Defamation & Bad Online Reviews
This article is about defamation & bad online reviews.
Being on the receiving end of bad online reviews can have a devastating impact on your business. If those reviews are untrue, or parts of the review are untrue then you may have a case in defamation.
Generally, a website such as Yelp, Google or any of the other big international sites will not act as a mediator unless you have a Court order or something of that nature. In fact, you’re lucky if you could even get to speak with somebody.
Defamation laws in Australia can remove the need to contact the website directly and may apply to bad online reviews forcing the reviewer to remove the review or face being sued for damages.
In this article our defamation lawyers explain the basics in removing bad online reviews.
Do You Have a Cause of Action?
If you have been left a bad review for your business then the trading entity must be either a person (i.e. sole trader); or a corporate entity (i.e. a company) if it employs fewer than 10 persons and is not related to another corporation.
Publication of a Bad Review
There has to be a publication. This publication can be as an online review and must be communicated to at least one other person. In the context of a bad online review, this communication is essentially to the world-at-large, or anyone who searches online where that review is likely to appear.
Must Identify Your Business
The defamatory comment must identify your business. This identification can be in the form of an explicit naming of your business, or if not named, then may be inferred upon the words of the defamatory material. However, in the case of an online review, it is more likely than not that it will name your business explicitly.
It must be Defamatory
This may sound obvious, however unless you understand what “defamatory” means at law, it is a hard question to answer. The publication is defamatory if it:
- Lowers the person/businesses estimation in the eyes of “right-thinking” members of the society generally – Slatyer v The Daily Telegraph Newspaper Co Ltd [1908] HCA 22; and/or
- Injures the reputation of the person/business by exposing it to hatred, contempt or ridicule – Parmiter v Coupland (1840) 6 M & W 105 at 108 per Parke B; and/or
- Put’s the person/business in the position of being shunned and avoided – Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587.
Serious Harm Threshold to Defamation and Bad Online Reviews
In 2021, Australian defamation law introduced a critical amendment with the serious harm threshold, significantly impacting how defamation cases, particularly those arising from bad online reviews, are evaluated and prosecuted.
This amendment, reflected in section 10A of the Defamation Act 2005 (Qld), mandates that a plaintiff must convincingly demonstrate that the defamatory publication has caused, or is likely to cause, “serious harm” to their reputation (false sexual or paedophilia accusations, for example), or in the case of an excluded corporation, serious financial loss.
This shift places the onus of proof squarely on the plaintiff, moving away from the defendant’s burden to prove triviality, which was previously a viable defence.
The serious harm threshold aims to balance the fundamental right to freedom of expression against the necessity to protect one’s reputation. It introduces a pre-trial determination by a judicial officer, not a jury, on whether the serious harm element is met, potentially leading to the dismissal of cases that fail to meet this criterion.
This process is designed to filter out claims that do not demonstrate significant reputational damage, thereby streamlining defamation litigation and focusing on cases with substantive grievances.
Recent case law has further clarified what constitutes “serious harm,” underscoring that not only must the publication be defamatory in nature, but it must also have caused or be likely to cause harm that significantly impacts the claimant’s reputation in a tangible way.
This approach requires an examination of the publication’s actual effects on the claimant’s reputation rather than hypothetical implications.
The inclusion of the serious harm threshold in the context of defamation and bad online reviews underscores the legal system’s evolving understanding and handling of the complexities associated with digital communications.
It reflects a sophisticated mechanism to ensure that defamation claims are not frivolously pursued, emphasising the need for tangible harm to have occurred as a prerequisite for legal action.
This development highlights the importance for individuals and businesses contemplating defamation claims to carefully assess and provide evidence of the serious harm incurred due to defamatory online reviews, aligning with the legislative intent to balance free expression with the protection of reputation.
Read more here – Serious Harm Threshold in Defamation
Does this Apply to you?
If you are a person, or a company with less than 10 employees; and the defamatory material was published to at least one other person; and it identifies you (by name or strong implication); and the material was actually defamatory; and this has caused you serious harm; then you may have a cause of action for defamation pursuant to possible defences outlined below. Our Queensland defamation lawyers can help.
Defences to a Cause of Action for Defamation in an Online Review
The Defamation Act 2005 (QLD) at s3 and the case law try to strike a balance between defamation and freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance.
Because of this, most defamation action relies not on whether there has been a publication of defamatory material, but whether there is a genuine defence to that claim. The possible defences in relation to the publication of an online review are inter alia outlined below:
Defamation or Truth
It the Defamation Act 2005 (QLD) at s25 says that it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true, or essentially true in substance or not materially different from the truth.
For example, if a customer to your restaurant had a bad experience, and they can prove the bad experience, then this may be a complete defence if they recount that bad experience in a bad online review. This has been followed in a recent Queensland Court of Appeal decision in Hudson v Mellis [2016] QCA 171.
Contextual Truth
It is also a defence under the Defamation Act 2005 (QLD) at s26 if as well as the defamatory imputations, one or more other imputations (contextual imputations) that are substantially true; and the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
In Mizikovsky v Queensland Television Limited & Ors [2013] QCA 68 the Queensland Supreme Court of Appeal said
having regard to the nature of that truth, that is that you’re a fraudster, there could be no further harm done by also broadcasting that you were a tax cheat.
Honest Opinion
The Defamation Act 2005 (QLD) at s31 says that it is a defence to the publication of defamatory material if:
- the matter was an expression of opinion of the defendant rather than a statement of fact; and
- the opinion related to a matter of public interest; and
- the opinion is based on proper material.
It is important to note that a defence of honest opinion requires all three elements outlined above.
In Roberts v Bass [2002] HCA 57, the High Court of Australia said:
an author may have an honest belief in what he or she writes even though the author does not intend the writing to have … defamatory meaning
The High Court cited Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 where they said:
Words are often capable of more than one meaning, and because the jury may attach to them a defamatory meaning which the writer did not intend, it does not follow that the writer did not honestly believe in the truth of what he wrote and reasonably intended a different meaning to be given to his language.
We have a very detailed article here – Defence of Honest Opinion in Defamation
Triviality
THIS DEFENCE HAS BEEN REPEALED AND REPLACED WITH SECTION 10A. THIS DEFENCE WILL ONLY BE AVAILAVLE IN RELATION TO PUBLICATIONS MADE PRIOR TO 1 JULY 2021.
The Defamation Act 2005 (QLD) at s33 says that it is a defence to the publication of defamatory material if the defamatory material is proven to be trivial and unlikely to cause any harm.
In Smith v Lucht [2015] QDC 289 Moynihan QC DCJ looked at whether the calling of a solicitor by the words “Dennis Denuto” by their ordinary and natural meaning are defamatory; or alternatively, whether the words “Dennis Denuto” are defamatory by way of innuendo. Moynihan QC DCJ decided that the calling of a solicitor by the name “Dennis Denuto” to two other family members was sufficiently trivial as to be caught by this defence.
This decision was appealed to the Queensland Court of Appeal in Smith v Lucht [2016] QCA 267 in which the Court considered if the trial judge construed s33 of the Defamation Act 2005 (Qld) as being limited to reputational harm or whether the words “any harm” in s33 of the Defamation Act 2005 (Qld) extends to harm to feelings.
Malice as a Reply to Possible Defences
There is a reply to some of the defences mentioned above if a person/business can prove that the customer left a review with malice.
In order to establish malice, the person/business must prove that, in publishing the material complained of, the customer was actuated by a motive that was foreign, or ulterior, to the matter which has been used as a defence. In Roberts v Bass (2002) 212 CLR 1, 30–31 the High Court said:
in considering whether the plaintiff has proved malice, it is necessary that the plaintiff not only prove that an improper motive existed but that it was the dominant reason for the publication
Defamation is a complex area of the common law of Australia and will need to be based upon the facts in each individual case.
Conclusion
- If a disgruntled customer has left a bad review for your business; and
- You are a person / company with less than 10 employees; and
- The defamatory material was published to at least one other person; and
- It identifies you (by name or strong implication); and
- The material was actually defamatory; and
- The review is not caught by any possible defences; or
- The review is caught by an eligible defence but is published with malice; then
You may have a genuine cause of action for defamation.
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FAQ: Bad Online Reviews and Defamation
Navigating the complex landscape of online reviews and defamation can be challenging for businesses and individuals alike.
Below are frequently asked questions that provide clarity on how defamation law applies to online reviews, helping you understand your rights and potential legal actions.
What qualifies as defamation in the context of online reviews?
Defamation in online reviews occurs when a statement published in a review can damage a person or business’s reputation by lowering their esteem in the community, exposing them to ridicule, or causing them to be shunned or avoided.
Can any negative review be considered defamatory?
Not all negative reviews are defamatory. A review is only considered defamatory if it contains false statements that can seriously harm the reputation of an individual or business. Honest opinions and factual statements are not considered defamatory.
Who can sue for defamation based on an online review?
Individuals or companies with fewer than 10 employees that are not related to another corporation can initiate a defamation lawsuit if the review meets the criteria for defamation.
What does the serious harm threshold mean for defamation cases?
The serious harm threshold requires the plaintiff to demonstrate that the defamatory statement has caused, or is likely to cause, significant harm to their reputation or, for businesses, serious financial loss. This is a requirement for the case to proceed.
Can I request a website like Google or Yelp to remove a defamatory review?
Websites typically do not mediate content disputes unless ordered by a court. However, Australian defamation laws may compel the reviewer to remove defamatory content without directly contacting the platform.
What are the defences against a defamation claim from an online review?
Defences include truth (the statements are substantially true), honest opinion (the review is an expression of genuine opinion on a matter of public interest), and contextual truth (additional true statements prevent the review from further harming the reputation).
How can I prove a review is defamatory?
To prove defamation, you must demonstrate that the review falsely identifies your business or you personally in a negative light, causing reputational damage, and that it has been published to at least one other person.
What steps should I take if I believe a review is defamatory?
Consider seeking legal advice to assess the viability of a defamation claim. You may also contact the review platform to see if the review violates their content policies, although legal action may be necessary for removal.
Can an honest negative review be considered defamatory?
An honest negative review that reflects the customer’s genuine experience and does not contain false statements is not defamatory. Defamation concerns false statements that unjustly harm someone’s reputation.
What impact has the removal of the triviality defence in defamation law?
The removal of the triviality defence and introduction of the serious harm threshold means that plaintiffs must prove the defamation caused serious harm to their reputation, shifting the focus from minor to more significant cases of reputational damage.
