IF YOU HAVE EVER BEEN THE RECIPIENT OF A DEFAMATORY ONLINE REVIEW YOU WILL UNDERSTAND HOW HEARTBREAKING THEY CAN BE.

Also, if you have ever tried to approach the website owner to ask for the review to be removed you will understand how frustrating it can be.

Generally, a website such as Yelp, Google or any of the other big international sites will not act as a mediator in a dispute over an online review. In fact, often times, it’s impossible to find a person to speak to in those organisations.

Defamation laws in Australia may help you to circumvent the need to contact the website directly by forcing the person who made the defamatory comments to take down the review or post or face being sued for damages. This article explains the basics in removing defamatory online reviews.

DO YOU HAVE A CAUSE OF ACTION?

So that we’re clear, it’s not unlawful for someone to leave a negative review about the services provided by you or your business as long as the comments are truthful. Therefore, if someone posts a comment on a review site to say that their meal was served cold, that’s not unlawful. It’s entirely different, however, if the person leaving the review makes harmful and defamatory comments about you and/or your business that are completely untrue.

Any individual may pursue a person for making a defamatory comment about them. If your business has had defamatory comments made about it, then in order to pursue a claim for defamation, it must either be a person (i.e. sole trader); or a corporate entity (i.e. a company) that employs fewer than 10 people and who is not related to another corporation. If you meet this test, then we move on to the next requirement.

PUBLICATION OF A BAD REVIEW

There has to be a “publication” that is communicated to at least one other person. In this instance, we’re talking about online reviews. Posting a defamatory review online is not only a “publication”, but it is a publication to the world-at-large!

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:

1. lowers the persons/businesses reputation in the eyes of “right-thinking” members of the society generally [1]; and/or
2. Injures the reputation of the person/business by exposing it to hatred, contempt or ridicule [2]; and/or
3. Puts the person/business in the position of being shunned and avoided [3]

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, subject to possible defences outlined below.

DEFENCES TO A CAUSE OF ACTION FOR DEFAMATION IN AN ONLINE REVIEW

The legislation 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. [4]

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 outlined below.

TRUTH

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 [5], 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.

CONTEXTUAL TRUTH

It is also a defence under the Defamation Act 2005 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 [6] 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

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.

TRIVIALITY

It is a defence to the publication of defamatory material if the defamatory material is proven to be unlikely to cause any harm.

In Smith v Lucht [7] 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.

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. [8]

SO HOW CAN YOU GET THAT REVIEW REMOVED?

The best place to start is to send a “concerns notice” to the person who lodged the review. A concerns notice is essentially a letter that’s sent in accordance with the requirements of theDefamation Act. It sets out, amongst other things, the comments that were made, the implications that follow from those comments and the effect that they have had on person or business about who the comments have been made. A concerns notice typically puts the reviewer on notice that they are in breach of the Defamation Act, and provides them with an opportunity to retract (or take down) the defamatory comments and to provide a written apology. It also clearly informs the reviewer that a claim for damages will be brought in the event the retraction and apology are not provided in a very short period of time.

A properly drafted concerns notice typically has the effect of prompting the reviewer to remove any comment or review that amounts to “defamation”. A person who fails to heed the warning contained in a concerns notice does so at their peril!

CONCLUSION

1. If a disgruntled customer has left a bad review for your business; and
2. You are a person / company with less than 10 employees; and
3. The defamatory material was published to at least one other person; and
4. It identifies you (by name or strong implication); and
5. The material was actually defamatory; and
6. The review is not caught by any possible defences; or
7. The review is caught by an eligible defence but is published with malice; then

You may have a genuine cause of action for defamation.

[1] Slatyer v The Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1 at 7.

[2] Parmiter v Coupland (1840) 6 M & W 105 at 108 per Parke B; [1840] EngR 168.

[3] Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587.

[4] Defamation Act 2005 (QLD) at s3.

[5] Defamation Act 2005 (QLD) at s25.

[6] Mizikovsky v Queensland Television Limited & Ors [2013] QCA 68.

[7] Smith v Lucht [2015] QDC 289.

[8] Roberts v Bass (2002) 212 CLR 1, 30–31.