This article aims to analyze the recent decision of the Federal Court of Australia in Musicki v Google LCC [2021] FCA 1393 in which the Court ordered that Google LCC give discovery to the Prospective Applicant of all documents that are or have been in the Google LLC’s possession. (defamatory)
Who is who?
According to the facts of the case, the Applicant (Dr. Korana Musicki) is a specialist vascular and endovascular surgeon with considerable international experience. Her referral basis in Australia is largely greater Melbourne and Victoria regions. She also treats patients from interstate and her market is Australia-wide. Further, the Applicant’s petition to Court deposes that an anonymous reviewer, described as “Dave Cross”, has posted a number of false and defamatory criticism of Dr. Musicki in Google Reviews. She contended in the Court document that David Cross was not a patient of hers. She complained in her Application that the name was a “made up pseudonym” and the person responsible had, “manipulated the Google platform to slander me”.
How the Court viewed the Applicant’s request
Her Honour Justice Mortimer said that “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 channels Google has represented to their customers should be used”.
What Applicant asked Google LLC to do?
According to the originating application and Dr. Musicki’s evidence, she had asked Google to remove the post or identify the author of the post. She further submitted that the imputation of the review are that she intentionally overcharges and misleads clients. Dr. Musicki also responded to Google that, “If you stand by that this is a real account with a real review, then I would request for the email 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”.
Was the Court satisfied by the Applicant’s evidence?
Justice Mortimer in wrapping up her judgment said that she is satisfied Google is likely to have the identification Dr. Musicki requires to commence proceedings, defamatory criticism, 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.
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Article Source: Defamatory
