Pasta Wasn’t Mouth Watering? Here’s Why You Should Bite Your Tongue!
Is there anything more cathartic than leaving a negative review about a bad experience with a business? It might be on a business’s social media page or on a review site such as TripAdvisor or Whitecoat. These sites, together with platforms such as Google and Facebook have made it increasingly easy for consumers to leave negative reviews.
Whilst it might make you feel better, going too far can result in you being sued for defamation and being ordered to pay hundreds of thousands of dollars in damages. A bad review can be devastating for a small business and increasingly, small business owners are seeking to sue the authors of bad reviews both to vindicate their reputation and to seek damages.
It’s a free country. What about my right to free speech?
Fans of the long running TV series Law & Order may be thinking what about our right to free speech? That right is enshrined in the First Amendment of the United States of America’s Constitution. In Australia, there is no absolute right to free speech. Which means there is no “free speech” defence to a claim for defamation, no matter how bad you think your gnocchi was.
What is defamation?
Put simply, defamation is the publication of material by one person which harms another person’s reputation. The material can take different forms such as written material, spoken words or even pictures. This material must be “published” or in other words, communicated to a third party.
If the published material contains one or more defamatory claims about a person known as “imputations” then that person may choose to sue the author or maker of the statement for damages, claiming that their reputation has been damaged as a result of those imputations.
Can a company be defamed?
Negative reviews are often left on social media sites about companies or businesses. These reviews can be defamatory, depending on who they are made against and the content of the review.
According to s 9 of the Defamation Act 2005, a company that has 10 or more employees cannot sue for defamation. So, if a negative review is defamatory, but is for example directed at Westpac Bank or McDonalds rather than an individual within those organisations, the company will not be permitted to bring a defamation claim. Only an excluded corporation such as a not for profit corporation or small business employing fewer than 10 employees is able to bring a defamation claim.
However, even though a professional may be employed by a company, a bad review naming that professional (such as a doctor or a lawyer) which causes damage to the professional’s reputation, will still be actionable by that individual, even if the company is also mentioned.
The requirement for serious harm from the review
Reforms to defamation laws in NSW and other jurisdictions have introduced a ‘serious harm threshold’ which means that the person bringing the claim must prove on the balance of probabilities that the review caused or would likely cause serious harm to their reputation.
Serious harm is to be determined by reference to the actual facts about its impact on that person not just the meaning of the words.
In the case of an excluded corporation, evidence of a likelihood of or actual serious financial loss would suffice. Evidence showing a decline in turnover since the publication or specific evidence of customers refusing to do further business with that corporation after publication would be indicative of serious harm.
For individuals, the test is more complex. It requires evidence of very wide dissemination of the material to many people and where the material is read by people who know the person and who’s reputation in those readers’ eyes may have been seriously harmed.
What defences are available?
The most obvious defence to a claim for defamation is the defence of truth. For example, in the current high profile defamation claim brought by Ben Roberts-Smith alleging various media outlets published defamatory material that imputed that he was a murderer and domestic abuser, the Sydney Morning Herald, Channel 9 and the ABC have argued a defence of truth. In doing so, they are seeking to prove that even if the publications were defamatory and did cause serious harm to the Victoria Cross recipient’s reputation, the allegations are true and therefore he should not succeed. They have sought to call evidence from witnesses who allege that they saw him commit the acts the subject of the publications.
Truth is an absolute defence to a defamation claim but does not always succeed. For example, the truth defence was used by the Daily Telegraph in the claim brought by Geoffrey Rush, but ultimately Geoffrey Rush succeeded because the court was not convinced that the imputations that he was a “leer” and had engaged in sexual harassment were true.
There are also other defences available to an online reviewer, such as honest opinion. The reviewer would need to establish that the review was an expression of an opinion rather than a fact. The easiest example of this would be a review of a restaurant, where the reviewer genuinely believes that the food was too salty or was overcooked or that the service was slow.
It is also important to get the simple things right. One restaurant reviewer, who published a scathing review of a new restaurant including describing the texture of the pork as “the porcine equal of a parched Weetbix” and the oysters as “tasting like reflux” made the fatal mistake of publishing his review about “Coco Loco”, when he had in fact only dined at the sister restaurant Coco which was located upstairs and not the related restaurant, Loco, which was located downstairs. That review led to both restaurants closing within 6 months and a damages award for defamation against his employer, the Sydney Morning Herald, of in excess of $600,000.
Please don’t read that example to mean that only newspapers can be sued for bad reviews. The law applies to individuals, who can be found personally liable and will need a defamation lawyer to help them through a very costly law suit.
Not so anonymous
Anonymous reviews are no longer a guaranteed protection. Increasingly, plaintiffs are bringing cases against publishers such as Google and Facebook to force them to reveal the identity of an anonymous reviewer. In recent times, Australian courts have been willing to make orders against companies like Google requiring production of documents that might tend to reveal the identity of a reviewer who had posted an anonymous review.
Real cases of online defamation
In February 2017, Cynthia Imisides had surgery performed on her nose and cheeks by a Sydney-based cosmetic plastic surgeon, Dr. Kourosh Tavakoli. Apparently unhappy with the length of time it would take for the swelling to her nose to reduce, Ms Imisides published a Google review in which falsely claimed that the doctor had charged for a procedure which he did not perform. She then went on to publish a second review, repeating that false claim. The Court found that the reviews were false and that Ms Imisides knew, at the time that she published them, that they were false. Dr Tavakoli was awarded $530,000 in damages.
In another case, an Adelaide based lawyer, Gordon Cheng, was awarded $750,000 in damages when Isabel Lok, who had never been a client of Mr Cheng’s, published an extensive negative one star Google review of Mr Cheng. Mr Cheng, whose client based was comprised almost entirely of Adelaide’s Chinese community or from Hong Kong or China, led evidence that he lost almost 80% of his client base after publication of the false review.
The golden rules of online reviews
So your garlic bread tasted like salty cardboard and you feel it’s your duty to let the world know. Go ahead, leave your bad review. However to do so without landing yourself in hot water, here are the four main things to remember before posting it online:
- Make sure your review is accurate i.e. it is substantially true and your language is clear and accurately reflects your experience;
- Avoid floury language. Keep it factual. EG “The bread was basically 25 days” old is defamatory compared to: “My bread tasted stale”.
- Make sure that your review is your own opinion. Do not repeat negative things you may have read or heard; For instance – “I had heard from tonnes of people this restaurant was crap” is more likely to be considered defamatory.
- Do not post a review when you are angry. Mobile phones have made it possible to leave a bad review instantly, even while you are still in the store or restaurant. However, doing this is likely to increase the chance of you posting something which is embellished, malicious and or not true; and
- Do not publish a review motivated by malice. Malice can manifest in different ways, including knowingly including untrue material or publishing the material with the intention to cause harm to the person’s reputation.
Too angry to care? Make sure you have our litigation lawyers on speed dial! Your fake name is not enough to save you now.
If you find yourself in trouble over an internet review or related defamation case, contact us today.
Liability limited by a scheme approved under Professional Standards Legislation. This post provides a general overview and should not to be relied upon as legal advice or as a substitute for legal advice or as giving rise to a solicitor / client relationship. If you want advice specific to your circumstances, please contact us to arrange an appointment