Before reaching for their wallet, customers are likely to turn to online reviews to research products or services they are interested in purchasing. Disingenuous reviews, however, can pose a threat to a business’ credibility. As a business owner, it is important for you to know when and how to take action against a fake review.

Can Online Reviews Be Defamatory?

An online review can be defamatory if the review:

  1. was published to a third person (i.e., not just shared between 2 people);
  2. identifies or is about the business;
  3. damages the reputation of the business; and
  4. the law does not provide a defence to the review (such as truth, honest opinion or qualified privilege).

Online reviews are also subject to Australia’s competition and consumer laws. A false review can be potentially misleading and deceptive. That is because it intends to persuade a customer to think and act a certain way based on false information.

Can My Business Take Legal Action Against the Reviewer?

You must first consider whether your business is eligible to defend itself in defamation law. Under Australian defamation legislation, even if another party posted defamatory online reviews about your company, only a business with less than ten full-time equivalent employees is eligible to take action.

Secondly, you must be within the limitation period to take legal action. The limitation period is how long Australian law gives you to take action on a potential claim. In defamation law, you have one year from the date the reviewer published their review to commence legal proceedings. The court is reluctant to extend this unless there are unusual circumstances.

What is a Recent Example of Defamatory Online Reviews?

Builders Champion Homes commenced court proceedings in 2016 against 45 families in New South Wales who were unsatisfied with the construction of their homes and left negative reviews on www.productreview.com.au. The customers posted the reviews under headings that recommended consumers avoid the building company.

Although the parties settled the claim before proceeding to trial, this is an example of the real potential for legal action to arise because of false or misleading online reviews.

What Obligations Do I Have If I Host Online Reviews on My Website?

Businesses are responsible under consumer law to manage the content on their website, including online reviews. It is potentially misleading to customers to have fake reviews on your website, including falsely negative reviews. You should have a policy in place for moderating online reviews.

What Are My Options for Removing Defamatory Online Reviews?

It is always advisable to try and mediate the problem before taking legal action. If you know the identity of the reviewer, ask them to remove the review. If the reviewer is unwilling to remove the defamatory review, contact the site hosting the review and ask them to remove it. You should only consider legal proceedings if after contacting the reviewer and the host site, neither remove the review. A disputes lawyer can assist by issuing a concerns notice to the author of the defamatory online review to put them on notice that you will commence proceedings if they do not fix the situation.

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If you have any questions or need assistance removing a defamatory online review, get in touch with LegalVision’s disputes resolution lawyers on 1300 544 755 or fill out the form on this page.

Kirstie Le Lievre
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