In today’s online world, Google reviews and the like are becoming a hugely persuasive factor when it comes to whether or not someone will use a business. All it takes is one customer to write an unfavourable review to damage a business’ or individual’s reputation and cause a substantial loss of business.

So, when is a Google review considered defamatory? 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 McDonalds’.

It may also be defamatory if you refer to a class of people, for example “All the shop assistants at shop XYZ are…”

Are there defences to defamation?

Yes! Some 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

A person is entitled to publish an honest opinion and this cannot be considered defamation. If the person writing the Google review honestly held the opinion, 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

Anyone posting a review needs to be careful that they do not cross the line from honest opinion to defamation.

If you believe you 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)