Anonymous Defamation on Social Media – How a Court Order can get you the Information, and the Role of the New Section 23A in the Defamation Act
What is Preliminary Discovery?
Whether it be through falsified online reviews or damaging posts on social media made under a fake name, anonymous defamation can greatly impact the reputation of oneself or their business.
To reveal the identity of an anonymous poster, prospective applicants can rely on rule 7.22 of the Federal Court Rules 2011 (Cth) and Reg 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), which allow the Court to compel an online service provider to supply identifying information when they are satisfied that:
1. The applicant likely has a right to relief against the prospective respondent;
2. the applicant is unable to ascertain the description of the prospective respondent; and
3. The service provider is likely to have access to identifying information for the prospective respondent.
In the Federal Court, preliminary discovery applications are accompanied by the standard application fee of $815. Therefore, it is important to make sure that an application is only made where it is necessary to pursue your claim.
This article examines some recent case examples of the preliminary discovery process, and the role of the newly implemented Section 23A of the Defamation Act.
Case Examples
Musicki v de Tonnerre [2023] FCA 222
This case involved the applicant, Dr Musicki, attempting to remove a damaging Google review left by an anonymous party. Following repeated correspondence with the service provider, Google steadfastly refused to remove the post or provide any identifying information for the user.
Dr Musicki then relied on a preliminary discovery application which successfully compelled Google to reveal the user’s identifying information. This showed that the poster was indeed acting under a pseudonym, and that their real identity was that of a disgruntled former student.
Importantly, Google’s reluctance to reveal this information encouraged the Court to allow an extension of time for Dr Musicki to bring proceedings against the respondent, highlighting the pressure being placed on digital service providers to not unnecessarily withhold identifying information.
Khan v Google LLC [2023] FCA 785
Mr Khan was set to run as an Australian Labor Party (‘ALP’) candidate in the Victorian state election on 26 November 2023. On 9 November 2023, an anonymous Gmail account sent an email to senior members of the ALP which contained numerous imputations as to Mr Khan’s character, and allegations of criminal conduct. Mr Khan contends that this email was responsible for the ALP later revoking their endorsement of him as a candidate.
In making a preliminary discovery application against Google, Mr Khan requested a substantial number of documents to ascertain the identity of the one who sent the email. Although the Court allowed this application, they maintained that the extent of Mr Khan’s request was too large – stating that:
“[The] categories of documents are ambiguous … and also go well beyond what is reasonably required to assist Mr Khan to ascertain the description of the [prospective respondent]”.
This demonstrates that the scope of documents requested in a preliminary discovery application must be reasonable and limited only to what is required.
New Section 23A of the Defamation Act – What does it do?
Section 23A was recently implemented into the Defamation Act 2005 (Vic) through the Justice Legislation Amendment (Integrity, Defamation and Other Matters) Bill 2024. This new section requires the Court to regard any “privacy, safety or other public interest considerations” when allowing an application for preliminary discovery.
Section 23A encompasses two categories of discovery. The first allows preliminary discovery of information to assist in identifying the poster of the relevant matter. The second category more broadly allows for discovery to assist in locating a physical or digital address for the poster of the matter, which is required to deliver a concerns notice in defamation proceedings.
This section aims to prevent any potential harm which may come to an anonymous poster if their identity is revealed. However, it has been noted by legal bodies such as the Law
Council of Australia that this change is largely unnecessary due to the broad discretionary jurisdiction already held by the Court.
Due to the limited nature of Section 23A, it is likely to act more as a guiding framework across jurisdictions rather than a decisive rule of law. It is however yet to be seen how the Courts will interpret this new section going forward.
At Elit Lawyers, we have over 60 years’ specialised defamation and media law experience, successfully representing individuals and companies in defamation and reputational matters. If you need expert advice on defamation, contact us personally.
Danielle Snell, Managing Partner & Co-Founder | [email protected] | 0401 812 885.
Robert McGirr, Partner & Co-Founder | [email protected] | 0413 944 023.
Article co-authored by Kieran Bull, Paralegal at Elit Lawyers.