Knock Knock: Federal Court Asks Who’s There

In a recent case, the Federal Court of Australia considered whether it should allow an application for pre-action discovery seeking the identity of a person who registered a domain name and published allegedly defamatory material on that domain name (Alleged Publisher).  The information was sought from two companies located in the United States who provide domain name registration services, and who had assisted the Alleged Publisher to register the domain.

The Facts

Timothy Boyd filed an urgent application for interlocutory injunctions, relating to material published online that he alleged was defamatory.  The material was published on the domain www.timboydaustralian.com, and included statements which alleged that Mr Boyd:

• was a fraud and a con man;
• was a party to fifteen million dollars in judgments;
• had borrowed over two million dollars from people which had not been paid back;
• had at least three restraining orders filed against him by women; and
• had sold a series of companies which did not exist.

The first and second respondents in the proceedings were Automattic, Inc (Automattic) and Knock, Knock WHOIS Not There Inc (Knock Knock).  Both corporations are located in the United States.  Automattic is a web development corporation, and Knock Knock is a company in the name of which Automattic obtains registration of websites, allowing the details of those who control the domain names purchased from them not to be disclosed.  The registrant of the domain name www.timboydaustralian.com obtained these services from the Respondents.

Decision

Mr Boyd sought:

• an interim injunction compelling the Respondents to disclose to the Applicant certain information it holds in respect to the website www.timboydaustralian.com (including but not limited to persons registering the domain and publishing the site);
• an interim injunction compelling the Respondents to suspend the domain www.timboydaustralian.com, and to suspend publication of the website published at this domain name; and
• an interim injunction to restrain the Alleged Publisher, once their identity is revealed, from publishing any further defamatory material in that forum about Mr Boyd.

Order 1 was treated by the Court as an order for preliminary discovery under r 7.22.¹ 

The Court held that Mr Boyd had made out an application under r 7.22, because:

• Mr Boyd may have a right to obtain relief against the prospective party, as this does not require proof of a prima facie case,² and the Court had jurisdiction due to the high possibility that the material was published in Australia;
• Mr Boyd did not know the identity of the person who controls www.timboydaustralian.com (whilst the Respondents argued that Mr Boyd should first have made enquiries directly to the Alleged Publisher, the Court rejected that submission); and
• the Respondents knew the name of the Alleged Publisher.

The Respondents argued that Mr Boyd should have first sought an equivalent order in the United States.  However, this was not a bar to the Court making an order pursuant to r 7.22.

The Court declined to make orders 2 and 3.  Justice Kerr noted that in addition to the usual principles that apply with respect to interlocutory injunctions, there is an even higher bar when it comes to defamation proceedings, stating that the power to grant interlocutory injunctions in defamation cases must be exercised with great caution, and only in very clear cases.³ 

The Court were not satisfied that there was a prima facie case to justify the grant of an interlocutory injunction, as there was limited evidence regarding whether any defences could be raised by the Alleged Publisher, and what loss Mr Boyd has suffered as a result of the publication.  However, Justice Kerr commented that cases such as this may lead policy makers to consider whether the Court should be given a larger capacity to make pull down orders in respect of matters published in the virtual world pending the determination of a proceeding, as “reputations can be damaged in an instant.”⁴

The Court ordered that the Respondents give discovery to Mr Boyd of all documents in their control that are directly relevant to identification of the name and address of the person responsible for www.timboydaustralian.com.

Lavan Comment

More and more material is being published online.  It can reach wide audiences very quickly, and should be acted upon quickly to minimise reputational damage as much as possible.  This case provides a useful insight into how a Court might deal with defamatory content published on a website where the author is unknown, showing the high bar which Courts place on allowing interlocutory injunctions in defamation proceedings, and the evidence that is required before a Court will consider allowing such injunctions.

If you require any assistance in bringing or defending defamation proceedings, contact Lavan’s Litigation and Dispute Resolution Team.