Google has declared on numerous occasions its commitment to protecting reviewer anonymity. A decision of the Federal Court of Australia earlier this year has poked a major hole in Google’s ability to preserve this anonymity. Here I set out the reasoning in Kabbabe v Google LLC [2020] FCA 126, and explain what this means for Discovery actions in international legal disputes.
The Wretched Review
The applicant in this court action, a Dentist, discovered an anonymous online review that had been left on Google about a visit to his clinic. The review states that the Dentist made the procedure “extremely awkward and uncomfortable”, that it was a “complete waste of time”, and that it was not “done properly”. The anonymous reviewer signed off by warning prospective patients that they must “STAY AWAY”.
The applicant maintains that this review is false and defamatory and asked that Google (based in California) provide information of the anonymous reviewer to allow legal proceedings to be initiated. Google refused. The applicant then applied to the Australian federal court for permission to serve Discovery proceedings on Google. This application required preliminary discovery of all documents in its possession, or under the control of Google, relating to the description of the person who wrote that review.
The Court’s Calculations
The court granted the application in accordance with the Federal Court Rules 2011 and the Hague Service Convention. The latter is the international agreement (which both Australia and the United States have signed up to), which sets the rules for serving documents across countries. Key elements of this decision included:
-The Hague Service Convention permits as an ‘alternative’ mode of serving documents, using registered post;
-The court was satisfied that the prospective applicant may have a right to obtain relief for defamation;
-The prospective applicant was unable to obtain a description of the prospective respondent, despite making reasonable inquiries (he had asked Google and they had refused several times);
-Another person knows or is likely to know that description, or has or is likely to have, or has had was likely to have had, control of a document that would help ascertain that description. It was held that Google was likely to hold a range of information that could identify the reviewer.
The information that might be held by Google, and be eligible for Discovery, included:
-The subscriber information for the reviewer’s account;
-The name of the users of that account;
-The IP address or addresses and associated information relating to that account;
-Any phone numbers associated with that account;
-Any location metadata associated with that account;
-Any other Google accounts associated with that anonymous online review.
Concluding Contemplations
There are two substantial lessons from this case:
First, for individuals, it is important not to assume that Google or any other corporation will preserve your anonymity. Increasingly we are seeing courts across the world requiring Google and other large organizations to release information to facilitate legal proceedings.
Second, for corporations, it is important to be aware that you may be required to respond to Discovery proceedings brought in other countries (the Hague Service Convention is of wide application).
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