Wednesday, October 17, 2018

It’s time to review your rights

Tourism and hospitality operators and retailers are being urged to smarten up on their legal rights regarding online reviews as the busy summer holiday season gets underway.

According to Rigby Cooke Lawyers partner Elizabeth Guerra-Stolfa, the recent ACCC court case against Meriton has put the issue of negative online reviews in the spotlight, with many businesses unsure of their legal rights and responsibilities. The Meriton case involved the ‘masking’ by the property giant of negative reviews.

“Online reviews are now a reality of conducting business in our digital age and it’s understandable that a business would want to do everything it can to mitigate the damage of a negative review,” Ms Guerra-Stolfa said.

“Managing your review systems incorrectly can land you in hot water, so business owners and managers need to understand where they stand legally.

“It may seem obvious but before embarking on a legal battle, a business should first attempt to engage in constructive communication with the person who posted the review, either by replying or inviting the person to contact the business to discuss the matter privately.

“If non-legal avenues fail and the review continues to have a serious detrimental impact, the business may have legal recourse under various Australian laws.”

Defamation laws differ across states, but as a general rule, defamation is defined as the publication of a false statement that harms a person’s reputation.

“A defamation claim needs to clearly demonstrate the publication was a communication to a third person, the communication adequately identified you or your business and the communication was false,” Ms Guerra-Stolfa said.

“Only individuals, companies with fewer than 10 employees or not-for-profit organisations can sue for defamation however, and the claim has to have commenced within one year of the defamatory statement being made, although the period may be extended in limited circumstances.”

Where a business is excluded from bringing a claim for defamation, for example if it has more than 10 employees, the business may be able to take action for the tort of injurious falsehood. However there is a very high threshold to meet for these types of claims.

“For an injurious falsehood claim, it is necessary to show not only that the published statement was false but also that it was maliciously made and the business suffered damage as a result,” Ms Guerra-Stolfa said.

“Unlike defamation, you have six years (from the date of the publication) to bring court proceedings, however these claims are difficult to prove.”

Another form of legal recourse is to bring a claim for misleading or deceptive conduct under the Australian Consumer Law (ACL). If the review about the business occurred in ‘trade or commerce’ and is misleading or deceptive (or likely to mislead or deceive), there may be a claim under the ACL.

“What this means is that the misleading or deceptive review must be made in the course of business and not simply by a disgruntled individual,” Ms Guerra-Stolfa said.

“As such, this avenue is more appropriate where a competing business writes a negative review about your business.”

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