Practice and procedure – application by second respondent to dismiss so much of the proceeding as relies on allegations that, by reason of material posted on the first respondent’s Pages he maintains on Facebook and Instagram, being social media platforms the second respondent operates, the second respondent engaged in conduct in contravention of s 18(1) of the Australian Consumer Law (ACL) and in conduct that constituted the infringement of the applicant’s trade marks – whether the applicant does not have reasonable prospects of succeeding on his claims that the posting of material on the first respondent’s Facebook and Instagram Pages constituted the second respondent’s engaging in conduct for the purpose of s 18(1) of the ACL and the second respondent’s infringing the applicant’s trade marks – no reasonable prospects of succeeding on a claim based on trade mark infringement or under s 18(1) of the ACL to the extent the claims based on s 18(1) of the ACL do not rely on any wilful failure to do an act – whether the applicant’s having alleged that he had complained to the second respondent that posts made to the first respondent’s Facebook and Instagram Pages infringed the applicant’s rights and that the second respondent refrained from doing an act in relation to those complaints is reasonably capable of raising a claim that the second respondent wilfully refrained from doing an act, and for that reason had itself engaged in conduct, or whether the second respondent was otherwise a person involved in the first respondent’s alleged misleading or deceptive conduct constituted by the posting of material on the first respondent’s Facebook and Instagram Pages, or was otherwise a joint tortfeasor in relation to the first respondent’s alleged infringement of the applicant’s trade marks – not reasonably capable of giving rise to a claim based on the second respondent being a joint tortfeasor, but reasonably capable of giving rise to a claim that the second respondent wilfully refrained from doing an act, or was otherwise a person involved in the first respondent’s alleged misleading or deceptive conduct – order made requiring the applicant to provide particulars for the purpose of determining whether the applicant does not have reasonable prospects of succeeding on a claim that the second respondent has wilfully refrained from doing an act in relation to the posts about which the applicant complained or was a person involved in the first respondent’s alleged misleading or deceptive conduct.
DEFAMATION – Practice and procedure – application to strike out pleaded imputations on various grounds –a number of challenged pleaded imputations struck out but with leave to replead granted.
Legislation: Competition and Consumer Act 2010 (Cth) ss 6(3), 18(1), 131(1), 139
Copyright Act 1968 (Cth) ss 195AI, 195AJ
Defamation Act 2005 (Cth) ss 4, 6(1)
Trade Marks Act 1995 (Cth) ss 6(1), 7(4), 9(1)(c), 17, 20, 126
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 31A(2)
Judiciary Act 1903 (Cth) ss 79, 80Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13(a), 17.05(2)(g)
Federal Court Rules 2011 (Cth) r 16.2
Cases cited: Adeang v The Australian Broadcasting Corporation [2016] FCA 1200
Ahmed v Harbour Radio (No 2) [2011] NSWSC 20
Air Link Pty Ltd v Paterson (2005) 223 CLR 283
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125
Australian Competition and Consumer Commission v Google Inc [2012] FCAFC 49
Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54
Australian Competition and Consumer Commission v Trading Post Australia Pty Ltd [2011] FCA 1086
Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25
Campomar Sociedad Limited v Nike International Limited [2000] HCA 12
Christian v Société des Produits Nestlé SA(No 2) [2015] FCAFC 153
Coca-Cola Co v All-Fect Distributors Ltd (1999) 47 IPR 481
Dow Jones & Company Inc v Gutnick [2002] HCA 56
Drummoyne Municipal Council v Australian Broadcasting Commission (1990) 21 NSWLR 135
Fair Work Ombudsman v A to Z Catering Solution Pty Limited & Anor (No.2) [2018] FCCA 2299
Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Ferros v West Sydney Radio Pty Ltd, Supreme Court of New South Wales Court of Appeal, 22 June 1982 BC8200027
Fish & Fish Ltd v Sea Shepherd UK [2015] UKSC 10
Giorgianni v R (1985) 158 CLR 661
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 167
Google Inc v Australian Competition and Consumer Commission [2013] HCA 1
Google LLC v Defterios [2022] HCA 27
Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
Horlick v Associated Newspapers Ltd [2010] EWHC 1544
Hoser v Georges (No 2) [2024] FedCFamC2G 243
Lee v Wilson (1934) 51 CLR 276
Lewis v Daily Telegraph Ltd [1964] AC 234
L’Oreal SA v eBay International AG [2009] EWHC 1094
Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
R v Russell [1933] VLR 59
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16
Re State Government Insurance Corporation and State Government Insurance Commission v Government Insurance Office of New South Wales; Gio Holdings Ltd and Gio Life Ltd [1991] FCA 121
Six4Three, LLC v Facebook, Inc Case No AA154890 30.09.2020
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1
The Shell Company of Australia Limited v Esso Standard Oil (Australia) Limited (1963) 109 CLR 407
Toben v Milne [2014] NSWCA 200
Trkulja v Google LLC [2018] HCA 25
WD & HO Wills (Aust) Ltd v Rothmans Ltd (1956) 94 CLR 182
Webb v Bloch (1928) 41 CLR 331
Woolworths Limited v BP plc (No 2) (2006) 154 FCR 97
Yorke v Lucas (1985) 158 CLR 661
Division: General Number of paragraphs: 203 Date of hearing: 2 November 2023 Place: Sydney The Applicant: Appeared in person, by telephone The First Respondent: Appeared in person, by telephone Counsel for the Second Respondent: Ms G Schoff KC with Mr S Mukerjea, by video Solicitor for the Second Respondent: Banki Haddock Fiora ORDERS
MLG 440 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAYMOND HOSER
Applicant
AND: ANTHONY HARRISON
First Respondent
META PLATFORMS INC
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
16 MAY 2024
THE COURT ORDERS THAT:
1.Pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the proceeding be stayed against the second respondent to the extent the applicant claims relief on the basis that the second respondent:
(a)engaged in conduct within the meaning of 18(1) of Schedule 2 to the Competition and Consumer Act 2010 (Cth) (other than by wilfully refraining from doing an act);
(b)engaged in conduct that constituted the infringement of the applicant’s trade marks;
(c)engaged in conduct that rendered the second respondent liable as a joint tortfeasor in relation to the first respondent’s alleged infringement of the applicant’s trade marks; and
(d)infringed the applicant’s moral rights as an author as provided for under Part IX of the Copyright Act 1968 (Cth).
2.Pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) the imputations pleaded in:
(a)paragraphs (i), (iii), (vi), (vii), (viii), (ix), (xiii), (xv), (xvi), (xvii), (xix), (xxiii) and (xxv);
(b)paragraphs 209 (iii), (x), (xiii), (xv), (xvi), (xvii) and (xviii); and
(c)paragraphs 251 I, II, III, V, VI, VII, IX, X, XI, XIII, XV, XVIII, XX, XXI, XXII, and XXIV
of the amended statement of claim be struck out.
3.The applicant have liberty to file and serve by 13 June 2024 a document headed “Repleading of Deficiently Pleaded Imputations” in the form of Schedule 3 to the reasons for judgment on the basis of which these orders are pronounced.
4.By 13 June 2024 the applicant file and serve a document headed “Particulars of Claim of Wilfully Refraining to do an Act and Secondary Liability Claims” in the form of Schedule 4 to the reasons for judgment on the basis of which these orders are pronounced.
5.The matter be listed for a directions hearing at 9.30 am on 27 June 2024 or at such other time as is convenient to the parties and to the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
[1]
BACKGROUND - SOCIAL MEDIA PLATFORMS AND SERVICES
[5]
[11]
Opening an account
[12]
Using the Facebook Service
[14]
Facebook profiles and “feeds”
[14]
Facebook pages
[18]
Facebook Terms of Service
[22]
Description of FTS
[23]
The Facebook services
[25]
Funding of Facebook services
[26]
Users’ obligations
[27]
Permissions user grant to Meta
[28]
Obligations of users in connection with use of Facebook services
[29]
[30]
Other standards
[35]
Enforcing compliance with FCS and standards
[36]
Monitoring compliance with and facilitating reporting breaches of FCS and standards
[37]
[44]
Opening an account
[44]
Using the Instagram Service
[46]
The Instagram Terms of Use – enforcement - monitoring
[47]
THE AMENDED STATEMENT OF CLAIM
[48]
Mr Hoser, his companies, businesses and trade marks
[51]
Mr Harrison
[53]
Meta
[55]
“Matters complained of”
[57]
MCO1 – 15 March 2022 post (defamation)
[57]
MCO2 – 18 March 2022 post (defamation)
[62]
MOC3 – second 18 March 2022 post (defamation)
[66]
MCO4 - (defamation and infringement of moral rights)
[72]
MCO5 – trade mark infringement/ACL
[77]
MCO6 – trade mark infringement/ACL
[82]
MCO7 – trade mark infringement/ACL
[84]
MCO8 – trade mark infringement
[85]
MCO9 – trade mark infringement/ACL
[86]
MCO10 – trade mark infringement/ACL
[87]
MCO11 – trade mark infringement/ACL
[88]
Cease and desist letters
[89]
Ms Tunkis’ affidavit
[90]
SUMMARY DISMISSAL – PRINCIPLES
[100]
CLAIMS BASED ON S 18(1) OF THE ACL
[102]
Parties’ submissions
[102]
Issues arising
[106]
Section 18 of the ACL
[109]
“Person”
[111]
“Conduct” and “engage in conduct”
[114]
Engaging in conduct that is misleading or deceptive or likely to mislead or deceive
[120]
The Google case
[124]
The primary judge
[126]
Full Federal Court
[129]
High Court
[130]
Conclusion
[139]
The innocent intermediary principle
[140]
Secondary liability
[143]
“Publication” in the law of defamation and “engage in conduct”
[147]
The law of defamation – the law to be applied
[150]
Elements of a cause of action in defamation
[155]
“Publication” in the law of defamation
[158]
Is “publication” broader than “engage in conduct”?
[166]
Determination
[168]
CLAIMS BASED ON TRADE MARK INFRINGEMENT
[173]
Principles
[173]
Liability as participant in another’s infringement of a trade mark
[177]
Parties’ submissions
[181]
Determination
[183]
CLAIM UNDER THE COPYRIGHT ACT
[187]
STRIKE OUT OF PLEADED IMPUTATIONS
[189]
Rules and principles
[189]
Determination
[198]
Imputations pleaded in relation to MCO1
Imputations pleaded in relation to MCO2
Imputations pleaded in relation to MCO3
CONCLUSION
[200]
INTRODUCTION
In his amended statement of claim the applicant, Mr Hoser, alleges that the first respondent, Mr Harrison, and other persons, posted material to his Facebook and Instagram Pages; and, by so doing, Mr Harrison engaged in conduct (infringing conduct) that infringed Mr Hoser’s registered trade marks and, in one case, his moral rights as an author; engaged in conduct (contravening conduct) that was misleading or deceptive, in contravention of s 18(1) of Schedule 2 (ACL) to the Competition and Consumer Act 2010 (Cth) (Competition and Consumer Act); and published matter conveying defamatory imputations of and concerning Mr Hoser (defamatory conduct). Mr Hoser further alleges that Mr Harrison’s conduct constituted conduct by the second respondent (Meta), because Meta, being the owner and controller of the Facebook and Instagram platforms, was in a position to remove, but refused to remove, the offending content when asked to do so; and, in any event, the material that was posted to Mr Harrisons’ Facebook and Instagram Pages was published on behalf of Facebook and Instagram because those platforms benefit from the posting and publication of user generated material.
Meta submits that Mr Hoser does not have reasonable prospects of succeeding on those parts of the amended statement of claim that allege that Mr Harrison’s infringing and contravening conduct constituted infringing and contravening conduct by Meta. For that reason, Meta applies, pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), for an order that the claims he makes against Meta based on the infringing and contravening conduct be dismissed or, in the alternative, for an order, pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) (Federal Court Rules), that there be struck out so much of the amended statement of claim filed on 25 May 2023 (amended statement of claim) that relates to Mr Hoser’s claims that Meta engaged in the infringing and contravening conduct.
Meta denies that, to the extent the defamatory conduct constituted the publication of matter that conveyed defamatory imputations of and concerning Mr Hoser, Meta itself published the defamatory matter; but Meta accepts that whether it was in fact a publisher of the defamatory matter, for the purposes of the law of defamation, is a question to be determined at trial. Meta submits, however, that many of the imputations (challenged imputations) the amended statement of claim alleges arise from the matters posted on Mr Harrison’s Pages at Facebook and Instagram do not comply with the rules that govern the pleading of defamatory imputations and, for that reason, should be struck out.
In these reasons for judgment, therefore, I consider whether Mr Hoser does not have any reasonable prospects of succeeding on his claims that Meta engaged in the infringing or contravening conduct, and whether any of the challenged imputations should be struck out. I will begin by providing some background about the nature of social media and social media services. I will then set out the evidence Meta has adduced about the nature of Facebook and Instagram, the terms on which users may post material on those platforms, and the ability Meta has to monitor and control the posting of such material. That is necessary because the success of Meta’s application in large part depends on my accepting Meta’s evidence. I will then set out the central allegations Mr Hoser makes in the amended statement of claim, and evidence Meta has adduced that addresses some of the matters alleged in the amended statement of claim.
BACKGROUND - SOCIAL MEDIA PLATFORMS AND SERVICES
Although there is some difficulty in giving a comprehensive definition of the expression “social media”,[1] its core meaning is widely and well understood. It denotes a website (platform) that supports applications that: (a) permit any person (user) who has access to the Internet to create a presence on the platform by reference to the user’s name (or other form of identification); (b) allocate and maintain a space on the platform that is associated with the user’s name (or other identifying feature) (profile or page); (c) enable the user to upload (post) content on his or her profile or page in the form of text, images, audio, and video, and for that content to remain on the user’s profile for a specified time or until the user (or the operator of the platform) decides to remove it; (d) enable the user to identify on his or her profile other users who have also created a profile on the platform, and who may access the content on his or her profile (friends); and (e) enable persons other than friends to access their page.
[1] See, for example, the discussion in Carr, C. T., & Hayes, R. A. (2015). “Social media: Defining, developing, and divining” Atlantic Journal of Communication, 23(1), doi: 10.1080/15456870.2015.97228. At page 8 of that article the authors give the following definition: “Social media are Internet-based channels that allow users to opportunistically interact and selectively self-present, either in real-time or asynchronously, with both broad and narrow audiences who derive value from user-generated content and the perception of interaction with others.” For an earlier survey, see Kaplan, A. M., & Haenlein, M. (2010). “Users of the world, unite! The challenges and opportunities of social media.” Business Horizons, 53(1), 59–68
On the basis of these features, users are able to post to their profile or page content (which they may or may not themselves have created) to be viewed by friends, or friends and others; be alerted to and view content that friends and other users have posted to their profiles or pages; communicate with friends; and, by a user listing his or her friends, disclose his or her social network to all friends. It also enables businesses and persons who have or who wish to develop a wide public following (such as actors, musicians, artists, influencers, and reality celebrities) to post on their pages material that may be of interest to their customers or potential customers, or their followers or potential followers; and to encourage or otherwise facilitate customers and followers to post content and comments, and share content and comments posted by others.
Social media platforms are owned or managed by social media companies (SMCs); and it is only by a person’s entering into an agreement with a SMC that the SMC will permit the person to use any of the functions that the SMC’s social media platform is capable of performing. The agreement a SMC enters into with a person identifies the function or set of functions of the social media platform the SMC controls that the person will be permitted to use; and it is the SMC’s permission to use that function or set of functions that constitutes the social media service or set of services the SMC provides to the person. The agreement will also identify the terms on which the person will be permitted to use the function or functions of the social media platform that is identified in the agreement.
SMCs offer and provide social media services to earn revenues. SMCs do not, however, derive their revenues by charging users. The SMCs’ principal source of revenue is advertisers. The volume and nature of the information that is posted on social media platforms, and the patterns of communication among users, constitute fertile sources of information on the basis of which marketers and advertisers may be able to identify (and influence) actual and emerging trends of consumption or potential consumption. SMCs offer, and if accepted provide, to advertisers for a price, services that enable advertisers to identify with varying degrees of precision the class or classes of users who may particularly be interested in the goods or services the advertiser sells, and for advertisers to direct content to people to induce them to buy their goods or services, or to provide feedback that would assist advertisers to improve the goods and services they offer.
The availability of social media has become ubiquitous, and it has for some time afforded the basis for a vast array of communications for commercial, educational, cultural, political, and social purposes. A recent survey of social media has described its nature and extent as follows:[2]
Social media platforms play an essential role in the modern economy. While these platforms began as niche websites for interacting with friends, they have become ubiquitous and transformed how people interact and communicate. In 2023, there were 4.76 billion social media users worldwide, comprising 60% of the world population and over 90% of internet users . . . . Internet users spend almost 2.5 hours daily on social media platforms, more than any leisure or media activity besides television . . . . The mass adoption of these applications has resulted in a speed and range of information flow that is unprecedented in history. Businesses, organizations, and politicians use social media to directly connect with individuals, target users with ads, and offer algorithmically curated content to the most relevant consumers.
[2] Aridor, Guy and Jiménez-Durán, Rafael and Levy, Ro’ee and Song, Lena, “The Economics of Social Media” (2024). CESifo Working Paper No. 10934, Available at SSRN: >
Meta is a SMC; and “Facebook” and “Instagram” are the names Meta uses to identify two distinct social media platforms it controls and manages, and the services which it provides by means of those platforms. Meta provides social media services by means of these two platforms to users and advertisers; and it does so pursuant to agreements users and advertisers must enter into with Meta. In these reasons for judgment, I am concerned with the social media services Meta provides to users by means of its Facebook and Instagram platforms, and the terms under which it provides these services.
FACEBOOK
Meta has read an affidavit made by Ms Tunkis, who holds the position of Global Head of Intellectual Property Operations, in which she describers services that Meta provides by means of its Facebook and Instagram platforms, the terms pursuant to which Meta provides these services, the means by which Meta enforces those terms, and the procedures it has put in place to monitor and prevent the abuse by users of intellectual property (IP) rights. In this and the following sections of my reasons I set out the effect of Ms Tunkis’ evidence, which I accept.
Opening an account
A person who wishes to use the social media services Meta provides under the name of “Facebook” (Facebook services) must first create an account. The person may do this by using his or her web browser to navigate to and click the “Create New Account” button. The person will be prompted to enter his or her name, phone number or email address, date of birth, create a password, and then click “Sign Up”.[3] A person may also create a Facebook account by downloading the Facebook app on a mobile device, and tapping “Create New Account”. That will direct the person to “Get Started” which, when tapped, brings up prompts leading the person to enter his or her name, date of birth, and gender. The person will then be prompted to enter his or her phone number or email address, after which the person will tap “Sign Up”.[4]
[3] Affidavit of B M Tunkis 17.07.2023, [16.a.]
[4] Affidavit of B M Tunkis 17.07.2023, [16.b.]
By clicking “Sign Up” on a web browser, or on the mobile app, a person confirms his or her acceptance of the “Terms of Service”. That is a reference to the terms of the agreement Meta requires a person who resides in Australia to accept before he or she can acquire the Facebook services.[5] The current Facebook Terms of Service (FTS) have been in effect since 26 July 2022.[6] I will refer later to relevant provisions of the FTS.
Using the Facebook Service
[5] Affidavit of B M Tunkis 17.07.2023, [17]
[6] Affidavit of B M Tunkis 17.07.2023, [10]
Facebook profiles and “feeds”
Creating an account with Facebook generates a “profile”. That is a space on which a user can post information about himself or herself, and other information in the form of text, photos, and videos. [7] There are settings by which the user can select the persons who can view the material he or she posts. This ranges from private, public, or somewhere in between (that is, “friends”).[8] A user can add a profile picture to their profile which is always public, but which he or she can replace or delete. [9] A user’s profile also includes a “Timeline” which stores the content the user posts to his profile. [10] The posts on a user’s Timeline are displayed in reverse-chronological order. The most recent posts are at the top of a user’s Timeline and, as the user looking at the Timeline scrolls down, older posts are loaded onto the page.[11]
[7] Affidavit of B M Tunkis 17.07.2023, [18]
[8] Affidavit of B M Tunkis 17.07.2023, [18]
[9] Affidavit of B M Tunkis 17.07.2023, [19]
[10] Affidavit of B M Tunkis 17.07.2023, [20]
[11] Affidavit of B M Tunkis 17.07.2023, [23]
To post content, and therefore share it with friends and others, the user will click “What’s on your mind?” that appears on the user’s homepage at the top of the “feed” (which I describe in the next paragraph).[12] Clicking “What's on your mind?” populates a separate window called “Create post” on which the user can add a text update, or click the type of post he or she would like to share (for example, by adding a “Photo/video”, “Feeling/activity”, or “Live video”), and then clicking “Post”.[13]
[12] Affidavit of B M Tunkis 17.07.2023, [21]
[13] Affidavit of B M Tunkis 17.07.2023, [21]
“Feed” refers to the continually updating list of stories that appear in the middle of a user’s home page. The “feed” includes status updates, photos, videos, links, app activity, and likes from other users (including friends), “pages” (which I discuss below), and groups that a user follows on Facebook. When viewing another user’s post on Facebook, a user can click “Like” below the post to let the user who created the post know that he or she enjoyed the post without leaving a comment on it. A user can also “react” to a post to express a specific response through a variety of symbols, including “love” (a heart-shaped symbol), “haha” (a laughing face symbol), “wow” (a surprised face symbol), or “sad” (crying face symbol). A user can leave this reaction by tapping and holding “Like” and then choosing the reaction symbol of their choice.[14]
[14] Affidavit of B M Tunkis 17.07.2023, [20]
A user can also post on a friend’s Facebook Timeline by navigating to their friend’s profile, clicking the box that says, “Write something to [name of friend].” The user can enter a message or choose to add something to their post, such as a photo, video, feeling, or activity, and then click “Post.”[15]
[15] Affidavit of B M Tunkis 17.07.2023, [22]
Facebook pages
The profile is used for personal (that is, non-commercial) purposes, and represents an individual person. A user, however, can represent his or her business, organization, brand, or product on Facebook; and the user can do this by turning on “professional mode” for their profile, or by using his or her personal account to create and manage a “Page”.[16]
[16] Affidavit of B M Tunkis 17.07.2023, [23]
A “Page” (Page) is a place on Facebook on which a business, artist, public figure, brand, or an organisation can share updates and connect with their fans or customers.[17] A user creates a Page by navigating to where he or she will be prompted to enter a name for the Page, and to enter up to three categories that best describe the Page to help users locate the Page, after which the user clicks “Create Page”. On creating a Page, the user agrees to the terms of an agreement known as “Meta’s Commercial Terms”, and to the “Pages, Group and Events Policy” (to which I will refer later). The user who creates the Page automatically becomes the Page’s administrator (Admin), which means the user can change how the Page looks, and post content on the Page.[18] Admins can, among other things, publish stories, organize events, and create ads, promotions, or boosted posts (paid advertisements promoting existing posts on Pages) from their Page. Every Page is linked to, and managed through, the user’s profile, although all of the information on the Page, such as posts, comments, photos, and updates, is separate from the user’s profile.[19]
[17] Affidavit of B M Tunkis 17.07.2023, [24]
[18] Affidavit of B M Tunkis 17.07.2023, [25]
[19] Affidavit of B M Tunkis 17.07.2023, [26]
Admins publish content on their Pages by posting it. When posted, the content will be public and any one who can view the Page can comment on the post unless the Admin limits the persons who can comment. Admins can also share photos, videos, and links to a third-party webpage on the Internet. A person who has access to the Page may view the third-party content by clicking on the link.[20]
[20] Affidavit of B M Tunkis 17.07.2023, [27]
Facebook provides settings that enable Admins to manage visitor posts and comments on their Page. These include: controlling whether visitors can post a comment on the Admin’s Page or permitting comments to be posted only after the Admin views the intended comment;[21] controlling what visitors can post on the Page;[22] controlling who can comment on content posted on the Page;[23] blocking certain words from appearing in comments on the Page;[24] hiding individual comments;[25] hiding individual replies;[26] deleting posts and individual comments;[27] and banning and blocking profiles or other Pages from the Page.[28] An Admin can “unpublish” or “deactivate” his or her Page, which results in the Page being hidden from the public until the Admin publishes or reactivates the Page.[29] An Admin may also “delete” his or her Page which will result in the Page immediately being unpublished or deactivated, but deleted in 30 days.[30]
[21] Affidavit of B M Tunkis 17.07.2023, [31.a.]
[22] Affidavit of B M Tunkis 17.07.2023, [31.b.]
[23] Affidavit of B M Tunkis 17.07.2023, [31.c.]
[24] Affidavit of B M Tunkis 17.07.2023, [31.d.]
[25] Affidavit of B M Tunkis 17.07.2023, [31.e.]
[26] Affidavit of B M Tunkis 17.07.2023, [31.f.]
[27] Affidavit of B M Tunkis 17.07.2023, [31.g. h.]
[28] Affidavit of B M Tunkis 17.07.2023, [31.i.]
[29] Affidavit of B M Tunkis 17.07.2023, [32]
[30] Affidavit of B M Tunkis 17.07.2023, [33]
Facebook Terms of Service
As I have already noted, Meta provides the Facebook services to users on the terms contained in the FTS.
Description of FTS
The FTS begin with a section that describes the purpose of the FTS:
Meta builds technologies and services that enable people to connect with each other, build communities and grow businesses. These Terms govern your use of Facebook, Messenger and the other products, features, apps, services, technologies and software that we offer (the Meta Products or Products), except where we expressly state that separate terms (and not these) apply. These Products are provided to you by Meta Platforms, Inc.
We don’t charge you to use Facebook or the other products and services covered by these Terms, unless we state otherwise. Instead, businesses, organisations and other persons pay us to show you ads for their products and services. By using our Products, you agree that we can show you ads that we think may be relevant to you and your interests. We use your personal data to help determine which personalised ads to show you.
We don’t sell your personal data to advertisers, and we don’t share information that directly identifies you (such as your name, email address or other contact information) with advertisers unless you give us specific permission. Instead, advertisers can tell us things such as the kind of audience that they want to see their ads, and we show those ads to people who may be interested. We provide advertisers with reports about the performance of their ads that help them understand how people are interacting with their content. See Section 2 below to learn more about how personalised advertising under these Terms works on the Meta Products.
Our Privacy Policy explains how we collect and use your personal data to determine some of the ads that you see and provide all of the other services described below. You can also go to your settings pages of the relevant Meta Product at any time to review the privacy choices that you have about how we use your data.
Next, the FTS sets out four broad sets of terms that apply to all users.
The Facebook services
The first set of terms, which appear under the heading “The services we provide”, describe the services Meta provides under the FTS (Facebook Services). These include services that “provide a personalised experience for you”; “connect you with people and organisations that you care about”; “empower you to express yourself and communicate about what matters to you”, “help you discover content, product and services that may interest you”, and “promote the safety, security and integrity of our services, combat harmful conduct and keep our community of users safe”.
Funding of Facebook services
The second set of terms is headed “How our services are funded”. Here, the FTS provide that, instead of paying to use Facebook and the other products and services Meta offers, the user agrees, by using the products covered by the FTS, that Meta “can show you personalised ads and other commercial and sponsored content that businesses and organisations pay us to promote on and off Meta Company Products”; and that Meta “use your personal data, such as information about your activity and interests, to show you personalised ads and sponsored content that may be more relevant to you”. This part of the FTS explains how Meta uses a user’s personal data “without telling advertisers who you are”:
We don’t sell your personal data. We allow advertisers to tell us things such as their business goal, and the kind of audience that they want to see their ads (for example, people between the ages of 18-35 who like cycling). We then show their ad to people who we think might be interested.
We also provide advertisers with reports about the performance of their ads to help them understand how people are interacting with their content on and off Meta Products. . . . .
We collect and use your personal data in order to provide the services described above for you.
Users’ obligations
The third class of terms is headed “Your commitments to Facebook and our community”. This section contains two classes of terms.
Permissions user grant to Meta
These include a term under which the user permits Meta to do the following:
(a)Use content the user creates and shares, but on the basis that the user retains ownership of any intellectual property rights in the user’s contents.[31]
Specifically, when you share, post or upload content that is covered by intellectual property rights on or in connection with our Products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free and worldwide licence to host, use, distribute, modify, run, copy, publicly perform or display, translate and create derivative works of your content (consistent with your privacy and application settings). This means, for example, that if you share a photo on Facebook, you give us permission to store, copy and share it with others (again, consistent with your settings) such as Meta Products or service providers that support those products and services. This licence will end when your content is deleted from our systems.
(b)Use the user’s name, profile picture, and information about the user’s actions with ads and sponsored or commercial content.[32]
You give us permission to use your name and profile picture and information about actions that you have taken on Facebook next to or in connection with ads, offers and other sponsored or commercial content that we display across our Products, without any compensation to you. For example, we may show your friends that you are interested in an advertised event or have liked a Facebook Page created by a brand that has paid us to display its ads on Facebook. Ads and content such as this can only be seen by people who have your permission to see the actions that you've taken on Meta Products. You can learn more about your ad settings and preferences.
(c)Update software when the user uses or downloads any Meta software.[33]
[31] FTS, cl 3.3.1
[32] FTS, cl 3.3.2
[33] FTS, cl 3.3.3
Obligations of users in connection with use of Facebook services
The third class of terms also imposes on the user the following particular obligations:[34]
[34] FTS, cl 3.2
We want people to use Meta Products to express themselves and to share content that is important to them, but not at the expense of the safety and well-being of others or the integrity of our community. You therefore agree not to engage in the conduct described below (or to facilitate or support others in doing so):
1. You may not use our Products to do or share anything:
•That violates these Terms, the Community Standards, or other terms and policies that apply to your use of our Products.
•That is unlawful, misleading, discriminatory or fraudulent (or assists someone else in using our Products in such a way).
•That you do not own or have the necessary rights to share. That infringes or violates someone else's rights, including their intellectual property rights (such as by infringing another's copyright or trademark, or distributing or selling counterfeit or pirated goods), unless an exception or limitation applies under applicable law.
2. You may not upload viruses or malicious code, use the services to send spam or do anything else that could disable, overburden, interfere with or impair the proper working, integrity, operation or appearance of our services, systems or Products.
3. You may not access or collect data from our Products using automated means (without our prior permission) or attempt to access data that you do not have permission to access.
4. You may not proxy, request or collect Product usernames or passwords, or misappropriate access tokens.
5. You may not sell, license or purchase any data obtained from us or our services, except as provided in-the-Platform-Terms.
6. You may not misuse any reporting, flagging, dispute or appeals channel, such as by making fraudulent, duplicative or groundless reports or appeals.
Facebook Community Standards
Although not expressly stated, users are required to comply with the “Facebook Community Standards” (FCS). That is so because, under cl 4.2, Meta is entitled to “suspend or permanently disable your access to Meta Company Products, and we may permanently disable or delete account” if, among other things a user has “clearly, seriously or repeatedly breached our Terms or Policies, including, in particular, the Community Standards”.[35]
[35] Affidavit of B M Tunkis 17.07.2023, [47]; annexure “H”
The FCS contain standards “for what is and isn’t allowed on Facebook”; and the FCS have identified the following as the goals of the FCS:
The goal of our Community Standards is to create a place for expression and give people a voice. Meta wants people to be able to talk openly about the issues that matter to them, whether through written comments, photos, music or other artistic mediums, even if some may disagree or find them objectionable. In some cases, we allow content - which would otherwise go against our standards - if it’s newsworthy and in the public interest. We do this only after weighing the public interest value against the risk of harm, and we look to international human rights standards to make these judgments. In other cases, we may remove content that uses ambiguous or implicit language when additional context allows us to reasonably understand that the content goes against our standards.
The FCS then identify the values they seek to promote (authenticity, safety, privacy and dignity), and later set out in sections particular policies, beginning with a statement of the rationale of the policy, followed by a statement of the policies themselves. Relevant to these reasons are two particular FCSs. One is “Fraud and deception”, whose policy rationale is stated to be as follows:
In an effort to prevent fraudulent activity that can harm people or businesses, we remove content that purposefully deceives, wilfully misrepresents or otherwise defrauds or exploits others for money or property. This includes content that seeks to coordinate or promote these activities using our services.
We allow people to raise awareness and educate others as well as condemn these activities unless this includes content that contains sensitive information, such as personally identifiable information.
The section of the policy identifies the content the user must not post, being content that “provides instructions on, engages in, promotes, coordinates, encourages, facilitates, recruits for or admits to the offering or solicitation of” activities the policy identifies.
A second FCS that is relevant to these reasons is the policy headed “Intellectual property”. The FCS states the following as the rationale of this FCS:
Facebook takes intellectual property rights seriously and believes that they are important to promoting expression, creativity and innovation in our community. You own all of the content and information that you post on Facebook, and you control how it is shared through your privacy and application settings. However, before sharing content on Facebook, please make sure that you have the right to do so. We ask that you respect other people's copyrights, trademarks and other legal rights. We are committed to helping people and organisations promote and protect their intellectual property rights.
Facebook’s Terms of Service do not allow people to post content that violates someone else's intellectual property rights, including copyright and trademark. We publish information about the intellectual property reports we receive in our bi-annual transparency report.
Other standards
Users may need to agree with supplemental terms if they use particular Facebook services. These include the “Pages, Groups and Events Policy” which applies to Admins, under which Admins agree, among other things, to “represent themselves authentically”; not create pages, groups, or events that violate the FCS, and ensure that the content they create, or permit to be created, complies with those standards; and ensures that their Page, group or event complies with applicable laws, statutes, and regulations.[36]
[36] Affidavit of B M Tunkis 17.07.2023, [49]
Enforcing compliance with FCS and standards
The fourth class of terms concerns the enforcement of the GFTS and FCS and other policies. Clause 4.2 of the FTS entitles Meta to suspend or permanently disable a user’s access to the Facebook service or to other Meta products, and Meta may also disable or delete the user’s accounts. Meta is entitled to do any of these things for the reason stated in that clause, which include the serious or repeated breach of the FTS of other policies, and in particular the FCS, and the user repeatedly infringing other people’s intellectual property rights. Clause 4 further provides:
Where we take such action, we'll let you know and explain any options you have to request a review, unless doing so may expose us or others to legal liability; harm our community of users; compromise or interfere with the integrity or operation of any of our services, systems or Products; where we are restricted due to technical limitations; or where we are prohibited from doing so for legal reasons. You can learn more about what you can do if your account has been disabled and how to contact us if you think that we have disabled your account by mistake.
Monitoring compliance with and facilitating reporting breaches of FCS and standards
Ms Tunkis deposes that Facebook has over 2.96 billion “active users”, being people who use their account at least on a monthly basis; and Instagram has more than 2 billion monthly users.[37] Ms Tunkis further deposes that, given the number of users, there are billions of pieces of content posted on Facebook and Instagram each day, which means that it is not possible to have a human monitoring of each interaction of every user.[38]
[37] Affidavit of B M Tunkis 17.07.2023, [6], [7]
[38] Affidavit of B M Tunkis 17.07.2023, [8]
The Facebook service contains a facility for users to report concerns or complaints about content that is posted on the Facebook platform. The facility is accessed by users clicking on the “Report” link that appears near the content that is posted. The Facebook Help Centre contains step-by-step instructions of the means by which a user can report various types of content other users may post.[39] Meta has also established particular procedures that are designed to assist persons who hold intellectual property rights (IP rights). These include a section that is maintained in the “Transparency Center”, which explains how Meta helps rights holders protect their IP rights. The explanation includes a paper titled “IP Protection on Facebook and Instagram” (IP Paper) which outlines the plans Meta has in place for protecting IP Rights (IP Program).[40]
[39] Affidavit of B M Tunkis 17.07.2023, [51]
[40] Affidavit of B M Tunkis 17.07.2023, [53]. The IP Paper may be accessed by clicking the link “IP companion paper” that appears at >
The IP Paper begins with a general explanation of the IP Program:
Facebook’s IP protection measures begin with our Terms of Service and our Community Standards, both of which prohibit users from posting content that infringes the IP rights of others. We take the same stance in our content policies governing Instagram, as reflected in our Terms of Use and Community Guidelines.
For example, Facebook’s Terms of Service prohibit the use of our products to do or share anything that infringes or violates someone else’s rights, including their intellectual property rights. Our Community Standards, which establish what is and is not allowed on Facebook, reinforce and expand on that policy, as do the similar provisions of our Community Guidelines for Instagram.
We maintain additional policies prohibiting IP-violating content in specific products and services that we offer, including our Advertising Policies and Commerce Policies, which make clear that ads and commerce listings must not contain content that infringes upon or violates the rights of any third party. And we provide detailed Intellectual Property Help Centers for both Facebook and Instagram, where users and rights holders can learn more about IP rights, as well as our policies and procedures for taking actions to protect IP.
The IP Paper identifies three aspects to the IP Program. The first, which the IP Paper describes as “a foundational aspect of our IP program”, is what it describes as “notice-and-takedown” plan. Under that plan:
Notice-and-takedown is a foundational aspect of our IP program, and we invest heavily in the teams and systems that do this work. We provide dedicated channels for rights holders to report content that they believe infringes their rights, including customized online forms for copyright, trademark and counterfeit issues. Rights holders can use these forms to report different types of content they identify on Facebook or Instagram, ranging from individual posts, photos, videos or ads, to an entire profile, account, Page, group or event, if rights holders believe these to be infringing in their entirety.
Reports submitted by a rights holder are processed by our IP Operations team, a team of trained professionals that span across major global markets who provide around-the-clock coverage in multiple languages. If a report is complete and valid, the team promptly removes the reported content — typically within a day or less, and in many cases within a matter of hours or even minutes — and confirms that action with the rights holder that reported it.
And we don’t stop there. In many cases, in addition to removing individual pieces of reported content, we’ll also take a closer look at the account responsible for that content. For example, if a rights holder submits a counterfeit report against a single post, we may review the whole Page profile or ad account that made the post and remove the account in its entirety if we discover evidence of widespread infringement.
A second aspect of the IP Plan consists of various measures Meta itself uses to identify IP rights violations. These include the use of machine learning to recognise patterns on Facebook (and Instagram) “based on specific IP violation types and the various trends and signals associated with them”; and the use of “automated systems that detect and track the presence of keywords associated with piracy and counterfeit activity, prior IP violations from problematic accounts, and other factors that signal the presence on our platforms of potentially infringing content and bad actors”.
A third aspect of the IP Plan consists of “specialised tools that help rights holders identify and report infringing content and that, in some instances, eliminate the need for them to report any content at all”. The IP Plan discusses two such tools, these being the “Rights Manager”, and the “Commerce & Ads IP Tool”. The Rights Manager:
is a content management system that identifies video, audio and images on Facebook and Instagram, including live videos, that match rights holders’ copyrighted content. Participating rights holders can upload their copyrighted content into the tool and when a match is detected, decide what action they want to take regarding the content. These action options include, among other things, easily reporting the content, or blocking it from being viewed by anyone other than the uploader. If a rights holder chooses to block all videos matching certain criteria, for example, then this action eliminates the need for the rights holder to submit future reports (subject to people’s ability to dispute such blocks if they have the necessary rights). Additional options available to rights holders include choosing to claim available ad earnings (allowing the video to stay posted and claiming a share of ad revenue), inserting in-stream advertisements on matching content, monitoring the content and tracking valuable metrics that rights holders can use to support their objectives, and inserting promotional opportunities into matching videos.
The IP Plan describes the Commerce & Ads IP Tool as follows:
The Commerce & Ads IP Tool is a streamlined interface for identifying and reporting infringing ads and commerce listings, such as those on Marketplace and Shops. Enrolled rights holders can search using keywords or by uploading images to find similar content and use filters to refine the results in a variety of ways, including by country, date and platform (e.g., Facebook or Instagram). Rights holders can also use a similarity search feature to find ads or commerce listings similar to content in their search results. Also available is the option to allow a single ad or all ads from a certain ad account so that ads from authorized partners or that have been previously reviewed won’t show up in future searches. If a rights holder identifies infringing content via the tool, the content can easily be reported for counterfeit, copyright or trademark infringement. The tool also allows rights holders to save their contact and trademark registration information, making the reporting process even quicker and more efficient. As Facebook continues to invest in making buying and selling online easier, we’re working closely with rights holders and developing additional features to help them protect their brands.
INSTAGRAM
Opening an account
As with Facebook, a person who wishes to use the social media services Meta provides under the name of “Instagram” (Instagram services) must first create an account. A person may do this by using his or her web browser to navigate to and click the “Sign up” button. The person will be prompted to enter his or her name, phone number or email address, date of birth, create a password, and then again click “Sign up”.[41] A person can also create an account by downloading the Instagram app on a mobile phone, and tapping “Create New Account”. That will direct the person to a button “Get Started” which, when tapped, bring up instructions on the screen requesting the person to enter his or her email address of phone number, after which the person taps “Next”. The person will be prompted to confirm the email address or phone number he or she provides, create a password, enter his or her date of birth and name, and create a username. The person will then be prompted to tap “I agree”.[42]
[41] Affidavit of B M Tunkis 17.07.2023, [34.a.]
[42] Affidavit of B M Tunkis 17.07.2023, [34.b.]
By clicking “Sign Up” on a web browser, or “I agree” on the mobile app, a person confirms his or her acceptance of the “Terms of Use”. [43] That expression refers to the terms of the agreement with which Meta requires a person who resides in Australia to agree before he or she can acquire the services Meta provides under the name of “Instagram”. The current Facebook terms of use (ITU) have been in effect since 26 July 2022.[44] I will refer later to relevant provisions of the ITU.
[43] Affidavit of B M Tunkis 17.07.2023, [17]
[44] Affidavit of B M Tunkis 17.07.2023, [13]
Using the Instagram Service
According to Ms Tunkis:[45]
Instagram users may interact with the Instagram service and with other accounts in a variety of ways. Principally, a user can: post photos, videos, or “Stories” (a “Story” is a photo or video post that can be viewed for a 24-hour period), “follow” other users, view other users’ posts, “like” other users’ posts (by clicking on a heart-shaped icon under the relevant post), comment on other users’ posts (by typing beneath a post which may or may not, depending on the posting user's settings, be visible to other users), and send messages to other users, among many other things.
Creating an Instagram account generates a “profile.” A user’s profile is where they can find their photos, videos, and settings on Instagram; view what they have shared; and see a list of the people they follow and who are following them. To post a photo, a user will click the “ . . . ” symbol and select “Post”, then upload or take a photo, click “Next” to add a caption, and select “Share.”
[45] Affidavit of B M Tunkis 17.07.2023, [36], [37]
The Instagram Terms of Use – enforcement - monitoring
The ITU largely mirror the FTS;[46] and Meta enforces and monitors a user’s compliance with the ITU in the same or substantially the same way it enforces and monitors a user’s compliance with the FTS. Further, Meta applies to Instagram the same approaches Meta applies to Facebook in relation to the protection of IP rights.
[46] Affidavit of B M Tunkis 17.07.2023, [47]; annexure “I”
THE AMENDED STATEMENT OF CLAIM
The amended statement of claim is a large document. It consists of 538 paragraphs, and about 375 pages of material that is annexed to it. Many of the paragraphs consist of assertions and submissions; and the material annexed to the amended statement of claim cannot be treated as a pleading. The amended statement of claim, however, reveals a coherent structure. It is structured around the making of eleven posts or sets of posts to the Page Mr Harrison maintained with Facebook and (in one case) Instagram. Each of these posts or sets of posts is described as a “matter complained of” (MCO), and is given a number to differentiate them. MCOs 1-5 constitute the defamatory conduct Mr Hoser alleges conveyed defamatory imputations of and concerning him and, in the case of MCO4, Mr Hoser alleges the infringement of his moral rights as an author. MCOs 6, 8-11 constitute the infringing and contravening conduct.
Before identifying each of the MCOs, and the claims Mr Hoser makes in relation to them, the amended statement of claim sets out in general terms the basis of the claims Mr Hoser makes in relation to each of the MCOs (emphasis added):[47]
48.All the publications subject of this Statement of Claim were published on Facebook or the associated platform Instagram (owned by the second respondent), except for the seventh matter complained of, for which the second respondent is not liable and does not have to defend anything.
49. The first respondent is liable in terms of the publications of all matters in this Statement of claim. As co-publisher and publisher in their own right, the second respondent is liable for all matters bar the seventh matter complained of.
50. To remove any doubt, the cause of action for each of these matters (bar matter number seven) was the publication by Harrison (the first defendant), including user generated comments by third parties and Facebook or an associated entity (The second defendant) of the relevant material and also that Harrison (under control of Facebook) allowed and moderated comments from his associates and both parties refused to remove the relevant material and content when asked to and to that extent both Harrison (first respondent) and Facebook (second respondent) was responsible for them, being actionable in law in the terms outlined in this Statement of Claim.
51. To make it clear, reference to Tony Harrison or any other person or entity publishing on a Meta platform (Facebook, Instagram), including by way of a user comment or similar, is also publishing on behalf of that platform and creating “content” for them, in effect making the platform a publisher. This remains the case, even if it is not explicitly spelt out anywhere in the following Statement of Claim.
52. The page owner or manager, (in this case being Tony Harrison), is also in control of user comments and post, with the power to delete the comments or block users if they see fit and so are also liable for those comments as is Facebook, being the platform in ultimate control. This remains the case, even if it is not explicitly spelt out anywhere in the following Statement of Claim.
[47] Amended Statement of Claim, [48]-[52]
In the remaining section of these reasons, I will identify and set out what may arguably pass as material facts; and I will refer to the material annexed to the amended statement of claim to the extent that the material adds particularity or clarity to the matters alleged in the amended statement of claim.
Mr Hoser, his companies, businesses and trade marks
Mr Hoser, who is known as “Snake Man®”:[48]
(a)is a licensed snake catcher, a reptile demonstrator in the State of Victoria, and trainer of dogs in snake avoidance;
(b)is the owner of the “Snake Avoidance” registered trade mark;
(c)has operated a wildlife rescue and conservation business for more than three decades;
(d)before 1989 registered in New South Wales the business name “Death Adder Services”;
(e)is the owner of the company Kotabi Pty Ltd, which uses the registered business name “Snakebusters” and dozens of registered trade marks, including “Snakeman”, “Snake catcher”, “Snakebusters”, “Reptile Party”, “Snake man” and “Reptile parties”.
[48] Amended Statement of Claim, [3]-[6]
On 1 October 2021 Mr Hoser transferred the trade marks to the third respondent, Ms Hoser, who licensed to Mr Hoser to use the trade marks as if Mr Hoser owned them, and with full legal rights to take legal action to protect them as if he were their owner.[49]
[49] Amended Statement of Claim, [6]
Mr Harrison
Mr Harrison:
(a)has been in the reptile business since about 2000;[50]and
(b)commenced doing reptile displays in 2008 under various names;[51] and
(c)has created hundreds of videos which he has uploaded to the server at Youtube.com.[52]
[50] Amended Statement of Claim, [22]
[51] Amended Statement of Claim, [22]
[52] Amended Statement of Claim, [23]
Mr Hoser and Mr Harrison are direct business competitors in Queensland for the provision of wildlife surveys, reptile displays, and snake handler courses.[53]
[53] Amended Statement of Claim, [34], [35]
Meta
Meta operates the platforms “Facebook” and “Instagram”, on which it permits users to create and manage Pages. Meta is in the position to control what is posted and remains on the Pages users create, such control including the ability to delete material that is posted by users on their Pages.[54]
[54] Amended Statement of Claim, [39]
Material posted on Facebook and Instagram is published by both user and Meta. Meta “as ultimate publisher and in ultimate control, directly responsible for what is published on their websites” and, as “host of the material, they are publisher and this commences at the time material is uploaded by the user to the platform”.[55]
“Matters complained of”
[55] Amended Statement of Claim, [40]
MCO1 – 15 March 2022 post (defamation)
MCO1 consists of comments made in relation to a post Mr Harrison made on his Page at 9:44 am on 15 March 2022.[56] The amended statement of claim attaches the relevant material. It consists of the Page named “Harrison’s Gold Coast and Brisbane Snake Catcher”.[57] The Page contains a Cover Photo of two people, one of which is Mr Harrison, together with a profile picture of Mr Harrison. There then follows a caption which states “Hows this guys caper” underneath of which is a photograph of (I infer) Mr Hoser holding two snakes, and a caption to the photograph, that had been posted by Mr Hoser. The caption to the photograph Mr Hoser posted was as follows:
[56] Amended Statement of Claim, [55]
[57] Amended Statement of Claim, appendix, pages 163-244
Reports today of an animal abusing woman being bitten by a Red-bellied Black Snake and rushed to hospital in Queensland are again a serious cause of concern.
Lucky for her, she survived the bite, but it is self evident, that the snake did come off second best! Black Snakes are known to be “non-biters” and only bite when subject to extreme aggravated abuse, in the form of mistreatment like . . . used to treat animals on his trashy tax-payer funded TV appearances.
People who copy . . . will end up like . . .
. . . .
It is called Karma!
Wild animals are tolerant of people, often to the point of extreme and no snake typifies this more than a Red-bellied Black Snake, that only bites as an absolute last resort!
It is often said you need a crow bar to get them to open their mouths.
See this photo as a routine example of the fact that they do not just randomly bite ordinary people.
Of course venomous snakes should not be handled at all, unless the handler is properly trained and licensed, which the Qld woman was not.
To learn more about Australia’s only internationally recognized snake handler courses, see the website at: and to learn about the critically important world leading wildlife conservation work of Snakeman Raymond Hoser, see: and remember, we alone have an unmatched perfect safety record with the world’s deadliest snakes spanning more than 50 years.
Mr Harrison’s sharing of Mr Hoser’s post generated a stream of comments about Mr Hoser, which included the following:
How disgraceful … He has alot of nerve considering he loves to be the centre of attention.... Total douche seriously. Nuff said. We all know U guys are the better people.
I did my snake catching course through him… absolute wanker- heard more about conspiracy theories then on how to handle snakes. He removes the venom sacks so he is able to handle them.
his snake's have had their venom glands and fangs removed. He free handles them all cause he know they cant harm him.. he is a flog.
how cruel is that! He shouldn’t be near any animals…ever!
Wrack off this story is a load of rubbish Steve Irwin was a great bloke treated animals well, your snakes have been defanged so you are cruel to animals and should be charged , red belly black snakes do bite and have killed animals and people ,we have them in our yard
Hoser is a known trouble maker within the industry. This guy has no idea what hes doing or talking about. Never has
His name is synonymous with "Taxonomic Terrorism" he regularly “publishes” articles trying to rename species after his kids, wife, dogs, etc. The epitome of hubris.
Mr Hoser contacted Mr Harrison and Meta shortly after the publication, and “several times after”, seeking the removal of the material, but it was not removed.[58] The amended statement of claim refers to an email “from Facebook” sent at 11:26 pm on 19 July 2022,[59] and alleges that this “non-removal of the material makes Facebook co-liable for the preceding publication and removes any potential defence of innocent dissemination beyond 19 July 2022”.[60]
[58] Amended Statement of Claim, [119]
[59] Amended Statement of Claim, [120]
[60] Amended Statement of Claim, [121]
The amended statement of claim alleges that the publication of the first matter complained of conveyed the following imputations (MCO1 imputations):[61]
[61] Amended Statement of Claim, [122]
(i) The Applicant is a disgusting person (that is, arouses revulsion in people Oxford Languages Dictionary)
(ii) The Applicant is a conspiracy theorist
(iii) The Applicant lacks skill to handle venomous snakes
(iv) The Applicant cannot catch venomous snakes
(v) The Applicant removes snakes fangs
(vi) The Applicant is foolish (that is, lacking good sense or judgement ... Oxford Languages Dictionary)
(vii) The Applicant tells lies (Present state of applicant)
(viii) The Applicant is cruel to animals (e.g. supa-gluing snakes mouths shut)
(ix) The Applicant is an animal abuser (Physical abuse in the form of attacking, e.g. defanging snakes mouths shut)
(x) The Applicant is a known trouble maker
(xi) The Applicant renames species already named
(xii) The Applicant is addicted to crack cocaine
(xiii) The Applicant a lunatic (that is, mentally ill (with a diagnosable disorder) ... Oxford Languages Dictionary)
(xiv) The Applicant fakes snake catcher jobs
(xv) The Applicant mishandles snakes (he knows how to, but chooses otherwise)
(xvi) The Applicant engages in extreme acts of animal cruelty (defanging and supa-gluing mouths in snakes)
(xvii) The Applicant is a contemptible person (that is, deserving scorn ... Miriam Webster Dictionary)
(xviii) The Applicant is afraid of the truth
(xix) The Applicant is a liar (past tense)
(xx) The Applicant defames people
(xxi) The Applicant is a bully
(xxii) The Applicant needs to be barred from the reptile business (because he is a lawbreaker… refer to earlier comments)
(xxiii) The Applicant is a mad person (that is, a crackpot (does crazy things but not diagnosed with a disorder) … thesaurus.com)
(xxiv) The Applicant rants in court
(xxv) The Applicant is unsafe with venomous snakes (Chooses to be unsafe with venomous snakes specifically)
(xxvi) The Applicant is a child abuser
(xxvii) The Applicant has ranted inappropriately in a court of law, (According to the Oxford dictionary Rant as a verb means “speak or shout at length in an angry, impassioned way.” and as a noun, “a spell of ranting; a tirade.”
As a consequence of the publication of the first matter complained of Mr Hoser has suffered harm and damage.[62]
[62] Amended Statement of Claim, [124-172]
MCO2 – 18 March 2022 post (defamation)
MCO2 consists of either Mr Harrison or some other person posting at 11:20 pm on 18 March 2022 on Mr Harrison’s Page a YouTube video that featured Mr Hoser, and comments that were posted on the Page in response to the video.[63] The still of the video depicts a photograph of Mr Hoser holding what appear to be two snakes. The comments included the following:
Hoser is an absolute joke within the herpetological community. Last I heard he had some of his licenses revoked or something like that. Tony, on the other hand, is a legend
From what I have seen of these two snake handlers they are totally different. Tony is a true environmentalist and educates people about snakes etc and Mr Hoser is like a fair ground showman, just like a cheap side show act and he seems to be very rough towards his animals. We need more Tony Harrison’s in this world and less show offs like Mr Hoser
Ray Hoser is the biggest disgrace in the Herp Community. Go Tony
But fierce snakes... Around your neck is just plain stupid. You can't really bandage your face if you get bit there
It’s okay if people are calling you “Snakeman” in the street, and it’s okay if you’re calling yourself that at the pub. But the moment you start using the name Snakeman in public Australian advertising and about snakes, youre infringing on Rays registered trademark. Trademarks are powerful, they can override business names and even personal names. Even if your given name at birth was Snakeman, Ray could have a case against you. Youtube took down this guys 800 videos for a reason, the law is in black & white.
bullshit dick head.....ray this is you with one of your fake accounts........ people google the results of what has happened to ray... and PS,, your chatting on the 800 you tube vids you toss,,, now 3500 vids,,,,, you tube just suspended them until they checked you out and seen you had major issues so they were quickly made public again....... enjoy your day
Oh FFs what a narcissistic loser … The world doesn’t revolve around you Dick head Change your nickname to something that suits you ……like wanker
[63] Amended Statement of Claim, [173]; appendix 2, pages 245-280
Meta was also the publisher of this material, “by virtue of the fact they hosted this on their platform and had in effect solicited the publication by allowing accounts (user generated content) on their platform”.[64]
[64] Amended Statement of Claim, [174]
Mr Harrison allowed and moderated comments from his associate and, to that extent, was responsible for them.[65]
[65] Amended Statement of Claim, [175]
MCO2 conveyed the following imputations (MCO2 Imputations):[66]
[66] Amended Statement of Claim, [209]
(i) The Applicant is laughed at by his peers
(ii) The Applicant is a tacky side-show act
(iii) The Applicant is an animal abuser (Physically attacks animals, e.g. defanging snakes)
(iv) The Applicant is a disgrace (because he is an animal abuser and a “cheap side show act”)
(v) The Applicant is stupid with snakes (because he abuses them for his side show)
(vi) The Applicant runs fake accounts online
(vii) The Applicant attacks Tony Harrison using fake accounts
(viii) The Applicant is a liar
(ix) The Applicant is out of control (uncontrollable by the authorities including by way of committing illegal acts or animal cruelty)
(x) The Applicant doesn’t care about snakes welfare (does not look after his pet snakes, e.g. not feeding or cleaning them)
(xi) The Applicant is a serial pest (Because he abuses animals, breaks laws and is not able to be controlled)
(xii) The Applicant makes false claims of scientific discovery
(xiii) The Applicant is a narcissist (that is, a person who has an excessive interest in or admiration of himself ... Oxford Languages Dictionary)
(xiv) The Applicant is jealous of others
(xv) The Applicant is an idiot (that is, a foolish person ... Miriam Webster Dictionary)
(xvi) The Applicant defangs snakes
(xvii) The Applicant commits animal cruelty (in the form of supa-gluing mouths shut)
(xviii) The Applicant an obnoxious jerk (that is, a disgustingly objectionable stupid person.
MOC3 – second 18 March 2022 post (defamation)
MCO3 consists of comments that were posted to Mr Harrison’s Page in response to Mr Harrison or some other person posting on that page at around 18 March 2022 the following email Mr Hoser had sent to Mr Harrison:
Notice of concern – Tony Harrison
By message and/or message/email.
Phone: . . . .
Dear Sir,
I (Raymond Hoser), have been made aware of a number of false and defamatory claims on your Facebook business page at These have generated at least 41 harassing phone calls in a single day from friends and associates of yourself [text missing]
family, our business and our critically important wildlife conservation work.
This is not the first time you have attacked us in this way. Your apparent lack of assets has prevented us from seeking to take legal action against you in the past, as well as a desire from us not to be diverted from our core wildlife conservation work.
Noting the significant damage to myself and my interests from your posts and comments they have generated on one or more Facebook pages you control, all of which you are responsible for, you are put on notice that my intent is to issue defamation proceedings against you.
Rather than divert us from our core work and to save you time in litigation, the following settlement offer is made, acceptance of which will end the matter.
1/ You remove all material about me in any way from your online properties and those you control.
2/ You undertake to not post such material again, or by proxy.
3/ You undertake not to use or misuse my family’s registered trademarks in any way or by proxy.
4/ You not get anyone to do what you have undertaken not to do.
5 You agree to permanently disable the email address [email protected] and anything else you may have that may use our registered trademarks words, with the exception of ongoing use of our words trademark “snake catcher” provided you do not use it in a manner contrary to our lawful interests, in line with a general permission we give all other snake handlers.
6/ You publish an apology on all your private and business pages and website home pages, at the top of each and “pin [missing text]
Mr Harrison or some other person posted this email under the caption: “Bahaha At least this time he didn’t ask for 21 million in damages”.
The comments this posting elicited included the following:[67]
Seriously up himself, isn’t he? Just another bully threatening legal action if you don't do what he wants. PS it’s only defamatory if it isn’t true!
Pssst guys he’s calling us trolls! so does this mean he’s going to go after every single snake catcher in Australia? Good luck mate. After briefly looking on his Facebook all I saw was a idiot handling venomous snakes wrong, all for “wild life conserv… See more
OMG this is extortion. I would be heading to the local police station. He is also trying to scam money from you.
He’s on some good drugs
So he abuses animals, disables them for entertainment, uses brookes accident to denigrade your family, accuse you of animal abuse when he's literally admitted what he does to reptiles, and then when he gets called out he tries to play the legal lingo g… See more
[67] Amended Statement of Claim, [218]-[230]
The amended statement of claim also refers to the following post:[68]
This person is very, very well known to herpetologists everywhere. He has caused so many issues in the discipline [sic] to the point where he has been written about by international experts. This article is from 2013. more
and then refers to a number of statements made in the blog referred to in this post.
[68] Amended Statement of Claim, [231], [232]
Mr Hoser contacted Facebook and Mr Harrison shortly after the publication of this material, seeking its removal because it was defamatory of Mr Hoser, but, Facebook, by an email its lawyers sent on 19 July 2022, refused to remove the first, second, and third matters complained of.[69] Facebook’s and Mr Harrison’s failure to remove the matters complained of makes each party liable of the publication of those matters, and removes any potential defence of innocent dissemination beyond 19 July 2022.[70]
[69] Amended Statement of Claim, [248]
[70] Amended Statement of Claim, [250]
MOC3, together with the linked webpages that formed part of the publication constituting MCO3, conveyed the following defamatory imputations (MCO3 Imputations) (numbering as in original):[71]
[71] Amended Statement of Claim, [251]
IThe Applicant is a bully (that is, a person who habitually seeks to harm or intimidate those whom he sees as vulnerable ... Oxford Languages Dictionary);
II. The Applicant is an idiot (that is, a person of low intelligence... Oxford Languages Dictionary);
III. The Applicant does not handle venomous snakes properly (as in he chooses not to, knowing there is a right and a wrong way);
IV. The Applicant plants snakes at petrol stations for media publicity;
V. The Applicant is an extortionist (that is, a person who tries to obtain something through force or violence ... Oxford Languages Dictionary);
VI. The Applicant is a scammer (that is, a person who commits fraud ... Oxford Languages Dictionary);
VII. The Applicant is not mentally correct (as in mentally ill … Oxford Languages Dictionary);
IX. The Applicant is a conceited person;
X. The Applicant a fool (that is, a person who acts unwisely or imprudently ... Oxford Languages Dictionary);
XI. The Applicant has no clue how to handle snakes (as in he does not know how);
XIII. The Applicant is an animal abuser (by mishandling them);
XIV. The Applicant disables animals for entertainment (by defanging them or supa-gluing their mouths shut, but not necessarily fessing up);
XV. The Applicant admits to being an animal abuser;
XVII. The Applicant is a taxonomic vandal (That is he engaged in, “the wilful destruction of, or damage to an existing taxonomic and nomenclatural framework.” Hoser (2015) AJH Issue 26, page 47, under heading "Taxonomic Vandalism defined" online at: The Applicant is a cheat (that is, a person who engages in the act or an instance of fraudulently deceiving ... Miriam Webster Dictionary);
XIX. The Applicant is unscientific (in that he does not follow accepted rules of science in his scientific publications);
XX. The Applicant’s scientific names should not be used because they have been gained by cheating the system;
XXI. The names of other people should be used in preference to those of the Applicant, because they have been gained by the applicant by cheating the system;
XXII. The Applicant puts lives at risk;
XXIII.The Applicant engages in improper conduct with female work experience students;
XXIV.The Applicant’s scientific names are not proper in terms of the ICZN rules;
XXV. The Applicant has broken the law;
XXVI.The Applicant has engaged in reckless conduct with a Tiger Snake (well known to be deadly) and is likely to be charged for doing so;
XXVII.The Applicant is a danger to the public (because “he'd mocked up” photos with a deadly snake in a public place);
XXVIII.The Applicant is being investigated by police for criminal conduct endangering lives with a deadly snake (being a “Tiger Snake”, well known as a deadly species);
XXIX. the Applicant is a liar;
XXX. The Applicant fraudulently inferred or claimed the snake in the images had been caught by him at the service station;
XXXI. The Applicant has put lives at risk with a deadly snake;
XXXII. The Applicant has admitted to faking snake catcher work;
XXXIII. The Applicant has broken the law;
XXXIV. The Applicant has engaged in reckless conduct with a Tiger Snake (well known to be deadly) and is likely to be charged for doing so;
XXXV. The Applicant is a danger to the public (because “he'd mocked up” photos with a deadly snake in a public place;
XXXVI. The Applicant cannot be trusted (because he generated a fake news story).
MCO4 - (defamation and infringement of moral rights)
The fourth matter complained of consists of the following post made as part of MCO3:[72]
This person is very, very well known to herpetologists everywhere. He has caused so many issues in the discpline [sic] to the point where he has been written about by international experts. This article is from 2013. more
[72] Amended Statement of Claim, [266]-[270]
The amended statement of claim alleges that this was a link to “a defamatory rant on another domain at . . . . vandalism-and-hoser/” written by Darren Naish (Naish Blog) in relation to which the amended statement of claim alleges as follows:[73]
[73] Amended Statement of Claim, [273]
(f) The blog opens by falsely accusing the Applicant of “taxonomic vandalism” and that “the fact is that he is very obviously, cleverly, ‘cheating’ his way through zoological nomenclature.”
(g) The blog further states: “Unlike the respected work produced by the experts of the past, however, Hoser’s is typically amazingly slapdash.”
and
“They are, frankly, shockingly and hilariously unscientific.”
and
“Kaiser et al. (2013) provide a long table in their paper that lists all the names that Hoser has published, together with their suggestions as to the recommended names that working herpetologists should use for the taxa in question. It is strongly advised that herpetologists boycott Hoser’s names and use the recommendations”
and
“As you’ll find out if you check the wikipedia page on Hoser, he’s been convicted and fined for demonstrating with venomous snakes in close proximity to the public and has also had his commercial wildlife demonstrator license suspended. Events are ongoing, with some dated to this month (June 2013). There are also the various, err, interesting videos online that show how Hoser interacts with female work experience students.”
and
“Nevertheless, the issue of taxonomic vandalism needs to be appreciated as widely as possible, and hopefully curtailed altogether.
UPDATE: this article was edited in March 2014 such that Hoser’s names were taken out of italics and put in quote marks. This was done since otherwise it looked as if the Hoser names were ‘proper’ scientific names that are used by others.”
SCHEDULE 2
PLEADED IMPUTATIONS AND RULINGS ON CHALLENGED PLEADED IMPUTATIONS
MCO1 Imputations
Para. No Pleaded imputation Ruling 122(i) Mr Hoser is a disgusting person (that is, arouses revulsion in people). Leave to replead the imputation by identifying:
· each of the asserted acts or conditions Mr Hoser alleges constitute the imputation that he is a disgusting person; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation.
122(ii) Mr Hoser is a conspiracy theorist. Not challenged. 122(iii) Mr Hoser lacks skill to handle venomous snakes. Leave to replead the imputation by identifying, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation. 122(iv) Mr Hoser cannot catch venomous snakes. Not challenged. 122(v) Mr Hoser removes snakes fangs. Challenge unsuccessful. 122(vi) Mr Hoser is foolish (that is, lacking good sense or judgement). Leave to replead the imputation by identifying:
· each of the asserted acts or conditions Mr Hoser alleges constitute the imputation that he is foolish; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation.
122(vii) Mr Hoser tells lies. Leave to replead the imputation by identifying, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation. 122(viii) Mr Hoser is cruel to animals. Leave to replead the imputation by identifying, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation. 122(ix) Mr Hoser is an animal abuser (Physical abuse in the form of attacking, e.g. defanging snakes mouths shut). Leave to replead the imputation by identifying, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation. 122(x) Mr Hoser is a known trouble maker. Not challenged. 122(xi) Mr Hoser renames species already named. Not challenged. 122(xii) Mr Hoser is addicted to crack cocaine. Not challenged. 122(xiii) Mr Hoser is a lunatic (that is, mentally ill (with a diagnosable disorder). Leave to replead the imputation by identifying:
· each of the asserted acts or conditions Mr Hoser alleges constitute the imputation that he is a lunatic; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation.
122(xiv) Mr Hoser fakes snake catcher jobs. Not challenged. 122(xv) Mr Hoser mishandles snakes (he knows how to, but chooses otherwise). Leave to replead the imputation by identifying, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation. 122(xvi) Mr Hoser engages in extreme acts of animal cruelty (defanging and supa-gluing [sic] mouths in snakes). Leave to replead the imputation by identifying, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation. 122(xvii) Mr Hoser is a contemptible person (that is, deserving scorn. Leave to replead the imputation by identifying:
· each of the acts or conditions Mr Hoser alleges constitute the imputation that he is contemptible; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation.
122(xviii) Mr Hoser is afraid of the truth. Challenge unsuccessful. 122(xix) Mr Hoser is a liar. Leave to replead the imputation by identifying, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation. 122(xx) The Applicant defames people. Not challenged. 122(xxi) Mr Hoser is a bully. Not challenged. 122(xxii) Mr Hoser needs to be barred from the reptile business. Not challenged. 122(xxiii) The Applicant is a mad person (that is, a crackpot (does crazy things but not diagnosed with a disorder)). Leave to replead the imputation by identifying:
· each of the acts or conditions Mr Hoser alleges constitutes the imputation that he is mad; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation.
122(xxiv) Mr Hoser is a mad person (that is, a crackpot (does crazy things but not diagnosed with a disorder)). Not challenged. 122(xxv) Mr Hoser is unsafe with venomous snakes (Chooses to be unsafe with venomous snakes specifically). Leave to replead on the basis that Mr Hoser provide the particulars referred to in r 15.19(1)(e) of the UCPR, namely, particulars of the part or parts of MCO1 on which he relies in support of the imputation. 122(xxvi) Mr Hoser is a child abuser. Not challenged. 122(xxvii) Mr Hoser has ranted inappropriately in a court of law. Not challenged. MCO2 Imputations
Para. No Pleaded imputation Ruling 209(i) Mr Hoser is laughed at by his peers. Not challenged. 209(ii) Mr Hoser is a tacky side-show act. Not challenged. 209(iii) Mr Hoser is an animal abuser (Physically attacks animals, e.g. defanging snakes). Leave to replead on the basis that Mr Hoser provide the particulars required by r 15.19(1)(e) of the UCPR, namely, particulars of the part or parts of MCO2 on which he relies in support of the imputation. 209(iv) Mr Hoser is a disgrace (because he is an animal abuser and a “cheap side show act”). Not challenged. 209(v) Mr Hoser is stupid with snakes (because he abuses them for his side show). Not challenged. 209(vi) Mr Hoser runs fake accounts online. Not challenged. 209(vii) Mr Hoser attacks Tony Harrison using fake accounts. Not challenged. 209(viii) Mr Hoser is a liar. Not challenged. 209(ix) Mr Hoser is out of control (uncontrollable by the authorities including by way of committing illegal acts or animal cruelty). Not challenged. 209(x) Mr Hoser doesn’t care about snakes welfare (does not look after his pet snakes, e.g. not feeding or cleaning them). Leave to replead on the basis that Mr Hoser provide the particulars required by r 15.19(1)(e) of the UCPR, namely, particulars of the part or parts of MCO2 on which he relies in support of the imputation. 209(xi) Mr Hoser is a serial pest (Because he abuses animals, breaks laws and is not able to be controlled). Not challenged. 209(xii) Mr Hoser makes false claims of scientific discovery. Not challenged. 209(xiii) Mr Hoser is a narcissist (that is, a person who has an excessive interest in or admiration of himself). Leave to replead on the basis that Mr Hoser provide the particulars required by r 15.19(1)(e) of the UCPR, namely, particulars of the part or parts of MCO2 on which he relies in support of the imputation. 209(xiv) Mr Hoser is jealous of others. Challenge unsuccessful. 209(xv) Mr Hoser is an idiot. Leave to replead the imputation by identifying:
· each of the acts or conditions Mr Hoser alleges constitute the imputation that he is mad; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation.
209(xvi) Mr Hoser defangs snakes. Challenge unsuccessful. 209(xvii) Mr Hoser commits animal cruelty (in the form of supa-gluing mouths shut). Leave to replead on the basis that Mr Hoser provide the particulars required by r 15.19(1)(e) of the UCPR, namely, particulars of the part or parts of MCO2 on which he relies in support of the imputation. 209(xviii) Mr Hoser is an obnoxious jerk (that is, an disgustingly objectionable stupid person. Leave to replead on the basis that Mr Hoser provide the particulars required by r 15.19(1)(e) of the UCPR, namely, particulars of part or parts of MCO2 on which he relies in support of the imputation. MCO3 Imputations
Para. No Pleaded imputation Ruling 251 I Mr Hoser is a bully. Leave to replead the imputation by identifying:
· each of the acts or conditions Mr Hoser alleges constitute the imputation that he is a bully; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation.
251 II Mr Hoser is an idiot. Leave to replead the imputation by identifying:
each of the acts or conditions Mr Hoser alleges constitute the imputation that he is a bully; and
as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation.251 III Mr Hoser does not handle venomous snakes properly (as in he chooses not to, knowing there is a right and a wrong way). Leave to replead on the basis that Mr Hoser will provide the particulars required by r 15.19(1)(e) of the UCPR, namely, particulars of the part or parts of MCO3 on which he relies in support of the imputations. 251 IV Mr Hoser plants snakes at petrol stations for media publicity. Not challenged. 251 V Mr Hoser is an extortionist. Leave to replead the imputation by identifying:
· each of the acts or conditions Mr Hoser alleges constitute the imputation that he is an extortionist; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation.
251 VI Mr Hoser is a scammer. Leave to replead the imputation by identifying:
· each of the acts or conditions Mr Hoser alleges constitutes the imputation that he is a scammer; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation.
251 VII Mr Hoser is not mentally correct. Leave to replead on the basis that Mr Hoser will provide the particulars required r 15.19(1)(e) of the UCPR, namely, particulars of the part or parts of MCO3 on which he relies in support of the imputations. 251 VIII Mr Hoser is an empty headed person. Not challenged. 251 IX Mr Hoser is a conceited person. Leave to replead on the basis that Mr Hoser will provide the particulars required by r 15.19(1)(e) of the UCPR, namely, particulars of the part or parts of MCO3 on which he relies in support of the imputations. 215 X Mr Hoser is a fool. Leave to replead the imputation by identifying:
· each of the acts or conditions Mr Hoser alleges constitute the imputation that he is fool; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation.
251 XI Mr Hoser has no clue how to handle snakes. Leave to replead on the basis that Mr Hoser will provide the particulars required by r 15.19(1)(e) of the UCPR, namely, particulars of the part or parts of MCO3 on which he relies in support of the imputations. 251 XII Mr Hoser is a made person. Not challenged. 251 XIII Mr Hoser is an animal abuser (by mishandling them). Leave to replead on the basis that Mr Hoser will provide the particulars required by r 15.19(1)(e) of the UCPR, namely, particulars of the part or parts of MCO3 on which he relies in support of the imputations. 251 XIV Mr Hoser disables animals for entertainment (by defanging them or supa-gluing their mouths shut, but not necessarily fessing up). Not challenged. 251 XV Mr Hoser admits to being an animal abuser. Leave to replead on the basis that Mr Hoser will provide the particulars required by r 15.19(1)(e) of the UCPR, namely, particulars of the part or parts of MCO3 on which he relies in support of the imputations. 251 XVI Mr Hoser is a lunatic. Not challenged. 251 XVII Mr Hoser is a taxonomic vandal. Not challenged. 251 XVIII Mr Hoser is a cheat. Leave to replead the imputation by identifying:
· each of the acts or conditions Mr Hoser alleges constitutes the imputation that he is a cheat; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation.
251 XIX Mr Hoser is unscientific. Not challenged. 251 XX Mr Hoser’s scientific names should not be used because they have been gained by cheating the system. Leave to replead on the basis that Mr Hoser will provide the particulars required by r 15.19(1)(e) of the UCPR, namely, particulars of the part or parts of MCO3 on which he relies in support of the imputations. 251 XXI The names of other people should be used in preference to those of Mr Hoser, because they have been gained by the applicant by cheating the system. Leave to replead on the basis that Mr Hoser will provide the particulars required by r 15.19(1)(e) of the UCPR, namely, particulars of part or parts of MCO3 on which he relies in support of the imputations. 251 XXII Mr Hoser puts lives at risk. Leave to replead the imputation by identifying:
· each of the acts or conditions Mr Hoser alleges constitutes the imputation that he is a bully; and
· as required r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation.
251 XXIII The Applicant engages in improper conduct with female work experience students. Not challenged. 251 XXIV The Applicant’s scientific names are not proper in terms of the ICZN rules. Leave to replead on the basis that Mr Hoser will provide the particulars required r 15.19(1)(e) of the UCPR, namely, particulars of the part or parts of MCO3 on which he relies in support of the imputations. 251 XXV The Applicant has broken the law. Not challenged. 251XXVI The Applicant has engaged in reckless. conduct with a Tiger Snake (well known to be deadly) and is likely to be charged for doing so. Not challenged. 251 XXVII The Applicant is a danger to the public (because “he'd mocked up” photos with a deadly snake in a public place). Not challenged. 251 XXVIII The Applicant is being investigated by police for criminal conduct endangering lives with a deadly snake (being a “Tiger Snake”, well known as a deadly species. Not challenged. 251 XXIX The Applicant is a liar. Not challenged. 251 XXX The Applicant fraudulently inferred or claimed the snake in the images had been caught by him at the service station. Not challenged. 251 XXXI The Applicant has put lives at risk with a deadly snake. Not challenged. 251 XXXII The Applicant has admitted to faking snake catcher work. Not challenged. 251 XXXIII The Applicant has broken the law. Not challenged. 251 XXXIV The Applicant has engaged in reckless conduct with a Tiger Snake (well known to be deadly) and is likely to be charged for doing so. Not challenged. 251 XXXVI The Applicant cannot be trusted (because he generated a fake news story). Not challenged. SCHEDULE 3
REPLEADING OF DEFICIENTLY PLEADED IMPUTATIONS
Para. No Pleaded imputation Material to be provided 122(i) Mr Hoser is a disgusting person (that is, arouses revulsion in people). Identify:
· each of the asserted acts or conditions Mr Hoser alleges constitute the imputation that he is a disgusting person; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation.
122(iii) Mr Hoser lacks skill to handle venomous snakes. Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation. 122(vi) Mr Hoser is foolish (that is, lacking good sense or judgement. Identify:
· each of the asserted acts or conditions Mr Hoser alleges constitute the imputation that he is foolish; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation.
122(vii) Mr Hoser tells lies. Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation. 122(viii) Mr Hoser is cruel to animals. Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation. 122(ix) Mr Hoser is an animal abuser (Physical abuse in the form of attacking, e.g. defanging snakes mouths shut). Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation. 122(xiii) Mr Hoser is a lunatic (that is, mentally ill (with a diagnosable disorder). Identify:
· each of the asserted acts or conditions Mr Hoser alleges constitute the imputation that he is a lunatic; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation.
122(xv) Mr Hoser mishandles snakes (he knows how to, but chooses otherwise). Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation. 122(xvi) Mr Hoser engages in extreme acts of animal cruelty (defanging and supa-gluing [sic] mouths in snakes). Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation. 122(xvii) Mr Hoser is a contemptible person (that is, deserving scorn). Identify:
· each of the acts or conditions Mr Hoser alleges constitutes the imputation that he is contemptible; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation.
122(xix) Mr Hoser is a liar. Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation. 122(xxiii) The Applicant is a mad person (that is, a crackpot (does crazy things but not diagnosed with a disorder)). Identify:
· each of the acts or conditions Mr Hoser alleges constitute the imputation that he is mad; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation.
122(xxv) Mr Hoser is unsafe with venomous snakes (chooses to be unsafe with venomous snakes specifically). Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation. MOC2 Imputations
Para. No Pleaded imputation Material to be provided 209(iii) Mr Hoser is an animal abuser (physically attacks animals, e.g. defanging snakes). Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO2 on which Mr Hoser relies to support the imputation. 209(x) Mr Hoser doesn’t care about snakes welfare (does not look after his pet snakes, e.g. not feeding or cleaning them). Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO2 on which Mr Hoser relies to support the imputation. 209(xi) Mr Hoser is a serial pest (because he abuses animals, breaks laws and is not able to be controlled). Not challenged. 209(xii) Mr Hoser makes false claims of scientific discovery. Not challenged. 209(xiii) Mr Hoser is a narcissist (that is, a person who has an excessive interest in or admiration of himself). Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO2 on which Mr Hoser relies to support the imputation. 209(xv) Mr Hoser is an idiot. Identify:
· each of the acts or conditions Mr Hoser alleges constitute the imputation that he is mad; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO1 on which Mr Hoser relies to support the imputation.
209(xvii) Mr Hoser commits animal cruelty (in the form of supa-gluing mouths shut). Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO2 on which Mr Hoser relies to support the imputation. 209(xviii) Mr Hoser is an obnoxious jerk (that is, a disgustingly objectionable stupid person). Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO2 on which Mr Hoser relies to support the imputation. MOC3 Imputations
Para. No Pleaded imputation Material to be provided 251 I Mr Hoser is a bully. Identify:
· each of the acts or conditions Mr Hoser alleges constitute the imputation that he is a bully; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation.
251 II Mr Hoser is an idiot. Identify:
· each of the acts or conditions Mr Hoser alleges constitutes the imputation that he is a bully; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation.
251 III Mr Hoser does not handle venomous snakes properly (as in he chooses not to, knowing there is a right and a wrong way). Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation. 251 V Mr Hoser is an extortionist. Identify:
· each of the acts or conditions Mr Hoser alleges constitute the imputation that he is an extortionist; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation.
251 VI Mr Hoser is a scammer. Identify:
· each of the acts or conditions Mr Hoser alleges constitute the imputation that he is a scammer; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation.
251 VII Mr Hoser is not mentally correct. Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation. 251 IX Mr Hoser is a conceited person. Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation. 215 X Mr Hoser is a fool. Identify:
· each of the acts or conditions Mr Hoser alleges constitute the imputation that he is fool; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation.
251 XI Mr Hoser has no clue how to handle snakes. Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation. 251 XIII Mr Hoser is an animal abuser (by mishandling them). Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation. 251 XV Mr Hoser admits to being an animal abuser. Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation. 251 XVIII Mr Hoser is a cheat. Identify:
· each of the acts or conditions Mr Hoser alleges constitute the imputation that he is a cheat; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation.
251 XX Mr Hoser’s scientific names should not be used because they have been gained by cheating the system. Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation. 251 XXI The names of other people should be used in preference to those of Mr Hoser, because they have been gained by the applicant by cheating the system. Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation. 251 XXII Mr Hoser puts lives at risk. Identify:
· each of the acts or conditions Mr Hoser alleges constitute the imputation that he is a bully; and
· as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation.
251 XXIV The Applicant’s scientific names are not proper in terms of the ICZN rules. Identify, as required by r 15.19(1)(e) of the UCPR, the part or parts of MCO3 on which Mr Hoser relies to support the imputation. SCHEDULE 4
PARTICULARS OF WILFULLY REFRAINING TO DO AN ACT AND SECONDARY LIABILITY
MCO Correspondence to and from Meta Effect of correspondence MCO5 Identify each communication between Mr Hoser and Meta which constitutes:
· a complaint or request by or from Mr Hoser to Meta about or in relation to misleading or infringing material having been posted to Mr Harrison’s Facebook Page; and
· a refusal by Meta to address the complaint or request made by Mr Hoser.
· Identify the post or posts in relation to which the communications to and from Meta related; and
· state the alleged effect of the correspondence.
MCO6 Identify each communication between Mr Hoser and Meta which constitutes:
· a complaint or request by or from Mr Hoser to Meta about or in relation to misleading or infringing material having been posted to Mr Harrison’s Facebook Page; and
· a refusal by Meta to address the complaint or request made by Mr Hoser.
· Identify the post or posts in relation to which the communications to and from Meta related; and
· state the alleged effect of the correspondence.
MCO7 Identify each communication between Mr Hoser and Meta which constitutes:
· a complaint or request by or from Mr Hoser to Meta about or in relation to misleading or infringing material having been posted to Mr Harrison’s Facebook Page; and
· a refusal by Meta to address the complaint or request made by Mr Hoser.
· Identify the post or posts in relation to which the communications to and from Meta related; and
· state the alleged effect of the correspondence.
MCO8 Identify each communication between Mr Hoser and Meta which constitutes:
· a complaint or request by or from Mr Hoser to Meta about or in relation to misleading or infringing material having been posted to Mr Harrison’s Facebook Page; and
· a refusal by Meta to address the complaint or request made by Mr Hoser.
· Identify the post or posts in relation to which the communications to and from Meta related; and
· state the alleged effect of the correspondence.
MCO9 Identify each communication between Mr Hoser and Meta which constitutes:
· a complaint or request by or from Mr Hoser to Meta about or in relation to misleading or infringing material having been posted to Mr Harrison’s Facebook Page; and
· a refusal by Meta to address the complaint or request made by Mr Hoser.
· Identify the post or posts in relation to which the communications to and from Meta related; and
· state the alleged effect of the correspondence.
MCO10 Identify each communication between Mr Hoser and Meta which constitutes:
· a complaint or request by or from Mr Hoser to Meta about or in relation to misleading or infringing material having been posted to Mr Harrison’s Facebook Page; and
· a refusal by Meta to address the complaint or request made by Mr Hoser.
· Identify the post or posts in relation to which the communications to and from Meta related; and
· state the alleged effect of the correspondence.
MCO11 Identify each communication between Mr Hoser and Meta which constitutes:
· a complaint or request by or from Mr Hoser to Meta about or in relation to misleading or infringing material having been posted to Mr Harrison’s Facebook Page; and
· a refusal by Meta to address the complaint or request made by Mr Hoser.
· Identify the post or posts in relation to which the communications to and from Meta related; and
· state the alleged effect of the correspondence.
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