Before you write that scathing online review, beware of defamation

Having suffered some terrible product or service, writing an online review can be cathartic. But you can be sued for defamation if you disparage a person's reputation.

Platforms like Facebook and Google make it very easy to leave a scathing online review. (In fact, they encourage it. It's a goldmine for data.) 

In extreme cases, consumer reviews can even move corporate giants to change their policies.

For those on the other side of the equation, online reviews can be terrifying. I know from experience – anonymous student evaluations are part and parcel of being a university lecturer.

Bad reviews can be disastrous for small businesses. Understandably, some reviewees will be motivated to silence negative reviewers. In extreme cases, they may even go to court.

You can be sued for a scathing review

In Australia, freedom of speech is not as free as some might think – even when “spoken” on the internet. Although we have an implied freedom of political communication in our constitution, we do not have a US-style right to free speech. Defamation law places significant limitations on our freedom of speech.

Courts have the power to force a person to remove content from the internet, or pay damages to the plaintiff for harm done to their reputation. Failure to comply could mean prosecution for contempt.

Professional reputation is highly valued by defamation law. Damages can be significant if defamation causes an actual loss of business, or even a loss of opportunity. In the absence of proven economic loss, substantial “general” damages may still be awarded as a consolation for hurt and distress.

When defamation occurs online, damages awards may increase to account for the “grapevine effect”: the way salacious content tends to be shared and repeated on the internet.

Companies like McDonald’s can’t sue under Australian defamation law, but this does not apply to not-for-profits, or small businesses with 10 employees or less. Hotheads should proceed with caution before slagging off their corner café.

However, there are a couple of barriers that could make it harder to sue.

Firstly, some “persons” cannot sue. Under Australia’s uniform defamation laws, certain corporate bodies – that is, companies – do not have a cause of action in defamation. Unlike overseas, large companies like McDonald’s can’t sue under Australian defamation law, but this does not apply to not-for-profits, or small businesses with 10 employees or less. Hotheads should proceed with caution before slagging off their corner café.

Secondly, a review must identify a person directly or indirectly in order for someone to be able to sue for defamation. A generic Facebook rant about “how bad restaurants are in blah suburb” will not meet the requirements of “identification”.

These barriers are not insurmountable. In 2014, a group of restaurateurs were awarded more than A$600,000 in damages for a defamatory review in The Sydney Morning Herald. Fairfax stood by the critic who made the harsh review, which remained online for years. While the average rant on Zomato won’t cause a restaurant to close down, this case illustrates that an expression of opinion about a business can have very serious consequences.

What if your review was anonymous?

Not all review platforms require you to disclose your identity. A recent example is Rate My Boss, a website created by union United Voice, which allows workers to review their employers anonymously. Anonymity makes sense from the workers’ perspective.

From the employers’ perspective, the anonymity problem may be avoided by pursuing the publishers of the website rather than the reviewer. This is the standard model for a lot of defamation litigation; media organisations will often defend defamation on behalf of their writers.

A disgruntled reviewee may go one step further and go after the internet giants that link people to defamatory content. These intermediaries have much deeper pockets and the practical ability to prevent something from being accessed. Whether Google should be responsible as “publisher” of its search engine content is about to be tested in the High Court.

As for you, the reviewer: if you have been particularly nasty in an anonymous review, the reviewee may litigate to find out who you are. It may be tricky, but a would-be plaintiff has options: a couple of years ago, movie pirates were threatened with the prospect of a court order compelling iiNet to reveal their identities in a copyright dispute. The context is different, but the anxiety felt by those Matthew McConaughey fans demonstrates that online naughtiness is not as anonymous as we might think.

Play nice and none of this matters

If you play the ball, not the man; if you focus on what you actually experience, rather than making grandiose claims; and if you focus on the truthful aspects of a product or service in a harsh but fair review, you are less likely to fall afoul of defamation law.

The Conversation

Michael Douglas is a senior lecturer in law at the University of Western Australia. 

Source The Conversation