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Fake online reviews – serving an application for discovery on an overseas company

30 April 2021
Intellectual Property Patents & Trade Marks

Recent decisions offer useful guidance 3 min read

Ever wanted to get back at the author of that fake one-star review? Turns out you're not the only one. There has been a recent string of cases in the Federal Court involving Google LLC, in which applicants have sought information about the person responsible for a review they claim to be defamatory, misleading and deceptive, or both.

Decisions on recent applications brought by Seven Consulting, Allision, and Sydney Criminal Lawyers provide some useful guidance on the principles that will apply when seeking leave to serve an application for discovery on an overseas company.

 

Jump to

  1. Key takeaways
  2. The difficulty with internet reviews
  3. Service outside Australia

Key takeaways

  • In recent cases, the Federal Court has granted leave to seek information from Google via discovery about the identity of a reviewer who left a defamatory or misleading or deceptive review.
  • The court has been willing to find, for the purposes of establishing a prima facie case for discovery, that:
    • the existence of a publicly visible review is sufficiently likely to give rise to a cause of action for defamation; and
    • Google controls documents that will help ascertain the description of a reviewer.
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The difficulty with internet reviews

There are a few procedural and practical hoops to jump through to successfully bring a claim against an online reviewer:

  • Reviews are typically anonymous, or, at the very least, unlikely to contain the details needed to bring court proceedings against a person.
  • In these situations, information can be sought about a person from a third party (such as Google) that has documents that would help ascertain the person's description, via preliminary discovery under rule 7.22 of the Federal Court Rules.
  • Since Google is based in the US, leave must first be sought under rules 10.41-10.43 to serve an originating application outside Australia.
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Service outside Australia

Rule 10.43 of the Federal Court Rules sets out the requirements for leave to serve an application on a person outside Australia in accordance with the Hague Convention. To grant leave, the court must be satisfied of four matters:

1. Requirement: the application must be accompanied by an affidavit stating the name of the foreign country where the person is to be served, the proposed method of service and, if the Hague Convention applies, that it permits the proposed method of service.

Application in recent cases: in each of the recent cases, this requirement was met by service by international registered post to the USA, which is a contracting party to the Hague Convention.
2. Requirement: the court has jurisdiction in the proceeding.

Application in recent cases: the court has jurisdiction to hear a preliminary discovery application under rule 7.22
3. Requirement: the proceeding is of a kind mentioned in rule 10.42.

Application in recent cases: Rule 10.42 casts a broad net and includes any proceedings based on a cause of action arising in Australia. For the purpose of establishing an action in defamation, a defamatory statement is taken to be published when and where it is downloaded; where a review is visible to the public, that will be sufficient to establish the court is likely to have jurisdiction to hear the claim.
4. Requirement: the applicant has a prima facie case for all or any of the relief claimed in the proceeding.

Application in recent cases: a prima facie case was established on the evidence in each of the recent cases, having regard to the requirements of rule 7.22(1).

In particular, the judge in each case was satisfied that Google controlled documents that would help ascertain the description of the relevant reviewer.