From restaurants and hotels to accountants and GPs, every service and product is now open to online review by members of the public.
How's the review: Holiday time brings plenty to comment about online, but such comments have landed their makers in court.
These days everyone’s a critic, with a slew of unflattering comments about businesses posted daily on social media and consumer review sites such as Trip Advisor.
But how far can unhappy customers take their online gripes before their targets can take them to court? And should we be surprised that such cases aren’t being brought before the courts more often given the sheer volume of negative reviews?
In a recent case, a Sydney travel company sued a woman who had made disparaging comments about the company on a private Facebook mothers’ group.
When it comes to companies employing 10 or more people, a reviewer can review to their heart’s content.
The judge ruled against the travel company on the grounds that it employed more than 10 people and was therefore ineligible to sue.
In considering nonetheless whether the post was defamatory, he found the comments conveyed two defamatory imputations.
However, the defences of honest opinion and statutory qualified privilege would have succeeded, the judge said, and if not, he would have assessed damages at $10,000.
How free is our speech?
There is no express freedom of speech under Australia’s Constitution, unlike in the US which guarantees freedom of speech under its first amendment. The right to free speech is therefore weaker in Australia and is not a strict defence to defamation.
However, when it comes to companies employing 10 or more people, a reviewer can review to their heart’s content: in 2005, defamation laws became uniform across all states and territories and under Section 9 of the Defamation Act 2005, corporations have no cause of action in defamation unless they are an ‘excluded corporation’ – which includes not-for-profit companies and those employing fewer than 10 people – at the time of publication
- How cotton discovery could save the shirts on our backs
- Why we can't get enough of Anne Boleyn: new book
In August 2020, the state of NSW passed some amendments to the uniform laws that recognised the advent of online publishers. Other states are yet to include these amendments but are expected to follow.
The amendments introduce a ‘serious harm threshold’ which means that the applicant must prove on the balance of probabilities that the review caused or would likely cause serious harm to their reputation.
If this is not established the court may dismiss the application. Previously the applicant need only demonstrate that the material contained defamatory imputations that would likely cause some harm but not necessarily serious harm.
This allows more freedom to publish online reviews and I would predict that, because there are so many online reviews these days, lawyers would advise that unless you can show serious harm – for example that you have gone out of business and the online review was the cause – it will be difficult to establish your case in court.
When does harm become serious, and when it does, what’s your defence?
It has yet to be determined how the courts define ‘serious harm’ and the onus falls on the aggrieved party and not the reviewer to demonstrate that they suffered or would likely suffer serious harm to their reputation.
Unhappy customer: Honest opinion is one of the legal defences available in a defamation case.
If the applicant demonstrates serious harm there are a number of defences available to the defendant and these have been expanded under the new amendments – again allowing more leeway for individuals to write online reviews without the fear of legal action.
One new defence is called the ‘public interest defence’ where if the defendant can show the matter complained of by the plaintiff is a matter of public interest and they reasonably believe this to be so, they will prevail.
Truth is still the main defence and it is a longstanding one. If someone writes a bad review about a restaurant and they can demonstrate that the review is substantially true, they will likely fend off the action. Defining ‘substantial’ is open to interpretation and different courts have taken different views on this, but if I write a review that is 90 per cent true I should be fine.
As a golden rule, before you press the button to publish, ensure that your negative review is substantially true and is your own opinion.
The defence of honest opinion is also available if the defendant proves that their review was an expression of an opinion and not a fact and that this opinion was related to a matter of public interest. The quality of food in a restaurant may be a good example as this is based on material that is substantially true, subjectively speaking – you might genuinely believe your filet mignon to be overcooked, while someone else might consider it perfect.
The defence of qualified privilege is available if the defendant proves they have reasonable grounds for believing that the intended audience has an interest in the review, and the conduct of the defendant in publishing it is reasonable in the circumstances.
If someone for example contacts you for a reference for a job applicant who is a former employee of yours and you give a non-complimentary assessment of them, this might be construed as defamatory, but you should be able to rely on the defence of qualified privilege because the recipient of the information has interest in that information.
A harder road to court
The other major NSW amendment is what is called a ‘concerns notice’.
The plaintiff will be expected to make the defendant aware of the defamatory material and allow them to offer some sort of amends. Examples include an offer to publish an apology, correct or remove material from a website or offer compensation. This type of conciliatory requirement will become a precursor to legal action.
This should have the effect of limiting the amount of cases going to court which is the main purpose of the amendments.
If a plaintiff regardless commences action, the defendant has a stronger case if the court considers their attempt at making amends reasonable, especially if the aggrieved party has not made a reasonable attempt at being conciliatory, although this is yet to be tested in the courts.
The big 'don’t' for online reviews (if you don’t want to get sued)
In 2019, the NSW Supreme Court ordered a woman who had posted negative reviews on Google about her plastic surgeon to pay more than $500,000 in damages, because the court found that the reviews were knowingly untrue.
While the law gives increased leeway for negative comments, there is a basic ‘don’t’ to follow if you don’t want a defamation action brought against you to succeed – let alone be brought to court in the first place.
- Not so sweet: chocolate, slavery and complicit corporations
- MindSpot study shows digital mental health services are here to stay
Don’t be motivated by malice.
Examples of malice include posting a review that is intended to cause harm, that is not a genuine or honest opinion or contains statements that are knowingly untrue; and intended to cause harm to the reputation of the plantiff.
As a golden rule, before you press the button to publish, ensure that your negative review is substantially true and is your own opinion.
Julian Dight (pictured) is a legal academic at Macquarie Law School.
