FCA 904
Copyright and defamation – preliminary discovery to determine identity of prospective respondent
In this case, Justice Rofe made orders for preliminary discovery in favour of the International Wushu Federation (IWUF) against Google LLC, so that IWUF could ascertain the entity responsible for the operation of a YouTube channel, the Wushuleaks channel.
Google had been served with the originating application and supporting material in the US pursuant to leave earlier given by Justice Beach. Google did not file an appearance in the proceeding and indicated in correspondence with IWUF that it did not submit to the jurisdiction of the Court, but noted that if an acceptable form of orders could be agreed, it would be prepared to comply with those orders on a voluntary basis.
It is not clear to us how Google could take that position in respect of a properly served originating application under the Hague Convention, or could hope to avoid an order of the Federal Court of Australia which was made pursuant to such an originating application. Justice Rofe obviously saw no difficulty in making orders against Google and it will be interesting to learn if Google complies and, if it does not, how IWUF will respond.
IWUF is the international governing body for wushu (also known as kung fu). It is a not-for-profit organisation. Wushuleaks published cinematograph films and artistic works, which IWUF asserted were footage and photographs filmed and taken by IWUF of IWUF competitions and judging programs.
IWUF asserted that it had copyright in the works, and that Wushuleaks had engaged in defamation because the videos had commentary that carried imputations that IWUF is a corrupt organisation, that it manipulated competition results and that it corruptly accepts payments for favours and is involved in match fixing.
Justice Rofe held that the material before the Court demonstrated that IWUF may have a claim for relief for copyright infringement against the operator of the Wushuleaks channel in respect of the unauthorised reproduction of its copyright material including its footage and photographs and that IWUF held a reasonable belief in this respect.
Her Honour also held that the material demonstrated that IWUF may be able to show that the commentary in the videos posted on the Wushuleaks channel carries the imputations alleged and that they may tend to lower the IWUF’s reputation in the eyes of reasonable members of the community, and that IWUF held a reasonable belief in this respect.
Justice Rofe held that, as a not-for-profit organisation, IWUF was able to seek relief for defamation under the Civil Wrongs Act 2002 (ACT), and that through cross-vesting legislation, the Federal Court had jurisdiction with respect to a proceeding that would be within the jurisdiction of the Supreme Court of the Australian Capital Territory or the Supreme Court of the Northern Territory.
Her Honour also found that IWUF had made reasonable inquiries to ascertain the identity of the prospective respondent, being the operator of the Wushuleaks Channel, that those enquiries had not been successful, and that it was likely that Google has, or has had control of, a document that would assist IWUF to ascertain the description of the prospective respondent, the operator of the Wushuleaks Channel (since to create and operate a YouTube channel a user must sign in to the YouTube service by providing identifying details such as an email address, name and date of birth, and Google is the owner and operator of YouTube).
Her Honour therefore made orders for preliminary discovery under r 7.22 of the Federal Court Rules 2011 (Cth).