It has long been accepted that one of the primary means to attract customers is through positive online reviews, such as on Google. However, for a business owner, there can be nothing more frustrating than a customer (or worse, someone who has never been a customer) publishing a false and defamatory review regarding your business.
What happens when these false comments and reviews start affecting your business? There are a number of things a prudent business owner should consider to protect their reputation.
Is the review defamatory?
A review can be defamatory in nature if it is published, identifies the business, and has, or could, cause serious harm to the reputation of the business. If the business is operated by a corporation, it must be shown that the review caused serious financial harm.
Contrary to popular belief, a review is defamatory in nature even if the imputations conveyed by the review are true. Although, a publisher of a review that is defamatory can defend an action in defamation by saying that the imputations conveyed were justified as they were true or substantially true.
There are also various other defences that can be raised by a publisher, such as honest opinion, absolute privilege, fair report, qualified privilege and various others.
What can I do about the defamatory review?
The first thing business owners should do is to contact the host of the review site (for example Google), request that it take down the review, and to put them on notice that they may also be liable as a publisher to account to the business for damages in defamation. In many circumstances, a properly prepared letter, particularly from a solicitor, may be able to convince the host to promptly remove the review.
Irrespective of whether or not the host takes down the review, there will undoubtedly have been a period of time where the published review would have been seen by various persons, which may include potential customers from whom you will no longer receive business.
Prior to commencing court proceedings, unless there are exceptional circumstances the aggrieved business will have to write a concerns notice compliant with section 12A of Defamation Act 2005 (Qld) and send it to the publisher.
A concerns notice will usually need to provide a copy of the publication(s), list the imputations conveyed, provide particulars as to how it has caused serious harm to the business (and if a corporation also the financial loss), and finally demand an apology, compensation, and reimbursement of legal costs incurred by the business.
A business that is operated by a corporation with 10 or more employees may need to consider whether they are able to make a claim in defamation. If not, they may have other avenues available to seek to recover damages such as a claim in injurious falsehood and/or misleading and deceptive conduct.
What if the concerns notice is ignored?
If the concerns notice remains ignored for a period of 28 days, you may then be entitled to commence court proceedings, usually seeking a permanent injunction restraining the publisher from publishing any further defamatory reviews, damages, and costs.
Sometimes there are circumstances where in the face of the concerns notice the publisher will retaliate and continue to publish further defamatory reviews. If that occurs, urgent steps can be taken to apply for an interim injunction to restrain the publisher from making any further publications while the court proceedings are conducted.
How do I prove my case?
In addition to the preliminary points of proving that the defendant published the review, and that it is defamatory, a business will need to prove several things relevant to the quantification of damages.
The quantification of damages has various factors to it, which may include the number of people who saw the review, the length of time the review remained published, the seriousness of the imputations conveyed, the reputation or social standing of the business prior to the review being published, whether malice was involved and/or there was an unjustified failure or refusal to apologise and the actual financial loss and damage suffered.
If a defamatory review is published, prompt action should be taken to compile and preserve evidence which may include:
- taking a screenshot of/printing the online review;
- seeking to obtain the contact details and the identity of the publisher;
- monitoring analytics of your Google/other host page to see how many people have visited the page while the online review was published;
- keeping a record of persons who have commented (whether online or in person) on the review, particularly those who may have had the business’s reputation lowered in their eyes;
- considering whether there has been any substantial opportunity that the business may have been close to obtaining, that may be lost due to the potential customer/client seeing the defamatory review; and
- compiling any documentary evidence, or witness statements, which can be used to impugn any allegations by the publisher that the imputations are true or substantially true.
We would recommend that you keep this article somewhere accessible so that in the unfortunate event of a publisher posting a defamatory review, you will have information immediately available to you to properly consider the next steps you should take.
Once you accept that you will need to take some action with respect to the publication of the defamatory review, you should promptly contact our experienced defamation litigation lawyers at Marino Law to discuss the matter and formulate a strategic plan to promptly resolve the issue.