So you've hired someone to design your packaging, and you're less than thrilled with the final product, or that meal you recently had at the new fine-dining restaurant was anything but fine, there may be the temptation to give that person or business a big thumbs down on social media.
But be careful before you let loose and vent all your frustrations online. A scathing review can really damage a businesses’ reputation and potentially land you in Court for defamation.
That doesn’t mean you can’t write an honest and measured account of your experience – but go too far, and you could end up with a damages award against you for hundreds of thousands of dollars.
Defamation arises when a person communicates to at least one other person a statement about a person or small business that is likely to damage that person or small business’ reputation. The communication can occur in any number of ways, such as on a telephone call, in a newspaper, or a closed Facebook group. And remember, there is no constitutionally guaranteed right to free speech in Australia like in the US. So what exactly can you or can’t you say if you want to review somebody’s goods or services but don’t want to land up in Court?
Truth and honest opinion are often the most helpful defences in an action for defamation arising from a negative online review. NSW also recently introduced significant changes to the State’s defamation laws, including a new “public interest” defence, where a party can defeat a claim for defamation if they can show that the matter complained of is in the public interest, and they reasonably believe this to be so. There’s also a new “serious harm” threshold to discourage frivolous lawsuits. It requires the plaintiff to prove that the review caused or would likely cause serious harm to their reputation.
A cautionary tale:
In one case, a woman wrote a negative review of a plastic surgeon on Google, claiming that he charged her for procedures he never performed. Even though the plastic surgeon denied the claims, he lost a big chunk of his business. His reputation, so crucial to any medical professional, suffered irreparable harm. He managed to obtain an urgent court order prohibiting the woman from writing any further disparaging comments online about him, but she went ahead and posted another negative review. The Court ordered her to pay $530,000 as damages. One of the key considerations in awarding this amount was that the woman went beyond just stating her honest opinion about the surgeon and knowingly made up false allegations about him – she did so to punish the surgeon and cause him maximum harm.
There is no doubt that the ability to share and publish reviews of goods and services helps customers make informed decisions, so it’s all about finding a balance. When making a negative review, the golden rule is to ensure that what you are saying is substantially true and is your own opinion rather than a statement of fact. For example, saying you were disappointed with the flavour of the food you ordered is acceptable but saying that the chef is a thief for taking your money is probably a step too far.
Contact us if you become the subject of a nasty online review, and we can help advise you on your options.