Defamation law takes a step forward: How businesses can unmask anonymous keyboard warriors

online reviews defamation

Madgwicks Lawyers special counsel Catherine Ballantyne. Source: supplied.

In today’s online world, Google reviews are becoming a hugely persuasive factor when it comes to whether or not someone will use a business or buy a product. All it takes is one customer to write an unfavourable review to damage a business’ or an individual’s reputation.

While the law is able to assist in removing negative reviews that are defamatory, this is only possible when you know the identity of the perpetrator. The issue faced by many businesses is that often an online review is posted anonymously. You cannot issue proceedings if you do not know the identity of the person you are suing.

The issue of keyboard warriors’ anonymity was examined in a recent Federal Court judgment. A Melbourne dentist sought to identify an anonymous reviewer in order to pursue defamation actions after they left a nasty Google review.

The Federal Court held:

  • The dentist Plaintiff could seek preliminary discovery from Google as to the identity of the reviewer (who had used a pseudonym).
  • The application could be served on Google in the USA by international registered post.

This judgment is a huge step forward in defamation law and will have ramifications for Google, Facebook, Twitter and alike. It will assist in unmasking the anonymous keyboard warriors who hide behind pseudonyms to post highly defamatory and damaging posts, with little or no consequences.

One can only hope that this may dissuade some from posting defamatory comments and change their belief that they will not be found or brought to justice.

Since this judgment, there have already been similar applications made to the court, including by criminal lawyer Zarah Garde-Wilson to unmask the author of a review on her law firm’s website. It is expected that more cases will follow.

Who can make a claim for defamation?

So, you’ve found out who posted the review. When is a review considered defamatory?

The only parties who can commence a defamation action are as follows.

  • A person. Proceedings cannot be brought by or continued on behalf of a deceased estate.
  • A not-for-profit corporation.
  • A small corporation with fewer than 10 employees.

If the review was not made against one of these types of people or businesses, it is not possible to start a defamation claim.

A person does not need to be specifically named in a publication for the statement to be defamatory. The person only needs to be reasonably identifiable by the description in the material such as ‘the Queen of England’ or ‘the owner of the local Smith’s Bakery’.

It may also be defamatory if you refer to a class of people, for example, ‘All the retail staff at the ABC store’.

Are there defences to defamation?

Yes! Some of the most common defences are truth and honest opinion.

Truth

If the claims made in the Google review are true, you cannot claim that you have been defamed. This is a complete defence to any allegations of defamation.

Honest opinion

A person is entitled to publish an honest opinion. If the person writing the Google review honestly held the opinion, based on truth, this is a defence against defamation.

The defence of honest opinion is available when:

  • The subject matter is an expression of opinion (rather than a statement of fact);
  • The opinion relates to a matter of public interest; and
  • The opinion is based on proper material, meaning it must be substantially true.

If this defence is established, it can only be overcome if one of the following holds true.

  • The opinion was not honestly held by the defendant at the time of publication.
  • The defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time of publication.
  • Malice may render a comment unfair. If a comment is designed to serve a purpose other than to express an honest opinion, such as to satisfy a grudge or injure the plaintiff, there is evidence of malice. Language of the comment itself may be evidence of malice, although mere exaggeration does not render a comment unfair.

Conclusion

Keyboard warriors will now find it harder to hide behind pseudonyms and avoid the legal consequences of defamatory posts. Anyone posting a review needs to be careful that they do not cross the line from honest opinion to defamation.

If you believe you have been defamed on the internet or social media you should seek legal advice on the merits of your claim as soon as possible after the material is published.

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