Lin v Google LLC

Lin brought an application against Google in the Federal Court seeking leave to serve an originating application on Google outside Australia. The application related to a negative review of Lin’s business that appeared on Google’s platform, and Lin wished to ascertain the identity of the person who posted the review. Google had offices in Australia but its principal place of business was in the United States. The legal issues were whether the Court had jurisdiction over Google, whether the application was of the kind mentioned in rule 10.42 of the Federal Court Rules 2011, whether service would be in accordance with the Hague Convention, and whether the application was accompanied by an affidavit in accordance with rule 10.43(3) of the Rules.

The Court held that the application was of the kind mentioned in rule 10.42, that service in accordance with the Hague Convention was appropriate, and that the application was accompanied by an affidavit in accordance with rule 10.43(3). In addition, Google was “another person” for the purpose of rule 7.22(1)(c)(ii) of the Rules, who “has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the prospective respondent’s description”. Google was likely to have the ability to control or interrogate its Google pages, including the Strathfield Autobody page and the historical data associated with it, so as to assist Lin in identifying the person with the username Lucas who posted the negative review. However, the Court was not persuaded that it was appropriate to make an order for substituted service permitting Lin to serve Google by email. The application for substituted service was effectively unsupported by any evidence. There was no evidence that Lin had attempted to serve Google by international registered post but that service in that manner had not been successful. The broad and unsourced general assertion by Lin’s solicitor that the COVID-19 pandemic was causing “delays and impracticalities associate[d] with international registered post” did not materially assist Lin’s application for substituted service.

The Court granted leave for Lin to serve Google in the United States by international registered post, with an acknowledgment of receipt to be provided by Google to Lin. Costs were reserved, and the matter was listed for a case management hearing on 11 October 2021.