Op-Ed: Google reviews can be nasty, but are they defamatory?

The impact of a negative google review on your business page cannot be underestimated. An adverse review can have a significant effect on your business’s web traffic and deter potential new clients from engaging your business.

A one-star review with a negative comment can be unfair, unkind and cruel, but it might not be enough to pursue an action in defamation.

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Rose Litigation Lawyers recently acted for a small business owner who was the victim of particularly heinous google review.

The review stated that our client (in summary):

• was dishonest and immoral;
• hid behind contract terms to cover their shoddy services;
• provided a false report which caused financial loss;
• does not accept responsibility;
• should be ashamed of themself.

The reviewer also told all potential readers to go elsewhere for our client’s services, and not engage our client.

However, the reviewer in fact never engaged our client to provide any services and the review was completely false.  Unfortunately, because of the review, our client’s business suffered a significant decrease in revenue, and lost valuable referrals, web traffic, and new business.

‘Serious harm’

The Defamation Act 2005 (Qld) requires an aggrieved person to demonstrate they have suffered ‘serious harm’ as a result of the defamatory publication.

It is not enough for the published material to be defamatory. It must be proven that the publication has caused, or is likely to cause, ‘serious harm’ to the reputation of the aggrieved person.

‘Serious harm’ is not defined in the Act. The ‘serious harm’ element was introduced into the Act to address significant concerns that defamation law was increasingly being used for trivial, spurious and vexatious backyard claims. It abolished the common law rule that damage was to be presumed and not proved. In Newman v Whittington [2022] NSWSC 249, following a hearing conducted only on pleadings and therefore on the assumption that the factual assertions made by the Plaintiff were true, the Honourable Justice Sackar struck out allegations because:

• there was insufficient particularisation concerning the downloading of the allegedly defamatory material from the internet;
• the Plaintiff was unable to identify:
• anyone in the viewing audience who may have accessed the particular defamatory material on the relevant Facebook page;
• which of the viewing audience downloaded the matter complained of;
• to whom the defamatory material was published.

In our client’s case, Rose Litigation was able to demonstrate that ‘serious harm’ had been suffered. Our client’s financial records demonstrated a clear loss in revenue which started on the date of the defamatory review. Rose Litigation was able to directly link the loss to the defamatory google review. Further, written statements were obtained from third parties confirming their unwillingness to engage or recommend our client’s services as a result of the review

What should your business do in response to a false google review?

Before commencing any action in defamation, the aggrieved party must issue a ‘Concerns Notice’ to the publisher of the defamatory material. The aggrieved party can also demand the immediate removal of the review. A Concerns Notice must meet various requirements under the Act including:

• Setting out the specific defamatory imputations that the review conveys; and
• setting out the ‘serious harm’ suffered by the review.

The publisher will have 28 days from receiving the Concerns Notice to respond. The response may include an offer to make amends.

Rose Litigation Lawyers negotiated with the publisher of the google review and reached a settlement without commencing formal proceedings.

Wrapping up

The google review was removed, and the reviewer agreed to publish a further review confirming the original review was false, as well as confirming that by email for our client to circulate to concerned clients. The reviewer was also required to pay our client compensation for the business losses suffered as a result of the review.

In this case, ‘serious harm’ was able to be established on part of our client and ultimately yielded a successful outcome.

Originally published by Rose Litigation Lawyers HERE

Helen Driscoll

Helen Driscoll joined Rose Litigation Lawyers in 2021 and practises in commercial litigation and dispute resolution. She has a broad litigation background and has regularly appeared in the Supreme and District Court of Queensland. Helen is the current President of Queensland Young Lawyers, a not-for-profit organisation dedicated to supporting the personal and professional development of legal practitioners in Queensland. She believes that as a lawyer you have a duty to help and law is a helping profession; we have the privilege and responsibility to help and not hinder. Helen is passionate about access to justice and advocating for those who cannot otherwise help themselves.

www.roselitigation.com.au/