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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Kocwa v Twitter Inc  QDC 252
2275 of 2020
District Court at Brisbane
2 October 2020
25 September 2020
DEFAMATION – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – where a Twitter user made publications about the applicant on Twitter – where posts made by Twitter user had been re-tweeted by other Twitter users – where the applicant seeks an injunction to remove existing posts and restrain the respondent from publishing or causing to be published further posts – whether Twitter Inc is the proper respondent – whether applicant has affected service on the respondent – whether prima face case made out – whether balance of convenience is in favour of the grant of an injunction
Acts Interpretation Act 1954 (Qld), s 39(1)(b)
Uniform Civil Procedure Rules 1999 (Qld), r 107, r 128,
r 129D, r 129F, r 129H
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, applied
AMCI Pty Ltd (ACN 124 249 485) v Corcoal Management Pty Ltd (ACN 094 680 636) & Ors  QSC 50, applied
A Nelson for the applicant
No appearance for the respondent
Whitehead and Associates Solicitors for the applicant
- The applicant, Eddie Kocwa, seeks injunctive relief and damages for defamation resulting from the publication of alleged defamatory material on the internet platform of the respondent, Twitter Inc, both within and outside Australia.
- The application was commenced by way of an originating application filed on 11 August 2020. The application sought injunctive relief against Carrick Ryan and Twitter Inc, requiring them to remove any reference to the applicant currently available for download from the worldwide web at certain specified website addresses and restraining them from publishing or causing to be published, encouraging, requesting or enabling to be published by any means whatsoever any statements, comments or images which suggest that the applicant is a racist or a white supremacist.
- Mr Ryan was named as the second respondent. The applicant alleged the second respondent was the person who first uploaded the alleged defamatory material on the Twitter platform. Twitter Inc was named as the first respondent. The applicant alleged that Twitter Inc, in providing the platform, facilitated the publications.
- The tweets by the second respondent have been re-tweeted a number of times using the Twitter platform and it is alleged the publications are available for download at twitter.com website addresses.
- The originating application did not seek any other relief.
- The solicitor for the applicant has sworn that on 5 August 2020 the second respondent provided his email and physical address for service.
- By letters dated 5 August 2020, the solicitors for the applicant sent a Concerns Notice requesting the second respondent remove an article posted on a website “threadreaderapp.com” on 7 September 2019 pursuant to s 14 of the Defamation Act 2005 (Qld) to the addresses provided by the second respondent. A letter was also sent to the first respondent to a postal address in San Francisco and to an email address at [email protected] requesting it remove four tweets posted on 7 and 8 September 2019 showing a photograph of the applicant and naming him.
- On 6 August 2020, the second respondent posted on both Facebook and Twitter social media platforms, that he had been contacted by lawyers. The post did not name the applicant, nor his solicitors, or publish material that could lead to their identification. the second respondent indicated in the post that “people are going to hear a lot more about this person and the political actors that are involved with him.”
- On 11 and 12 August 2020, the solicitors for the applicant sent the sealed originating application and sworn affidavits to the respondents.
- The second respondent sent an email dated 13 August 2020 to the solicitors for the applicant denying that he had uploaded any content to the threadreaderapp.com website as alleged but, as an act of good faith, said he would organise to have the article removed as soon as possible.
- On 13 August 2020 the solicitors for the applicant noted that the original post was in fact on both Twitter and on Facebook, and a request was made to the second respondent to remove those posts.
- On the return date of the application on 18 August 2020, there was no appearance by either respondent. In an affidavit by Mr Whitehead, as the solicitor for the applicant, sworn 17 August 2020, Mr Whitehead confirmed that he had checked both Twitter and Facebook and the posts were still being broadcast at the specified Twitter and Facebook addresses of the second respondent. The offending post had been removed from the website, threadreaderapp.com.
- On the first return date, I questioned this Court’s jurisdiction to grant the interlocutory injunction sought in the originating application, in circumstances where the injunctive relief sought was unsupported by a separate claim for relief pursuant to s 68 of the District Court Act 1967 (Qld).
- At the hearing, counsel for the applicant accordingly made a request for leave to amend the originating application so as to include a claim for damages and that the application be adjourned to 21 August 2020. That order was made.
- On 18 August 2020, an amended originating application was filed on behalf of the applicant. The amended application included a claim for damages, including aggravated damages, as part of the relief sought. The amended application did not limit the quantum of damages to the jurisdiction of this court; though a draft statement of claim which had been attached to an earlier affidavit of the solicitors for the applicant had done so.
- At the adjourned hearing on 21 August 2020, there was again no appearance by either respondent.
- At that hearing, an affidavit by the applicant sworn 19 August 2020 was read which stated that whilst he had been concerned about the posts he was not concerned to the point where he considered that ne needed to involve the courts until he was advised, firstly by a customer of his business in February 2020 that the customer could not order goods from him given the presence of “stuff on the internet that shows [the applicant] as a white supremacist”, and then by a friend of his on or about 4 July 2020, that he could not be photographed with him because of “stuff on the internet about [the applicant] being a racist.”
- On that date a limited injunction was granted until 4:00pm on 28 August 2020 restraining the second respondent from publishing, causing to be published, encouraging, requesting or enabling the publication by any means whatsoever of any statement, comments or images which suggest that the applicant is a racist or a white supremacist. The application was otherwise adjourned to 28 August 2020.
- On that date, an order was also made that the amended originating application be treated as a claim.
- By the adjourned hearing date of 28 August 2020, the second respondent had confirmed his agreement to remove the posts the subject of the originating application and the applicant had agreed that, upon the removal, the proceedings against the second respondent would be discontinued. As a result, on the hearing of the application on 28 August 2020, the applicant did not seek any further orders against the second respondent.
- At that hearing, counsel for the applicant sought the adjournment of the application against the first respondent to Friday, 11 September 2020 to enable service to be effected on the first respondent, including service by email to [email protected]. Leave was granted to the first respondent to appear on the return date by video link or telephone (to be pre-arranged with the Court).
- The notice of discontinuance against the second respondent was filed on 11 September 2020.
- At the hearing on 11 September 2020 there was no appearance by the respondent. An affidavit was filed by the solicitor for the applicant sworn 10 September 2020 detailing the steps taken to serve Twitter Inc with the material, including the amended originating application, supporting affidavits and orders made indicating the next return date of the application. The affidavit of Mr Whitehead attached a document entitled “Proof of Personal Service” which had been completed by the process server in California appointed on behalf of the applicant to serve the material upon Twitter Inc.
- At the hearing, I raised with counsel questions about Twitter’s involvement and service, and ultimately, counsel for the applicant requested that the matter be adjourned until Friday 25 September 2020.
Hearing on 25 September 2020
- At the hearing, in addition to the affidavits previously read and filed at the earlier hearings of the application, a further affidavit of the applicant sworn 19 August 2020 was read together with an affidavit of the solicitor for the applicant sworn 24 September 2020.
- In his further affidavit, Mr Whitehead deposed to having formed a view that the authorised representative of the respondent had not been served and to having organised a process server to re-affect service. Mr Whitehead annexed a copy of a document headed, “Secretary of State, Statement of Information (California Stock, Agricultural Cooperative and Foreign Corporations).” It purported to be a document signed by a person who completed the form, but there is no indication of the position or status of that person. It stated as the Corporation Name “Twitter Inc”, and gave an address of the business and the name and address of its chief executive officer, secretary and chief financial officer; all at 1355 Market Street Suite 900, San Francisco. Annexed was also a document headed, “California Corporations Code Section 1505 Certificate”, which appeared to give an address for service of process; though it does not say for whom.
- The affidavit also included a document, apparently signed by a process server, that the process server had served various documents on 15 September 2020 on a person said to be an authorized representative for the registered agent of Twitter Inc at the address nominated in the certificate referred to earlier. The affidavit exhibited various sections taken from the California Corporations Code and one from the California Rules of Civil Procedure.
- On the hearing, there was no appearance on behalf of the respondent, Twitter Inc, nor had the solicitors for the applicant received any communication from Twitter Inc or one of the Twitter entities or anyone acting on their behalf.
Proper Respondent and Service
- The material which had been filed in support of the application did not attach any evidence relating to the Twitter platform or the entity or entities behind it. There was not even a certificate of incorporation in relation to Twitter Inc. In his submissions, counsel for the applicant had stated that the respondent was a Delaware Corporation with its head office in San Francisco, California, USA, but the Court did not have before it any evidence on that subject.
- There was no expert evidence as to the laws of California, nor the meaning, accuracy or relevance of any of the documents attached to the affidavit of Mr Whitehead, including the declaration made by the process server.
- Service out of the jurisdiction of these proceedings is authorised under r 129F of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). This rule authorises service of a proceeding outside Australia without the leave of the court where the claim is founded on a tortious act or omission in respect of which the damage was sustained wholly or partly in Queensland. On the material before the court, the applicant resides in Queensland and operates his business in Queensland and any reputational damage would be suffered in Queensland.
- The UCPR also makes provision for the method of service. Rule 128 (in combination with r 129H) provides that if a person is to be served outside Australia with an originating process it must be served with a notice informing the person of the various matters set out in the rule. There is no evidence of compliance with this rule.
- Rules 129D and 129H provide that a document to be served outside Australia need not be personally served on a person as long as it is served in accordance with the law of the country in which service is affected. There is no expert evidence as to the laws of California.
- Divisions 2 and 3 of Part 7 of the UCPR contain particular provision for service in “convention countries.” Division 3 relates to service in countries which are signatories to the Hague Convention; of which the USA is one. There was no evidence to suggest that the requirements of those divisions had been followed.
- In making submissions, counsel for the applicant relied on r 107 of the UCPR. Rule 107 provides that:
“A document required to be served personally on a corporation must be served in the way provided for the service of documents under the Corporations Act or another applicable law.”
- Counsel submitted that the laws of California fell within the definition of “another applicable law”. That submission is not accepted. That term cannot be interpreted as extending to permit service in accordance with the laws of a foreign jurisdiction.
- In AMCI Pty Ltd (ACN 124 249 485) v Corcoal Management Pty Ltd (ACN 094 680 636) & Ors, an application was made in relation to service on a foreign corporation registered in Ajman Free Zone in the United Arab Emirates. Jackson J considered that the service provisions of the Corporations Act 2001 (Cth) could not apply to a company which is not a company as defined in s 9 of the Corporations Act. The defendant company was a foreign company not registered under the Corporations Act. His Honour considered that none of the ways of service permitted under s 109X of the Corporations Act could apply to the defendant company.
- Jackson J considered r 107 could provide for service under “another applicable law” and that s 39 of the Acts Interpretation Act 1954 (Qld) was “another applicable law”. Section 39 permits a document to be served on a body corporate “by leaving it at, or sending it by post, telex, facsimile or other similar facility, to the head office, a registered office or a principal office of the body corporate”. Jackson J considered that s 39 provided for a manner of personal service on the defendant company, unless doing so would be contrary to the law of the United Arab Emirates within the meaning of r 129(2) UCPR (as it then was).
- As to s 39, assuming it applies, there was no evidence before the Court that the address to which the documents were left or posted was the head office, a registered office or a principal office of the respondent.
- Further, there is no evidence as to whether service affected by those means would be consistent with the laws of California. As indicated earlier, there is no expert evidence as to the laws of California.
- In the circumstances, I am not satisfied either that this application has come to the attention of the proper party or that service has been effected on the respondent.
- An application for an interlocutory injunction requires two main inquiries:
“The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief… The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”
- Given the nature of the injunctive relief sought in this case there is even more reason for caution. The applicant seeks not only that the respondent be restrained pending trial but that the respondent be required to remove the posts pending trial; more akin to final relief.
Prima Facie Case
- The initial post is attached to an affidavit of the applicant sworn 11 August 2020. The applicant deposes to the post being located at “@realCarrickRyan” and dated 7 September 2019. To be understood the words must be read with the photos. The post reads:
“So Peter Dutton just did a commercial for a small company called SCD American Vehicles.
Perhaps these photos might give you a clue why.
This is their owner, Eddie Kowca.
Suddenly it makes perfect sense.
- The post then contains a collage of photographs of the applicant; one of which depicts the applicant making a symbol with his left hand in a particular way (with his thumb and index finger forming a circle), another is a photo of the applicant shaking Peter Dutton’s hand and another is a photo of the applicant wearing a red hat embellished with the words “Make America Great Again.” The post then reads: “If you don’t know what that symbol means. Maybe this will jog your memory. It means White Power.”
- In the copy of the post annexed to the affidavit certain photos forming part of the post by Mr Ryan are missing; though beneath one of the missing pictures are the words, “White supremacist Richard Spencer.”
- The affidavit of the applicant annexes a re-tweet which appeared at the Twitter feed of “@KieraGorden” on 8 September 2019. The post included the photo of the applicant making a symbol with his left hand and the words:
“#REVEALED Peter Dutton just did a commercial for a small business named SCD American Vehicles run by Eddie Kowca, a MAGA hat wearing LNP supporter who also features in this photo giving the White Power symbol. Please RT until Dutton is forced to explain this.
- The affidavit of Jamie Whitehead, as the solicitor for the applicant, attaches a copy of the Concerns Notice sent to the respondent detailing the addresses of the location where it is alleged the post was re-tweeted. Apart from the re-tweet at “@KieraGorden”, the affidavits do not annex copies of any of the other re-tweets.
- For the purposes of the interlocutory application, on the basis of the material annexed, I am satisfied the initial post was made and that post was re-tweeted. I am also satisfied that the post had been uploaded on the Twitter platform.
- On the basis of the affidavit of the solicitor for the applicant sworn 24 September 2020, I am satisfied that, whilst the initial post by Mr Ryan has been removed, re-tweets of that post still appear at other locations on the Twitter platform.
- Further, I am satisfied that the initial post (and therefore any re-tweets) in its natural and ordinary meaning could be understood to mean that the applicant is a racist and white supremacist.
- The applicant says he is not a racist or white supremacist, and finds those beliefs repugnant. He says his company employs people from various cultural and religious backgrounds, and that he finds the posts insulting and embarrassing. The applicant says the symbol made by him in the photograph is one from a game popularized on the American television show, “Malcolm in the Middle.”
- There is nothing from Mr Ryan or on the current material which suggests there is any defence to the publications.
Balance of Convenience
- There are, however, a number of countervailing considerations.
- The alleged defamation occurred some 12 months ago, and whilst it is said that the applicant only recently became aware of the impact the continuing existence of the statements and images are having on the applicant’s business, that awareness considerably pre-dated the filing of the originating application; let alone this hearing.
- The final issue is utility. The application seeks an interlocutory injunction against Twitter Inc, not against the persons on whose sites the re-tweets appeared. There is no evidence before the court to indicate that Twitter Inc is the entity which controls the platform on which the re-tweets were uploaded or, if the injunction were granted, that Twitter Inc would be able to remove the re-tweets. Ordinarily, care should also be undertaken in framing an order to operate in a foreign country; which is the order sought in this case.
- In the circumstances, the application for an interlocutory injunction against the respondent is refused. The originating application is otherwise adjourned to a date to be fixed with costs reserved.
In light of the discontinuance against Mr Ryan, Twitter Inc will hereafter be referred to as the ‘respondent’ rather than the ‘first respondent’.
UCPR, r 129F(a)(ii).
 QCS 50.
Acts Interpretation Act 1954 (Qld), s 39(1)(b).
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, per Gleeson CJ and Crennan J at , agreeing with Gummow and Hayne JJ at  –  (O’Neill).
O’Neill, per Gleeson CJ and Crennan J at .
O’Neill, per Gleeson CJ and Crennan J at , .
- Published Case Name:
Kocwa v Twitter Inc
- Shortened Case Name:
Kocwa v Twitter Inc
 QDC 252
02 Oct 2020