Introduction

According to the Australian Small Business and Family Enterprise Ombudsman, approximately 97% of all businesses in Australia are small businesses, that is, businesses that employ less than 20 employees.

Most small businesses rely upon their good will, and thus, good reputation, both online and by word of mouth, to survive. It is for this reason that many small businesses depend upon the maintenance of good google reviews. But what happens when that business receives an anonymous google review that is negative? Often times, the business has an ‘idea’ of who left the review, but because more often than not, the Google review is published under a pseudonym, there is no certainty as to the identity of the publisher.

Unfortunately for most businesses, Google does not appear to place much emphasis on reviewing, and regulating, Google reviews, for one reason or another, and further, Google will rarely remove a Google review, unless it is extremely clear that it violates their own Google review policies. Some of the bases upon which Google will remove a Google review, include, but are not limited to:

Deceptive content and behaviour

• Fake engagement
• Impersonation
• Misinformation
• Misrepresentation

Inappropriate content and behaviour

• Harassment
• Hate speech
• Offensive content
• Personal information
• Obscenity and profanity
• Sexually explicit material
• Violence
• Dangerous and restricted content
• Terrorist content
• Off-topic

Therefore, the business is left with limited options. One of those options is to serve a concerns notice upon the suspected publisher (without sufficient certainty or proof that the Google review, was in fact, left by that person) or in the alternatively, to take further steps to identify the true identity of the publisher from Google.

Ordinarily, Google will not respond to, nor provide evidence, after it receives a letter requesting such information. Nevertheless, this is an important first step which must be undertaken.

Thankfully, Google will respond to a court order directing it to provide such information, and this can be achieved using the appropriate court’s rules, and because both Australia and the United States of America are parties to the Hague Convention, which allows for each other countries court processes to be served in the other country.

Removing a defamatory google review: the steps

Step 1: Report the Google Review to Google

Whilst it is highly unlikely Google will remove the Google review, this is a necessary first step as it is a component of ‘reasonable steps’ (which will need to be established at a later point in time), and further, it may result in the review being removed.

You report to, and seek the removal of, the Google review, from Google via:

1. Your Google My Business Dashboard;
2. Submitting a written request to Google via the appropriate method specified by Google; alternatively
3. You can seek Google’s assistance at https://x.com/GoogleSmallBiz

Step 2: Apply to the Court for appropriate orders

If Google does not remove the review, or refuses to do so, the next step is to ask an appropriate court (usually the Supreme Court of the relevant state or territory, or the Federal Court of Australia), to intervene.

Two (2) important things must be noted about this process:

1. You are asking the Court to compel Google to provide you with certain information capable of identifying the individual who published the Google review, such as:

• the email address and phone number used to create the account;
• the name provided to google to identify the account;
• any other email addresses or phone numbers associated with the account;
• other more general account information;
• the IP address from which the Google review was published using, and otherwise is usually or ordinarily used from; and
• location metadata.

2. If the application is granted, you will also need leave of the court (that is, permission), to serve the document on Google in the United States of America.

If leave is given, it will usually be given to serve the appropriate court documents under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, otherwise known as the Hague Convention.

Preliminary discovery applications, and service of originating applications themselves, overseas, are complicated court documents which require strict compliance with various rules, including international convention rules. Legal advice and representation is strongly recommend if you intend on obtaining such information from Google.

An overview of the process

Essentially, what is required in an application for preliminary discovery, that is, discovery of documents to aid in identifying a defendant or proposed defendant that a plaintiff has a prima facie cause of action against (that is, a claim on a surface level), is the following:

1. Does the plaintiff have a prima facie cause of action against someone?
2. Does the person have information which will assist in identifying the defendant or proposed defendant?
3. If so, does the person to whom the application needs to be served within a participating Hague Convention country? Or does another convention or law of that county permit the service of Australian judicial documents within its territory?;
4. If so, how is service permitted?;

Several cases have examined preliminary discovery applications in which leave was granted to serve Google in the United States, they include:

• Allison v Google LLC [2021] FCA 186
• Seven Consulting Pty Ltd v Google LLC [2021] FCA 203
• Kabbabe v Google LLC [2020] FCA 126
• Sydney Criminal Lawyers v Google LLC [2021] FCA 297

We examine the case of Kabbabe v Google LLC [2020] FCA 126 below.

Kabbabe involved an application for preliminary discovery and an application to serve that application outside of Australia pursuant to the Federal Court Rules 2011 (Cth).

It involved a dental surgery, run by Dr Matthew Kabbabe, who resided in Victoria and relied upon his online reputation to attract customers and clientele.

In that case, Murphy J granted the application, and found the requirements, as set out below, to have been made out. They were –

1. The application was accompanied by an affidavit which states the name of the foreign country where Google was to be served, the proposed method of service, and if the Hague Convention applied, the proposed method of service is permitted by the convention;
2. That the Federal Court of Australia had jurisdiction;
3. That it was type of proceeding permitted to be served outside of Australia; and
4. That the applicant (the plaintiff) had a prima facie case for the relief claimed in the proceedings.

Conclusion

If you or your business has been subject to a Google review, anonymous or otherwise, and you need help getting it removed and preventing it from occurring again, get in touch with Allen Law today, to see how we can help.

Phone:             (03) 7020 6563
Email:               enquiries@allenlawyers.com.au
Website:          www.allenlawyers.com.au

Disclaimer: This article is general in nature and does not constitute legal advice. Please contact Allen Law for advice tailored to your particular situation.