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.
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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.
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; then you may have a cause of action for defamation pursuant to possible defences outlined below.
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.
Triviality
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.
DEDICATED TEAM – COMMERCIALLY MINDED – PROVEN RESULTS
OR CALL: 1300 545 133 FOR A PHONE CONSULTATION
