Supreme Court New South Wales Medium Neutral Citation: Konidaris v Google Australia Pty Limited [2015] NSWSC 1810 Hearing dates: 17 December 2015 Date of orders: 17 December 2015 Decision date: 17 December 2015 Jurisdiction: Common Law Before: McCallum J Decision: Injunction granted. Catchwords: DEFAMATION – injunctions – balance of freedom of speech and protection of reputational damage – where alleged publisher professes no interest in publishing – where matter complained of grossly defamatory of the plaintiff and such as to cause him irreparable harm Category: Procedural and other rulings Parties: Father Sophronios Konidaris (plaintiff) Google Australia Pty Ltd (first defendant) Google Inc LLC (second defendant) Representation: Counsel: L Barnett (plaintiff) Ex parte Solicitors: Steven Nicholson (plaintiff) Ex parte File Number(s): 2015/370909 Publication restriction: None Judgment – Ex Tempore 1. HER HONOUR: An urgent application for an injunction has been brought before the Court this afternoon by Father Sophronios Konidaris, a Greek Orthodox priest, currently the Archimadrite at the Kogarah Greek Orthodox Church. An affidavit in support of the application explains that an Archimadrite is a celibate priest, one level below the Bishop within the church hierarchy. 2. The application seeks, on an urgent ex parte basis, to restrain the publication by the first defendant, Google Australia Pty Limited of a blog which the plaintiff alleges is published by it. The principles applicable in respect of applications for injunctions to restrain the publication of allegedly defamatory matter are well known. In particular, it is well established that an applicant for such relief faces an additional hurdle above and beyond the ordinary elements to be established in any claim for injunctive relief. 3. As with any case, the plaintiff must establish the existence of a prima facie case, that is, the basis for a conclusion that if the evidence remains the same, there is a probability that at the trial of the action the plaintiff will be entitled to relief. Since the present application is brought ex parte, the only evidence on that issue comes from the plaintiff (in an affidavit sworn on information and belief by his solicitor). Even so, that evidence establishes to my satisfaction that, leaving aside any defences that might be raised, the plaintiff has a strong prima facie case for defamation. 4. The matter complained of is a blog allegedly published on Google which, in short, alleges that the plaintiff "got caught in Greece in a sex scandal with his Albanian lover". The blog purports to be authenticated by an inset from the front page of the Star Press of 25 June 2015. However, the affidavit in support of the application reveals a strong basis for concluding that the embedded version of that article as it appears in the blog has been doctored. 5. The original front page of the newspaper of that date bore a headline in Greek which translates to mean "Turmoil in Western Greece". The article was illustrated by a photograph of a man sitting shirtless on a couch (evidently intended to be a depiction of the Albanian lover) and a person in Greek Orthodox religious robes standing in front of him. The face of the man standing is not revealed. 6. The version in the blog has added an inset photograph which, although blurry, can (according to the evidence before me) be identified as a photograph of the plaintiff. More alarmingly, the headline has been changed in the version in the blog to the Greek words for "Turmoil in Australia". There is, accordingly, a strong suggestion that someone has created the blog by taking an article entirely unrelated to the plaintiff and doctoring it so as to refer to him as the priest involved in a sex scandal with his Albanian lover. The blog continues: "Although the local Orthodox Hierarchy in Australia have tried to suppress this mortifying scandal, sources have also revealed this is also the reason of being crossed off the list of future bishops. Why is this person still a priest? All Orthodox Christians in Sydney Australia be cautious of this deceptive quasi cleric." 1. Those words need only to be read for it to be concluded that, leaving aside the question of any defences, the matter complained of is grossly defamatory of the plaintiff and could cause irreparable harm to his reputation. 2. As already noted, an application for an injunction to restrain the publication of allegedly defamatory matter faces an additional hurdle. Such applications must be determined in the context that the law of defamation seeks to strike a balance between an individual's right to have his reputation protected and the defendant's right of freedom of speech. The importance of freedom of speech as an aspect of our democratic legal system ordinarily means that an injunction will not lie to restrain the discussion of matters of public interest and that the plaintiff must look to his remedy in damages. 3. In cases where a plaintiff seeks to restrain, for example, the publication of an allegedly defamatory current affairs broadcast, that consideration looms large in the weighing of the factors relevant to the exercise of the court's discretion whether to grant relief. 4. In this case, however, it is not as large a consideration. The defendant does not claim to be the author of the matter complained of or profess any interest in exercising its freedom to speak in such terms about the plaintiff. On the contrary, the first defendant, Google Australia Pty Limited, distances itself from any desire to have anything to do with the determination whether the matter complained of should or should not remain on the blog. 5. In an email received by the solicitor for the plaintiff late this afternoon, the solicitor whose address is the registered office of the corporate first defendant responded to notice of this application in the following terms: "We are not instructed to represent Google Australia Pty Limited in relation to this matter. Google Australia's position in other matters of this kind is that Google Australia is a support services company and does not operate the Blogger product and does not have the authority to remove blog postings from the Blogger product on legal grounds. The Blogger product is owned and operated by Google Inc based in the United States. Google Inc has a dedicated removals team that handles removal requests." 1. The email proceeds to provide the details for access to the on-line notification form for a removals request. 2. Two things flow from the content of that email. The first is that, as already indicated, I think it follows that the right of freedom of speech is of little weight on the present application. Secondly, going against the grant of relief sought by the plaintiff, the email suggests that Google Australia Pty Limited does not have authority to remove blog postings. As noted by Ms Barnett in her careful submissions, however, it does not follow that if an injunction is granted, Google Australia would not have the authority or ability to comply with it. The meaning of the email is not entirely clear on that issue. It might have been intend to assert that, for legal reasons, Google Australia does not have the authority to make the determination that material should be removed from a blog on the grounds that it is defamatory. There is nothing in the email to suggest that Google Australia does not have the ability to remove a posting in the event that the Court makes that determination. 3. In all the circumstances, I am persuaded that in the unusual and alarming circumstances of this case, it is appropriate to grant the relief sought. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2016