Reviews of products, restaurants, hotels, events, books, movies, and experiences are everywhere on the internet and social media.
Many of these reviews are negative.
However, writing a review can land you in trouble when the review in question is defamatory.
When is a negative review defamation?
Defamation occurs when defamatory material relating to an individual is published. Material will be considered defamatory if it could:
- Injure the reputation of the individual by exposing them to hatred, contempt or ridicule;
- Cause people to shun or avoid the individual;
- Lower the individual’s estimation by right thinking members of society.
Under the Defamation Act 2005 (Qld) (“the Act”), there is no distinction between defamation communicated in writing or verbally.
Under the Act, an action for defamation must be brought within 12 months of the date of publication of the material. For an action in defamation to be successful, 3 elements must be satisfied:
- The information must be communicated by the defendants to a third party (publication);
- The information and/or material must identify the complainant as the subject (identification); and
- The information and/or material must contain matter that is defamatory, regardless of whether the material was intentionally published or not (defamatory material).
If these elements are satisfied and no defences are available, the person committing defamation may be liable to pay damages to the complainant as compensation for the damage caused to their reputation.
What are some of the defences to defamation?
The defences available are considered on the facts of each individual case. Some possible defences include:
- The allegation is true.
- The material was published on an occasion of absolute privilege.
- It was based on honest opinion. An opinion is an honest opinion if it is a matter of public interest and based on the proper material.
- The comments are so trivial as to be unlikely to cause harm.
To prevent court proceedings occurring, the Act provides that the offending party, if notified of the defamatory material, may offer to make amends, including properly correcting the defamatory material or issuing an apology. Any such offer must be made within 28 days of receiving a notice in writing of the defamation.
Damages for defamation are often difficult to calculate and are awarded at the discretion of a Judge.
In certain circumstances, defamation may also be considered a criminal offence under the Criminal Code of Queensland.
While many people choose to vent their frustrations through the assumed anonymity of the internet, the reality is that your review may be sourced back to you and carry a risk of defamation proceedings being commenced against you.
So, it may be prudent to re-think before posting that review or comment.
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