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Most businesses rely on online reviews to promote their products and services. Studies have shown that a large majority of consumers read online reviews before visiting a business and trust online reviews as much as personal recommendations. Clearly, online reviews are crucial for business success. This means that negative online reviews can negatively affect your business’ reputation and success. What can you do if someone leaves a negative online review on a review platform about your business? In certain circumstances, an online review could be considered defamatory of your business or you personally. This article will explain how defamation could apply to an online review. 

What is Defamation? 

To show the online review is defamatory, you must prove that the review is false and negatively affects your business or employee’s reputation. The elements of establishing a defamation claim include that the online review:

  • has been published or communicated to a third party; 
  • clearly identifies or is about the person or business being defamed;
  • is defamatory or harms the reputation of the person or business; and 
  • publication of defamatory matter has caused or is likely to cause serious harm to the reputation of the person or business. 

If the online review identifies and defames an employee, it is likely that you can bring a claim against the reviewer for defamation. However, if the review defames your business, you can only bring a claim against the reviewer if you have fewer than ten employees.

How Do You Show That the Online Review Has Caused Serious Harm? 

Recently the defamation laws have changed in Australia to include a serious harm threshold. This means that if a negative review defames a business, the business must prove that the publication has caused serious harm to its reputation. They also need to prove that it has caused, or is likely to cause, serious financial loss to their business.

Some ways that you could show the court that an online review has caused, or is likely to cause serious harm includes: 

  • loss of profit or business sales; 
  • cancellations of bookings; 
  • loss of employment or contracts; or 
  • other losses of a financial nature that the defamed person or business has suffered by reason of the defamatory publication.

Most defamation claims regarding online reviews would not escalate through the court system. However, there are recent examples of people making successful defamation claims in regards to defamatory online reviews.

For example, a specialist dentist won a $170,000 payout for a one-star Google review in the Victorian County Court. Another example is an Adelaide lawyer who won $750,000 over bad Google reviews about his law firm when the reviewer was never a client. In both instances, the defamed parties were able to show financial loss due to the defamatory online review.   

Could the Honest Opinion Defence Apply? 

A person can leave an online review about your business which is their honest opinion of their experience of your products or services. The honest opinion defence could apply if the online review that is alleged to be defamatory is: 

  • their honest opinion; and
  • considered to be in the public interest; and
  • based on proper materials.

Therefore, to establish this defence, they must be able to show that:

1. The Opinion is Based on Proper Material

Firstly, the online review must be based on some kind of proper material. Proper material is defined as being: 

  • set out in the online review in either specific or general terms;
  • known widely; or 
  • accessible from a reference, link or other access point but otherwise apparent from the context in which the online review was published.

2. The Communication is Substantially True

Secondly, the online review must be:

  • considered substantially true; or 
  • could be considered an absolute or qualified privilege; or 
  • was published on an occasion that attracted the protection of this defence or the public interest defence or publication of public documents defence.

As long as the online review was the reviewer’s honest opinion and meets the above requirements, they could rely on this defence. Additionally, the law does not require the opinion to be reasonable. Hence, the opinion could even be extreme, as long as the person publishing it genuinely holds the opinion.

If someone would like to raise this as a defence to a defamation claim, they must be very considerate in their response. This is because statements like “I didn’t mean it” will preclude them from relying on the defence and asserting that the communication was their honest opinion later on.

The Online Review is Not Defamatory but is Negative. What Are My Options? 

If someone has left a negative online review about your business or you personally, but you do not think that defamation applies, there are some other non-legal ways to deal with your online review. For example, you could: 

  1. reach out to the reviewer and see if you can resolve the issue. Perhaps you can reach a compromise, and if the reviewer feels happier about their experience, they might agree to remove the review; 
  2. comment on the review and address the reviewers concerns, but do not agitate an online argument. You could focus on providing further context to give other potential customers a balanced view of the particular complaint; and
  3. report the review to the review platform and request that they remove it, if the review is offensive or uses bad language.

Key Takeaways 

Defamation is a complicated area of law and can be costly to pursue. Before you plan to bring a claim against someone for defamation, you should consider whether there is some way to ask the person to remove the online review first. After exhausting all these avenues, you may want to consider making a defamation claim. If you have concerns about any online review that could be defamatory, our dispute resolution lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions

What is a defamatory review?

A defamatory review involves the publication of an online review that clearly identifies a person or small business. It must also damage that person or small business’ reputation and be published or communicated to a third party.

What can I do if someone has left a negative review?

If the review is negative but not defamatory you may be able to resolve the issue by reaching out to the reviewer. If the reviewer feels happier about their experience, they might agree to remove the review. You could also comment on the review and politely address the reviewers concerns.

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