Federal Court Grants Order for Identifying Online Defamation Perpetrators

OUTCOME: Allowed

Federal Court of Australia

[RESPONDENT] v [RESPONDENT[COMPANY] [2021] FCA 485 File number: VID 124 of 2021

Judgment of: MORTIMER J

Date of judgment: 10 May 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 filed submitting notice pursuant to r 12.01(1) of the Rules – application granted

Legislation: Federal Court Rules 2011 (Cth) rr 7.22, 7.23, 7.27, 7.28, 12.01(1)

Cases cited: Hooper and [NAME] v Kirella Pty Ltd [1999] FCA 1584; 96 FCR 1 [NAME] v [NAME] [2020] FCA 126 McCrae v Reynolds [2015] FCA 529

Division: General Division

Registry: Victoria

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 15

Date of last submission/s: 4 May 2021

Date of hearing: 6 May 2021

Counsel for the [RESPONDENT]: [APPELLANT]

Solicitor for the [RESPONDENT]: [APPELLANT] 124 of 2021

BETWEEN: [RESPONDENT] Respondent

order made by: MORTIMER J DATE OF ORDER: 10 May 2021

THE COURT ORDERS THAT:

1. On or before 4pm on 9 June 2021, or such further or other time as the Court may order, [RESPONDENT[COMPANY] give preliminary discovery, by affidavit, of all documents which are or have been in its control relating to the identification of the description (as defined in the Dictionary to the Federal Court Rules 2011 (Cth)), by name, address or any other form of contact details, of the presently unknown person or persons who posted comments or statements in the thread located at the URL set out at [5] of the affidavit of Mr [NAME] sworn 7 May 2021 and which is reproduced as Annexure MS-2 to that affidavit.

2. Preliminary discovery pursuant to order 1 is limited to documents relating to the identification of the description of the presently unknown person or persons who posted comments or statements between 1 February 2020 and the date of these orders.

3. Preliminary discovery and inspection pursuant to order 1 is to be given in accordance with rr 7.22(2)(c), 7.27 and 7.28 of the Rules.

4. Liberty to apply on 48 hours' notice to amend, vary or substitute the orders made. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J: 1 The [RESPONDENT], Mr [RESPONDENT], by originating application pursuant to r 7.22 of the Federal Court Rules 2011 (Cth), seeks orders for preliminary discovery to require [RESPONDENT[COMPANY] to provide "all documents or things in its possession or control relating to the description of an unknown person" who posted allegedly defamatory comments under various pseudonyms in relation to Mr [RESPONDENT] and his [NAME]. 2 [RESPONDENT] filed a submitting notice pursuant to r 12.01(1) of the Rules on 16 April 2021. 3 For the reasons that follow, the application for preliminary discovery is granted. 4 Rule 7.22(1) of the Rules provides: 7.22 Order for discovery to ascertain description of respondent (1) A [RESPONDENT] may apply to the Court for an order under subrule (2) if the [RESPONDENT] satisfies the Court that: (a) there may be a right for the [RESPONDENT] to obtain relief against a prospective respondent; and (b) the [RESPONDENT] is unable to ascertain the description of the prospective respondent; and (c) another person (the other person): (i) knows or is likely to know the prospective respondent's description; or (ii) 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. 5 Orders are only sought pursuant to r 7.22, not r 7.23: see [1] of Mr [RESPONDENT]'s written submissions. Mr [RESPONDENT] relied on the affidavit of his solicitor, Mr [COUNSEL] sworn 16 March 2021. [RESPONDENT] filed a submitting appearance there were no objections to the affidavit, nor any contest about the facts to which Mr [NAME] deposes. There were some minor errors in the affidavit which resulted in the Court directing that a second affidavit be filed to correct those errors. A second affidavit was filed on 7 May 2021 with the errors corrected, and that is the version of Mr [NAME] affidavit that the Court takes as read in support of the application. 6 As to the correct approach to the making of an order under r 7.22, counsel for Mr [RESPONDENT] referred the Court to [NAME] v [NAME] [2020] FCA 126; McCrae v Reynolds [2015] FCA 529 and Hooper and [NAME] v Kirella Pty Ltd [1999] FCA 1584; 96 FCR 1. I have adopted an approach which is consistent with those authorities. 7 Mr [RESPONDENT] deposes that Mr [RESPONDENT] is a property developer who relies on the internet to attract customers across Australia. He deposes that Mr [RESPONDENT] wishes to commence a defamation proceeding in this Court against the makers of comments, which he alleges are defamatory of him, on a website described as "[NAME]". 8 Mr [RESPONDENT] deposes that: (a) [RESPONDENT] is registered and located in Australia. (b) [RESPONDENT] registered and owns the domain name "[NAME]". (c) The statements are visible to the public in the Australian Capital Territory, and in all of Australia including Victoria. (d) The allegedly defamatory imputations arising from the statements include that Mr [RESPONDENT]: (i) intentionally rips off people; (ii) is a criminal; (iii) steals from people and is a serial fraudster; and (iv) is an unscrupulous property developer who exploits and deceives his customers. (e) Mr [RESPONDENT] is concerned the comments are having an impact on his professional reputation and business, and he has sought psychological help due to the impact of the online bullying and harassment. 9 As I have noted, [RESPONDENT] filed a submitting appearance, and its only active participation in the proceeding has been in relation to securing agreement to the payment by Mr [RESPONDENT] of its costs of complying with any orders made by the Court. The parties have agreed on the substance of orders on those costs, which have been made separately. I accept the submissions of counsel for Mr [RESPONDENT] that [RESPONDENT]'s approach to the proceeding allows the Court more readily to accept Mr [NAME] evidence, and to infer that it is more likely than not [RESPONDENT] has documents which will meet the terms of the order for discovery which the Court has been asked to make. 10 The URL for the thread in which the statements are made is set out in Mr [NAME] 7 May 2021 affidavit, and the contents of the thread are reproduced as an annexure to that affidavit. It is not appropriate for those details to be reproduced again in these reasons for judgment. 11 As the authorities indicate, the Court need not be satisfied to the level of a prima facie case. I am satisfied that there may be a right for Mr [RESPONDENT] to obtain relief in relation to those statements, through a defamation proceeding; that is the standard set by r 7.22(1)(a). The comments in the thread refer extensively to locations in the State of Victoria in ways which lead me to be satisfied that Mr [RESPONDENT] may be able to establish that the statements are visible in Australia, and are being read by people in Australia. There is no basis to find he may not be able to establish they are available in the ACT, for the purposes of the jurisdiction of this Court. 12 Mr [RESPONDENT] deposes that Mr [RESPONDENT] is concerned the comments are having an impact on his professional reputation and business, and that although there has been a "campaign" against him since 2019, he is only seeking the identities of those who published statements about him over the last 12 months.

Accordingly, the orders made are limited to discovery of documents relating to statements made on or after 1 February 2020, the last statement being made in February 2021. 13 I am satisfied neither Mr [RESPONDENT], nor his solicitors have been able to ascertain the description of the makers of the statements, despite efforts which I am prepared to characterise, with some reservations, as reasonable. The evidence is that [NAME] wrote to [RESPONDENT] some time ago (in mid-2019) demanding that the posts be removed, and no further similar posts be permitted. The evidence suggests further posts continued to be made throughout the rest of 2020 and into 2021, the latest being in February 2021. 14 Mr [RESPONDENT] also deposes that after this letter, Mr [RESPONDENT] himself contacted [RESPONDENT] and sought removal of the comments, and the "identifying details" of the makers of the statements but could not obtain a "positive resolution", which is why these orders have been sought. That evidence is unchallenged. Particularly in the context of an ongoing course of conduct from 2019 through to February 2021, I accept that Mr [RESPONDENT] has made attempts to have the statements removed, and to have the person or persons making them stopped, and has himself tried to discover who has been making them, but now feels driven to take more formal action. I accept it is a significant step to enter a costs jurisdiction in a superior court to pursue a remedy and on the present unchallenged material he should not be criticised, nor denied the relief he seeks, for taking some time before taking that step. 15 For the purposes of r 7.22(1)(c), I am satisfied that [RESPONDENT] is likely to have access to documents that may contain the descriptions sought. I accept the submissions of counsel for Mr [RESPONDENT] that the Court can more readily draw that inference from the absence of a challenge by [RESPONDENT] to the preliminary discovery application, and from the parties' agreement as to the fixing of sums to be paid by Mr [RESPONDENT] to [RESPONDENT] for the costs of providing discovery, if it was ordered. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.

Associate: Dated: 10 May 2021