Help us Mark Zuckerberg! How to Deal with a Negative Online Review

By Nicola Turner

We are all acutely aware that we live in a social media world. I know when my first cousin’s, sister-in-law’s 30^th birthday is and what Susan from down the street is having for dinner.

In addition to a deep knowledge of Susan’s culinary habits, I also have the privilege of finding out the opinions of hundreds of people, from all over the world, on accommodation, restaurants, gyms and tourist activities. I am able to see that Fabio from France was not impressed with the quality of the pillows at his most recent Air BnB experience and that Dorinda from Scotland only gave a skydiving company a one star review on google.

And you know what? I can’t help but rely on the advice of Fabio and Doriana and their comprehensive single star rating.

When you own a business with a social media presence, you have to be prepared that not everyone is going to be a fan of the goods and services you have to offer.  There are always going to be ratings on your business’ cleanliness and perhaps a scathing review of one of your staff who was having a rough day.  However, there IS a line and that line DOES get crossed in the online world, sometimes resulting in “defamation”.

Here in Queensland, defamation is governed by the Defamation Act 2005 (“the act”).

Defamation is an offence, or a civil wrong, which occurs when defamatory material which affects an individual is published. Material will be considered defamatory to an individual if it could:

1. damage their reputation by exposing them to hatred, contempt or ridicule;
2. cause people to shun or avoid them; or
3. lower their estimation by members of society.

For a defamation action to be successful, three elements must be satisfied:

1. the information has to have been communicated by the defamer to a third person other than the innocent party;
2. the material has to identify the innocent party; and
3. the information/material contains defamatory matter (regardless of whether the material was intentionally published or not).

Under the act, corporations cannot sue for defamation, unless they fall under the category of an “excluded corporation”. An example of an excluded corporation is one which employs fewer than 10 persons and is not related to another corporation.  Some people choose to set up their small business as a corporation. Therefore, this is a very important thing to consider and we recommend you seek legal advice on whether your business has a cause of action for defamation.

If you own a business in your own name, then it is likely any defamation action would be commenced by you as the individual suffering the damage (through loss of profits etc).

Let’s look at a review of a fictional restaurant “Bees & Petals Café” to see whether there is any defamation.

Let’s apply the three elements:-

1. The information was communicated by Julie on Facebook to her 300 friends; (the communication of the material does not stop there – with the post being shared by an additional 50 people, thereby exposing to the friends of those 50 and so on and so on!)
2. The information specifically identifies Bees & Petals Cafe;
3. The information contains untrue information and will damage the reputation of Bees & Petals Café thereby negatively impacting sales and profits.

Whilst, in the heat of the moment, Bees & Petals Café’s owner would like to launch a team of litigators straight onto Julie, this can be a costly exercise.  Further, if they are successful, it is unlikely Julie (a second year university student) will have the means to pay damages or court ordered legal fees.

As a starting point, we would recommend Bees & Petals Café consider doing the following:

1. Sending Julie a message politely asking her to remove the review and inviting her to write an email detailing her grievances directly to the café;
2. If Julie posted the review in a Facebook group, writing to the group administrator stating that the review By Julie is defamatory in nature and should therefore be removed urgently;
3. If the review is on a platform with a “response” option, writing a polite response asking Julie to contact the owner directly to air her grievances and stating that Julie’s comment was untrue (if that is the case).

Failing the above, we would recommend contacting a lawyer to provide advice on the situation and to assist in drafting the appropriate correspondence to a person who has defamed you or your business on social media.

On the other hand, if Bees & Petals Café had invented a new liquorice flavoured milkshake and Julie had posted that it tasted like a tree root dragged through muddy water, this probably would not amount to defamation and Bees & Petals Café may wish to rethink the menu!