The rise of the online review
More than ever, consumers are going online to ‘vet’ a business before engaging it. Part of this process involves reading reviews of the business posted on third party platforms by (what appear to be) previous customers.
Where genuine, these reviews are important for keeping both consumers and the business informed about the market. Many businesses pride themselves on their online reputation evidenced by, for example, their Google rating.
On the flip side, online review platforms are ripe for abuse. Their wide reach and ease of use combined with the relative anonymity of the reviewer provide a fertile ground for disgruntled customers to significantly and in some cases irreparably damage an individual or business.
Keyboard warriors, particularly those who think they are posting anonymously, might think they are immune from any consequences.
Not so. Australian courts and the legislature are adapting to changes in technology.
This article explores how defamatory online reviews can fall foul of Australian law, comments briefly on the increasing liability of the host of the review platform, and provides some practical examples of how common hurdles in this space can be navigated.
The playing field
In Australia, we do not have an inalienable right to free speech.
Many laws, including those relating to defamation, place limitations on our freedom to say (and type) what we want.
The laws of defamation provide a cause of action for people whose reputation in the eyes of the public has been lowered because of unjustifiable material published to at least one other person. The usual remedy for the successful plaintiff is damages which are calculated by reference to the seriousness of the defamation and the extent of the publication.
In awarding damages, Australian courts place a high value on an individual’s public reputation, particularly where their business or livelihood is at stake. This is evident from recent high-profile defamation cases such as those by Rebel Wilson and Geoffrey Rush. Another involving our Attorney-General Christian Porter was filed last week.
But it is not only those in the public spotlight who engage these laws.
Recent awards of damages for defamatory reviews include: a surgeon awarded $480,000 following a protracted online hate campaign by a disgruntled customer; a restaurant owner awarded $600,000 for a defamatory review in the Sydney Morning Herald , a lawyer awarded $750,000 following a fake Google review.
Bear in mind that a business that employs more than 10 people does not have a cause of action in defamation - that business can only sue under the common law tort of ‘injurious falsehood’ which, unlike defamation, requires it to prove ‘malice’ on the part of the publisher.
What you can and can’t say
An aggrieved person can usually take action where a negative review strays beyond a factual account of what the reviewer actually experienced, uses language that is capable of more than one meaning or expresses an opinion without a proper basis.
For example, publishing a review of a restaurant in which you describe a dish you’ve recently eaten as “the porcine equal of a parched Weetbix” is a difficult statement to defend - as a food critic and the newspaper which published his review found out.
The defence of ‘contextual truth’ can be problematic. The onus is on the publisher to prove that the defamatory comments they made were true (i.e. the aggrieved business does not have to prove that the comments were false). If the publisher can’t do that then the defence is lost. Cases in which the defendant has failed to prove the defence to justify its publications include attempting to prove that someone regularly drinks to excess or is a pervert. Think about how you could prove that the meal you were served and wrote a review about 12 months earlier was cold.
Even where the defence is available and arguable, it will not prevent the reviewer from being sued in the first place - they will still have to incur the cost of hiring lawyers and calling witnesses to prove the defence at a trial.
Even worse than an unjustifiably negative review is a malicious one. In some cases, customers seek their vengeance by posting a completely fake review for the sole purpose of inflicting damage to the business. The defence of truth will not assist these people. In the civil jurisdiction, these reviewers face awards of aggravated damages being made against them. And there may be criminal consequences too - the offence of defamation is still charged occasionally in Queensland.
Less common, but no less misleading, are cases where the business posts its own fake positive reviews to give the false impression that they are being reviewed by happy customers. Another variation is where the business provides an incentive to customers to make a positive review without disclosing in the review that an incentive was provided. While not defamatory, they are misleading and expose the business to liability under the Australian Consumer Law.
Identifying the ‘anonymous’ reviewer
Clearly, a plaintiff must be able to identify the defendant in order to name them in the proceedings.
But how is this possible when the reviewer does not even use their real name let alone provide an address for service in the review?
A relatively new but increasingly popular solution is to go after the host of the platform to obtain their records about the reviewer’s identity.
In a recent case the Federal Court made orders to facilitate service of Australian court proceedings on the offices of Google in the United States. Those proceedings sought disclosure of personal identifying details of the persons who particularly negative reviews posted using Google reviews. Similar orders have been made in other cases.
These recent decisions pave the way for more litigants to seek orders against reviewing platforms to reveal the identities of anonymous users. Some critics say that these cases may force hosts to delete negative reviews which may have the impact of stifling essential and justified criticism.
Does any blame fall on the review platform or search engine?
Roping in a large corporate defendant increases the plaintiff’s chances of being able to actually recover damages. It also guarantees a hard fight in most cases, so you want to be pretty confident in your position.
Hence the million-dollar question: are Google, Facebook and the rest of them liable as publishers of defamatory material?
The answer is, in typical lawyer fashion: it depends.
Review platforms have historically argued that they are merely ‘innocent disseminators’ - or intermediaries - for information posted on their websites by others.
Courts are carefully examining this argument and in many cases finding it unmeritorious.
In the case of Voller, several media companies were held liable for defamatory comments posted by others on their Facebook pages. The plaintiff did not even seek to pursue the posters, just the operator of the Facebook pages. Central to the Court’s decision in that case was evidence about the control which the media companies were able to exert over their Facebook pages, specifically their ability to filter comments or to hide them pending review. A High Court appeal is pending.
In Trkulja, the High Court held that search engine ‘auto-completes’ were capable of being defamatory. While the Court did not finally determine Google’s liability as a publisher (the case concerned an interlocutory application by Google to strike out the claim, and not the hearing of the case itself), it made comments to the effect that liability would turn on Google’s involvement in and control over the compilation and publication of search results.
The search engine’s liability as a publisher was later confirmed in Defteros, where Google was held to be a publisher with respect to hyperlinked search engine results, some of which associated a Melbourne Lawyer with figures of the Melbourne criminal underworld. Important in that case was the fact that Google had taken no action in respect of the plaintiff’s complaints about the defamatory search results.
The common theme in the above examples is control: the host website or search engine must be proven to be capable of exerting some control over the material posted and has failed act even when the specific content has been drawn to its attention with a request to remove it.
Google, by specific legislation, is immune from defamation liability in the United States and other countries. These recent decisions in Australia may encourage it to seek similar protection here.
Can I have the review removed pending the litigation?
Another typical lawyer’s answer: Yes (*).
- but with fine print.
First, you should ask them to remove it. Occasionally a direct request on a solicitor's letterhead will do the trick.
If that doesn’t work then an injunction might be an option.
An injunction is a court order restraining a person from doing something or compelling a person to do something. Injunctions can be ‘interim’ (granted quickly pending a more detailed hearing) ‘interlocutory’ (pending the trial of the dispute) or ‘permanent’ (as the name suggests, forever). Failure to comply with the terms of an injunction is a criminal offence known as ‘contempt’.
In a defamation case, injunctions might be sought to restrain a person from continuing to publish negative reviews or to force a person to remove the offending publication to prevent further harm being done while the matter is litigated.
Injunctions are not made for the asking. They are powerful and invasive orders and can only be made if the applicant can satisfy a number of requirements. These are:
(a) there is a serious question to be tried - the plaintiff must be able to prove that they have an arguable case;
(b) that the plaintiff might suffer an injury for which damages are an inadequate remedy – ie. the court should act now to prevent the injury occurring or continuing;
(c) the balance of convenience favours the injunction – the court will weigh up the damage to the publisher if the injunction is granted against the damage to the plaintiff if the injunction is not granted. Free speech is also considered as part of the balance of convenience requirement
The price the plaintiff pays for obtaining an interlocutory injunction is by providing an undertaking as to damages. This is a formal ‘promise’ to the Court to compensate the defendant if it later turns out that the plaintiff did not have grounds to obtain the injunction in the first place. So if the plaintiff loses the trial in which they were granted an injunction at the outset, they could be required to pay the defendant for any damages it suffered while the injunction was in place (for example, a news website might lose advertising revenue resulting from an injunction requiring it to remove an online article).
Injunctions are frequently granted in defamation cases, particularly those involving apparent malice on the part of the publisher.
What are the key take-outs?
For the keyboard warriors:
- You can be sued for an unjustifiable negative online review. Believing your words to be true will not prevent a lawsuit and you will have to prove the ‘truth’ of your comments at the trial.
- Think very carefully about your motivations. If you genuinely want to provide constructive feedback about a bad experience, is it really necessary to do it in a public forum? - Could you give the feedback to the business privately, for example by telephone or email?
- If you are looking for a way to take out your anger by writing a scathing review, be prepared to open your wallet. Publicly disparaging the business may expose you to an expensive lawsuit or, in an extreme case, a criminal charge.
- If you decide that it really is essential to post a negative online review, then be very careful about the words used. Stick to facts and your own personal experiences. Stay away from exaggeration, unnecessary adjectives (eg. ‘manifestly’, ‘grossly’), and legal conclusions (e.g. ‘negligent’, ‘unlawful’ etc.). Consider whether you can prove the things stated in your review and how you might do that months down the track.
For the business which takes pride in its online reputation:
- You may have a cause of action for defamation and/or injurious falsehood if unjustifiable negative reviews are published about you.
- In the right hands, the law can be engaged not only to pursue the publisher for damages but also to reveal the publisher’s identity or to require the publisher to remove the offending post pending a trial.
- The host of the reviewing platform may not be entirely blameless particularly where the review is patently false and a request has been made for its removal.
For the media organisation or moderator of a reviewing platform or app:
- You are not immune to liability simply because the defamatory comments are not your own.
- Think carefully about the control you have over content posted on your page. The courts will take a dim view of turning a blind eye to patently false reviews posted by others. This is particularly so where you are deriving a financial benefit from ‘page hits’.
- Should you do more to keep track of your user’s details – is it possible for your users to register anonymously?
 Bauer Media Pty Ltd v Wilson [No. 2]  VSCA 154.
 Nationwide News Pty Limited v Rush  FCAFC 115.
 NSD206/2021: Charles Christian Porter v Australian Broadcasting Corporation.
 Al Muderis v Duncan (No 3)  NSWSC 726.
 Gacic v John Fairfax Publications Pty Ltd  NSWSC 1920
 Cheng v Lok  SASC 14.
 Gacic, above.
 Nationwide News Pty Ltd v Weatherup  QCA 70.
 Rush v Nationwide News Pty Ltd  FCA 357.
 Criminal Code Act 1899, s. 365.
 Kabbabe v Google LLC  FCA 126.
 Kukulka v Google LLC  FCA 1229 and Alison v Google LLC  FCA 186.
 Voller v Nationwide News Pty Ltd  NSWSC 766.
 Trkuija v Google LLC  HCA 25.
 Defteros v Google LLC  VSC 219
 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.
 Bruder Expedition Pty Ltd v Tracey Leigh  QSC 116, Goldberg v Voight  NSWSC 691.