An online presence is crucial for marketing in the 21st century because it reinforces brand identity and online presence, and offers the ability to strategically market to consumers. That’s not to mention that according to Google, some 97 percent of consumers search for local businesses online! But let’s face the reality, with online presence comes the harsh truth of what consumers think… and we all know that consumers can either make or break a business. And while most people who review a business seemingly leave their identity, some reviewers like to remain anonymous.
In the case of false and misleading or even defamatory online reviews, there is a plethora of issues confronting businesses wanting to protect their good reputation.
If the recent case of Kabbabe v Google LLC  shows us anything, there may be light for businesses trying to protect their reputation from those reviewers who prefer to hide their identity and lurk in the deep dark depths of the world wide web… especially when they leave a scathing, untruthful, misleading, deceptive and/or defamatory review.
Dr Kabbabe, a Melbourne based dentist, who attracts consumers through the internet was recently faced with this issue. An anonymous negative Google review was left by a user going by the name “CBsm 23” who left comments about the dental practice, which included claims that their experience was “extremely awkward and uncomfortable” and the procedure was “a complete waste of time”.
As is usual practice, Dr Kabbabe asked Google to remove the review, however, Google declined. Therefore, Dr Kabbabe requested Google to provide the reviewer’s personal details so as to commence defamation proceedings. As a direct response, Google sharply tried to argue that they “did not have any means to investigate where and when the ID was created”.
Dr Kabbabe then rightfully applied to the Federal Court of Australia to ensure Google provided the personal information of the reviewer to commence defamation proceeding as the review was apparently having a profound, adverse effect on the dental practice.
In most cases such as this, the process usually takes several months due to the requirement to lodge and process the documents in more than one country. Despite this, Justice Murphy of the Federal Court, in considering whether Google could be validly served in accordance with the 1965 Hague Service Convention, noted a loophole in article 10(a) which purportedly allows originating documents to be sent by international registered post. This right is further reinforced in rule 10.43(2) of the Federal Court Rules 2011 (Cth).
This loophole was instrumental in speeding up the proceeding and compelling Google to comply with the request to supply information. Accordingly, Justice Murphy granted leave for Dr Kabbabe to serve Google by international registered post, seeking information about the anonymous reviewer. Google was subsequently compelled to provide the reviewer’s name, IP address, location and other relevant metadata including phone number.
In concluding, Justice Murphy made various notable findings including:
That the publication of the alleged defamatory review made by CBsm 23 is taken to have occurred where the words were heard, read or downloaded, and therefore the defamation had occurred in Australia;
That Dr Kabbabe had a likely case for defamation against CBsm 23;
That Dr Kabbabe had taken all reasonable measures or steps to ascertain CBsm 23’s identity and information;
That Google was likely in possession or control of CBsm 23’s information;
That Dr Kabbabe would be able to use the information in Google’s possession in legal proceedings as against the anonymous reviewer.
For so long Google has indicated that defamation laws and cases such as this could lead to a “suppression of information” and that by unmasking anonymous reviewers means there is little to no protection for those who want to provide information about a business, but are afraid to do so.
In our view, Google has a duty of care to protect businesses and thereby do everything as is reasonably necessary to listen to businesses when they are faced with false reviews and seek help. This is especially so when false, misleading, deceptive, or defamatory reviews come from people (who may not necessarily be consumers at all) trying to do harm to your business and hide in the deep dark depths of the world wide web.
Whatever the case, perhaps Google LLC should spend more time considering the law in Australia as it is very different to that in the United States of America. Otherwise, as cases such as this become more commonplace, giants like Google are likely to face further Court orders forcing them to release the identify of people behind alleged online misleading, deceptive or defamatory reviews. Further, if this case highlights anything, any prudent lawyer in the future will be asking Google for costs where it forces them into unnecessary litigation.
Anonymous online reviewers are not exempt from legal proceedings. The Courts are increasingly willing to exercise their power to force online giants like Google (or even Facebook for that matter) to disclose anonymous reviewers’ personal information, for the purpose of legal proceedings.
Click here for more information on injurious falsehood, defamation (civil and criminal aspect) and misleading and deceptive conduct.
Disclaimer: This publication is not intended to be comprehensive nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication.
© Scott A. Green, Associate Solicitor
  FCA 126.