Musicki v Google LLC

[2021] FCA 1393

FEDERAL COURT OF AUSTRALIA

Musicki v Google LLC [2021] FCA 1393  

File number:

VID 480 of 2021

Judgment of:

MORTIMER J

Date of judgment:

5 November 2021

Catchwords:

PRACTICE AND PROCEDURE – application for preliminary discovery pursuant to r 7.22 of the Federal Court Rules 2011 (Cth) – allegedly defamatory comments made online – respondent did not appear – application granted

Legislation:

Federal Court Rules 2011 (Cth)

Cases cited:

Heath v LawTap Pty Ltd [2021] FCA 485

International Wushu Federation v Google LLC [2021] FCA 904

Division:

General Division

Registry:

Victoria

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

13

Date of hearing:

5 November 2021

Solicitor for the Prospective Applicant:

Matrix Legal

ORDERS

VID 480 of 2021

BETWEEN:

KORANA MUSICKI

Prospective Applicant

AND:

GOOGLE LLC

Prospective Respondent

ORDER MADE BY:	MORTIMER J
DATE OF ORDER:	5 NOVEMBER 2021

THE COURT ORDERS THAT:

1.Google LLC give discovery to the Prospective Applicant of all documents that are or have been in Google LLC’s possession, power or control relating to the description of the prospective respondent, namely:

pseudonym: Dave Cross and user ID:

link to review:

to rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth) the Prospective Applicant shall serve this order, and the Court’s reasons for judgment once published, upon Google LLC in the United States of America, in accordance with Article 10(a) of the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters” done at The Hague on 15 November 1965, by sending it by international registered post, with an acknowledgement of receipt to be provided to the Prospective Applicant, to the Respondent’s address for service at:

Google LLC
c/o Custodian of Records
1600 Amphitheatre Parkway
Mountain View, California 94043
United States of America

and by sending it by email to Google LLC at [email protected] and [email protected]

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Delivered Ex Tempore and Revised)

MORTIMER J:

1. The applicant, Dr Korana Musicki, has applied, by an originating application, dated 25 August 2021, for orders requiring Google LLC to provide preliminary discovery, pursuant to rule 7.22 of the Federal Court Rules 2011 (Cth), of all documents or things in its possession or control relating to the description of an unknown person to be the prospective respondent, who posted, allegedly, defamatory comments about her.

2. No notice of address for service for Google has been filed with the Court and no legal representative for Google sought to appear at the hearing. An affidavit of service has been filed. It was read on the application. In that affidavit, Mr Stanarevic, the applicant’s solicitor, deposes that, pursuant to orders made by the Court on 13 September 2021, he posted to Google LLC on 27 September 2021, by international registered post, the following documents: a copy of the Court’s orders, the originating application and his affidavit, both filed on 25 August 2021. He deposes that he also emailed the documents, as the Court’s orders permitted the applicant to do, to Google’s email address, [email protected]. In that affidavit of service, Mr Stanarevic deposes:

   It is not unusual for Google LLC to not respond to confirmation of receipt of material in my experience but only after repeated email attempts once a court order is issued and posted which seeks the production of material for the purposes of preliminary discovery.

3. On the hearing of the application, the applicant also read the affidavit of Mr Stanarevic, affirmed 24 August 2021. In Heath v LawTap Pty Ltd [2021] FCA 485, I set out the applicable approach to an application such as this and some of the applicable authorities. I refer to and adopt what I said at [6], concerning the applicable authorities, and at [11], about the applicable threshold of satisfaction. To these authorities, I add the recent decision of Rofe J in International Wushu Federation v Google LLC [2021] FCA 904, to which Mr Stanarevic referred the Court.

4. The three basic requirements are that the applicant satisfies the Court that:

   (a)there may be a right for the prospective applicant to obtain relief against a prospective respondent; and

   (b)the prospective applicant is unable, notwithstanding having made reasonable enquiries and taken any other steps reasonably required in the circumstances, to ascertain a description of the prospective respondent; and

   (c)another person, the respondent to the application for preliminary discovery, knows or is likely to know that description, or has or was likely to have had, control of a document that would help ascertain that description.

5. In his first affidavit, Mr Stanarevic deposes to the following facts, which I accept for the purposes of this application. Dr Musicki is a specialist vascular and endovascular surgeon and holds the relevant qualifications for that position. She has considerable international experience, although her referral basis is largely greater Melbourne and Victoria. However, she treats patients from interstate and her market is Australia wide. She has invested in and developed a specialist website for prospective patients and referring doctors.

6. Dr Musicki has invested in search engine programming which is designed to direct prospective enquirers to her website when her name is entered in a Google search. Mr Stanarevic deposes that an anonymous reviewer, described as “Dave Cross”, has posted a number of false and defamatory criticisms of Dr Musicki in Google Reviews. He annexes to his affidavit a copy of those reviews. In fact, from the annexures, it appears to be a single review, which has been posted at several different locations and may have appeared on several different searches. As Mr Stanarevic submitted, it is a review which has remained in the public domain since 2020. Dr Musicki promptly contacted the Google My Business team to ask for the post to be removed.

7. She contended that Dave Cross was not a patient of hers. She complained that the name was a “made up pseudonym” and that the person responsible had, “manipulated the Google platform to slander me”. She claimed to be able to discern this from the language used in the post. There are several lines of her communication to Google which are redacted in the copy of the annexure filed with the Court. That may be, I infer, because Dr Musicki holds a suspicion about who the culprit might be, but she requires some objective confirmation, hence this application.

8. In correspondence annexed to Mr Stanarevic’s affidavit, Google responded, making it clear it did not consider the review breached its policies so it would not remove the post. In one of her replies, Dr Musicki responded to Google in the following terms:

   If you stand by that this is a real account with a real review, then I would request for the email address of Dave Cross. It therefore means he is a real person, and therefore a real patient. And it is my duty of care, as his real doctor, to follow him up. As I don’t have any record of him, I am unable to do this without the contact point which only you can provide.

9. The evidence is that Google has stopped giving any specific responses to Dr Musicki’s continued requests to identify the author of the post and or remove the post. Mr Stanarevic deposes that Dr Musicki is distraught and upset, and has sought advice from the Royal Australian College of Surgeons, and the Australian and New Zealand Society for Vascular Surgery, as well as other professionals, about what she could do to remove this review. The level of Dr Musicki’s adverse reaction is apparent from her own emails, which are in evidence. I accept this is a matter of great concern to her, in terms of her professional reputation. It is submitted that the imputations of the review are that Dr Musicki intentionally overcharges and misleads clients. As Dr Musicki herself pointed out in her emails to Google, there may also be an imputation that she pressures clients into having surgery they do not really need or want.

10. I am satisfied, on the evidence, that Dr Musicki has demonstrated she may have a right to relief, by way of proceedings for defamation. Having read the Google review and considered the evidence on which the applicant relies, I am satisfied that threshold is met. There is ample evidence Dr Musicki has made reasonable enquiries to try to ascertain the identity of the prospective respondent, having ascertained she did not have a patient by that name. She has done all she could be expected to do, in relation to an international corporation such as Google. She has used the channels Google has represented to their customers should be used.

11. I am satisfied Google is likely to have the identification information Dr Musicki requires to commence proceedings, namely the description of the real identity of the reviewer, or has or is likely to have control of a document that would help her ascertain that description. 

12. Further, I accept Mr Stanarevic is an experienced practitioner in this area and I accept his evidence that in his experience, Google has a policy or practice of not responding to requests of this kind without a Court order.  As I have in relation to the question of service, I also accept his evidence that it is appropriate to order service of the Court’s order, not only by international registered post, but also by email to Google’s dedicated civil proceedings email.

13. For those reasons, the orders sought in the application will be made.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.

Associate:

Dated:       10 November 2021