In 2020, we became even more dependent on online business as brick and mortar stores faced prolonged closures and customers were largely based at home. Google reviews became a vital decision-making tool for customers on whether they should use a business making them a hugely persuasive tool with just a handful of negative reviews able to significantly sway a customer’s interest.  One unfavourable review can damage a business’ or individual’s reputation and cause a substantial loss of revenue.

So, when is a review considered more than just negative and leaning into defamatory territory? What is the line between someone sharing their honest opinion in the review and that review becoming defamatory?

Who can make a claim for defamation?

The only parties who can commence a defamation action are as follows:

  • A person – proceedings cannot be brought by or continued on behalf of a deceased estate.
  • A not-for-profit corporation.
  • A small corporation with less than 10 employees.

If the review was not made against one of these types of people or businesses, it is not possible to start a defamation claim.

A person does not need to be specifically named in a publication for the statement to be defamatory. The person only needs to be reasonably identifiable by the description in the material such as ‘the Prime Minister of Australia’ or ‘the owner of the local Post Office.

It may also be defamatory if you refer to a class of people, for example “All the waitresses at cafe ABC are…”

Even if you do not fit within the above categories you should seek legal advice, as:

  • (a) often a person is identifiable in the post and defamation proceedings can be brought; or
  • (b) if you can identify actual damages / loss incurred as a result of the post a claim for injurious falsehood may be brought by a business which doesn’t have the same requirements as to who can bring the proceedings.

What if I don’t know who has written the review?

The Courts have recently ordered Google and other similar companies to provide information about the identity of reviewers.

Are there defences to defamation?

There are a number of defences available for defamation claims. Two of the most common defences are truth and honest opinion.

Truth Defence

If the claims made in the Google review are true, you cannot claim that you have been defamed. This is a complete defence to any allegations of defamation.

Honest Opinion

Everyone is entitled to have and publish an honest opinion and this cannot be considered defamation. If the person writing the Google review honestly held the opinion that they expressed in the review and it is based on truth, this is a defence against defamation.

The defence of honest opinion is available when[1]:

  • (i) The review is an opinion (rather than statement of fact);
  • (ii) The opinion relates to a matter of public interest; and
  • (iii) The opinion is based on proper material – meaning it must be substantially true.

However, even if this defence is established, it can still be overcome and the Google review considered defamatory if:

  • (i) the opinion was not honestly held by the author of the review at the time of publication;
  • (ii) the person or business had reasonable grounds to believe that the opinion was not honestly held by the author at the time of publication; or
  • (iii) the review was left maliciously. If the review is designed to serve a purpose other than to express an honest opinion, such as to satisfy a grudge or negatively affect the person or business, there is evidence of malice. Language of the comment itself may be evidence of malice, although mere exaggeration does not render a comment unfair.

Conclusion

Negative reviews can be crippling for online businesses and are particularly painful when they are defamatory rather than an honest review of the service and products.

If you believe you or your business have been defamed on the internet or social media you should seek legal advice on the merits of your claim as soon as possible after the material is published.

For further information, please contact Catherine Ballantyne, Special Counsel at: catherine.ballantyne@madgwicks.com.au

[1] Defamation Act 2005 (Vic)

About the Author

Catherine Ballantyne

Special Counsel
A business disputes specialist, Catherine is a trusted advisor to businesses and individuals in obtaining successful outcomes. Businesses rely on Catherine as a trusted advisor as well as lawyer in guiding them through complex litigation and disputes.

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