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When Can Writing a Review Land you in trouble?


In today’s increasingly social-media savvy society, reviews of restaurants, hotels, events, books, movies, and experiences are everywhere on the internet.  Sites such as “Tripadvisor,” “Yelp,” “Product Review,” Facebook and Twitter are just 5 examples of the thousands of forums which facilitate the average punter in publishing their experience.

Many of these reviews are negative.

When can writing a review land you in trouble?  The answer is when the review in question can be characterised as defamation.

A recent NSW Court of Appeal decision has again highlighted the danger in publishing negative reviews.

In Gacic –v- John Fairfax Publications Pty Ltd [2015] NSW CA99, John Fairfax Publications Pty Ltd and its reviewer, Matthew Evans, were ordered to pay damages to the Plaintiffs after being successfully sued by the proprietors of Coco Roco.  John Fairfax Publications Pty Ltd had published Evans’ negative review about the restaurant, in long-standing proceedings which had culminated in an appeal to the High Court in 2007.
The present proceedings related to the amount to be awarded as damages to the proprietors.

There were 3 aspects of the review that the proprietors took issue with:
(a) that they sold unpalatable food at Coco Roco 
(b) that they provided bad service at Coco Roco, and
(c) that one of the proprietors is incompetent as a restaurant owner because he employed a chef at Coco Roco who makes poor quality food 

The reviewer relied on a defence that what was written was truth and the reviewer’s honest opinion.  

That argument was rejected.  The court found that there was no evidence that food or service at Coco Roco was in any way poor or below standard.  Particularly, there was no evidence that the food served at Coco Roco was unpalatable.  Accordingly, the court found that the review was wholly defamatory to the plaintiffs and damages were awarded.

So when is a negative review defamation?

Defamation is a tort which occurs when defamatory material relating to an individual is published.  Material will be considered defamatory if it could:
1. Injure the reputation of the individual by exposing them to hatred, contempt or ridicule;
2. Cause people to shun or avoid the individual;
3. 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 in writing or defamation communicated verbally.

For an action in defamation to be successful, 3 elements must be satisfied:
1. The information must be communicated by the defendants to a third party (publication);
2. The information and/or material must identify the complainant as the subject (identification); and
3. 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, then the person committing defamation may be liable to pay damages to the complainant as compensation for the damage caused to their reputation.

Under the Act, an action for defamation must be brought within 12 months of the date of publication of the material.  There are defences available to a claim for defamation.  The first is that the allegation is true.  The second is that material was published on an occasion of absolute privilege.  A third defence to defamation is that it was based on honest opinion.  This is where reviews or Facebook comments are often on the borderline.  An opinion is an honest opinion if it is a matter of public interest and based on the proper material.

It’s also a defence if the comments are viewed as being so trivial as to be unlikely to cause harm.  However, the defences available are considered on the facts of each individual case.

Remedies

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 that the complainant considers their comments and actions to be defamation.

Damages for defamation are often difficult to calculate and are awarded at the discretion of a Judge.  Often in defamation cases, there is a risk that the costs of pursuing an action in defamation will be disproportionate to the outcome.

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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