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Defamation and online business reviews - should you "go legal" or turn the other cheek? - 29 March 2017

In the increasingly online world in which we live, businesses almost invariably use web-based platforms and social media to promote their goods and services and generally present themselves in a favourable light to customers and potential customers.

However, the other side of the coin is that some customers frequently want to share their experiences (good, bad or indifferent) with businesses online as well. That’s great if the person wishes to say something favourable or positive. However, what if they post something unfavourable or nasty online? 

I am often consulted by clients concerned about online reviews which are derogatory of their businesses or them personally.  How do you respond to a bad review? Do you turn the other cheek and ignore, or do you bring in the heavy artillery and have your lawyers threaten fire and brimstone if the review is not withdrawn, retracted and apologised for immediately?  Is there a half-way point between these two extremes?

 There is no right or wrong answer to these questions, because each case depends on its own facts and circumstances.  However, when clients seek my advice on their options following a disparaging online review of them or their businesses, I generally ask them to focus on the following things:

Where is the review posted? 

Has the reviewer breached the website host’s guidelines or rules for acceptable content? Most providers have rules prohibiting content that is abusive, vulgar, obscene or discriminatory.  Will the host respond favourably to a “take down” notice? 

Is the review derogatory of an individual or the business itself? 

Many businesses nowadays are operated by companies and, with few exceptions, companies cannot sue for defamation, although they may have other options if the reviewer unfairly and maliciously attacks the business’ products or services.

How bad is the review?

As I said in a previous blog (to read click here), defamation law in my view is about freedom of speech, not protecting reputations.  An adverse online review might be defensible on the ground that it represents the reviewer’s honest opinion, no matter how wrong-headed that opinion may be.

Can you identify the author of the review?

Regrettably, the web provides a cloak of anonymity to online publishers who are not prepared to put their money where their mouths are and identify themselves. It is difficult to make the website host or platform provider legally responsible for the publication of defamatory content on their platforms. You might be able to obtain a court order forcing the website host to reveal the identity of the anonymous reviewer but that can be costly and, with very few exceptions, most website hosts will oppose any court order being made against them. 

Make an honest assessment of how harmful the review is

How will it look if your first reaction to criticism is to shoot the messenger?

How have other members of the public reacted to the review?

Has it generated much online discussion? Do you risk giving unwanted credibility to the review by taking legal action against the author?

Finally...

Remember two things about taking defamation action in court. First, the court cannot give defamation victims the thing they most want, namely a timely retraction and apology from the author. Secondly, court action will provide a forum for the reviewer to air their grievances in open court and under the protection of privilege. This is why the media love defamation actions because they can report anything said in court without fear of being sued for defamation.

For more information or discussion, please contact HopgoodGanim Lawyers’ Special Counsel Brett Bolton, or the Litigation & Dispute Resolution team.


HopgoodGanim Lawyers is a full commercial law firm. Our firm has 41 partners and more than 280 staff. We operate nationally and internationally with a focus on Asia from our two key locations of Brisbane and Perth. We offer highly skilled and agile legal teams across key sectors and areas of practice. In all of our areas of speciality, our lawyers are recognised by legal publications as leaders in their fields.

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