APPLICANT-SURGEON SEEKS AN ORDER FOR DISCOVERY AGAINST RESPONDENT TO TRACK DOWN THE IDENTITY OF A PERSON WHO WROTE A DEFAMATORY POST AGAINST THE APPLICANT�
Colagrande v Telstra Corporation Limited [2020] FCA 1595 (4 November 2020)
This is a case involving the applicant-surgeon seeking an order for discover against the respondent who is an internet service provider in order to track down the identity of a person who wrote a defamatory pose against the applicant.
Facts:
The prospective applicant is a plastic surgeon, he was convicted by a jury of one count of indecent assault. The complainant was a patient on whom he had performed a breast enlargement operation.
On 12 December 2018, an anonymous user (the Reviewer) posted a review of the prospective applicant on “ratemds.com”, a website that enables users to post ratings and reviews of doctors. That review read: “After what he did to me, I can't believe he's still practicing…”
The prospective applicant determined, by running a search on “whatismyipaddress.com”, that the IP Address was hosted by the respondent, Telstra. The prospective applicant brought this application against Telstra, seeking an order under r 7.22 of the Rules that it give discovery to him of all documents that are or have been in its control relating to the description of the person or persons associated with the IP Address.
Although Telstra has not filed a submitting notice, it has indicated to the prospective applicant in email correspondence that it neither consents to, nor opposes, the application and that it does not wish to be heard in Court, with the result that the hearing of this matter was uncontested.
Issue: Should the court grant the order for discovery?
Law:
- r 7.22 of the Federal Court Rules 2011
Analysis:
The prospective applicant is not required to demonstrate the existence of a prima facie case against the prospective respondent. However, the foreshadowed claim must have some prospect of succeeding, in that it must be a cause of action known to the law which has a real, as opposed to fanciful, prospect of the grant of some remedy.
Here, the prospective applicant alleged that the review, extracted above, is potentially defamatory. A defamatory statement made online is taken to be “published” for the purposes of an action in defamation when and where it is downloaded. In the present case there was no express allegation that the purportedly defamatory review was downloaded or read in the NT or the ACT, however it was submitted that the website ratemds.com is accessible throughout Australia.
It can be accepted that the prospective applicant may be able to show the review conveyed imputations which would have tended to lower his reputation (either personal or professional) in the eyes of a reasonable member of the community.
It is axiomatic that Telstra, as the internet service provider associated with the IP address, is likely to have documents in its possession that would help ascertain the prospective respondent’s description. These documents may include, inter alia:
(a) The name of any person or persons operating from that IP address;
(b) Any phone numbers or addresses associated with that IP address; and/or
(c) Any location metadata associated with that IP address.
Conclusion:
It is appropriate to order Telstra to give discovery to the prospective applicant of all documents that are or have been in its control relating to the prospective respondent’s description.
