Trapping The Online Trolls – When Defamatory Reviews Damage Your Business

In recent years, disgruntled or vengeful customers have utilised Google as a weapon to unleash their aggression or frustrations against business owners and individuals alike for products or services rendered. False Google reviews can have detrimental and sometimes irreversible effects on the trajectory of small to medium-sized businesses. In this article, Senior Associate Lachlan Boyle and Law Clerk, Riley Hickey, consider the ever-changing landscape of defamation actions following the recent surge in proceedings stemming from Google reviews.

What is Defamation?

Defamation can briefly be described as the communication of material that causes serious harm to the reputation of an individual, where the allegations against them are untrue. To successfully establish a cause of action in defamation, the individual must sufficiently prove a series of elements that indicate that a matter published against them bore a meaning that is or was defamatory. Those elements include that:

1. the matter complained of must bear a defamatory meaning (whether directly or indirectly);
2. the matter must explicitly and specifically identify or concern the complainant;
3. the matter must be sufficiently published to at least one party (other than the complainant); and
4. the publication of defamatory matter about the plaintiff has caused, or is likely to cause, serious harm to the person’s reputation.

Prior to the Reforms

A national framework for model defamation provisions was enacted in 2005, with each Australian State and Territory responsible for its implementation. In that regard, the original provisions focused on the publication of defamatory content by traditional media organisations, such as newspaper outlets. With the proliferation of widespread social media and internet usage, the previous defamation framework soon became inadequate, and reform was required.

Considerable amendments through a series of staged developments have intended to modernise the cause of action to align with social media and internet usage, marked by the landmark High Court decisions of Fairfax Media Publications Pty Ltd v Voller & ors [2021] HCA 27 (‘Fairfax v Voller’) and Google LLC v Defteros [2022] HCA 27. Key areas to address within the amendments included:

(a) clarification around the lack of knowledge and understanding of the consequences of sharing defamatory material online;

(b) clarification around the ‘publisher’ of defamatory material, especially where a third-party publisher is involved; and

(c) the ability to consistently reset the limitation period for the publication of the internet material, based upon when the material was accessed by the user.

Current Position – Defamation

The current reforms strike a necessary balance between freedom of expression and protection against reputational damage. The enactment of the model provisions ensures consistency across Australian States and Territories while also incorporating many significant amendments to the action itself, including:

1. introducing a “serious harm” element intended to increase the threshold necessary to commence an action in defamation. To satisfy this element, a plaintiff must prove that they have suffered severe reputation harm or are likely to suffer such harm in the future as a direct consequence of the publication of defamatory material;
2. mandating the service of a ‘Concerns Notice’, with specific formalities to ensure compliance with a plaintiff’s statutory obligations;
3. a public interest defence for reports of public concern, where the defendant must prove that the published material is necessary for public interest as opposed to a sole focus on proving the truth of its contents; and
4. the introduction of the single publication rule.

Single Publication Rule

The single publication rule is intended to prevent the continual ‘reset’ of the defamation clock, which was seemingly reset upon each “new” access of the defamatory material in question. By introducing the defamation reforms and the single publication rule, the limitation period for a defamation action for online or electronic publications is one year from the date the allegedly defamatory matter was first published or sent.

Despite the above, the Court has the power to extend the limitation period to up to three years from when the matter complained of was first published, subject to the plaintiff establishing that it was not reasonable to have commenced an action within twelve months.

Readers should, however, be vigilant that the single publication will not be applicable where the content of a subsequent publication is considered substantially different from that of the original publication.

Wrapping up Defamation

The tort of defamation, once primarily associated with traditional media, has undergone significant amendments to adapt to the challenges posed by the internet and social media. In an era where the power of online platforms and user-generated content can either elevate or tarnish one’s reputation with a few clicks, the recent reforms are crucial in protecting individuals and businesses from unwarranted damage.

RAMSDEN LAWYERS – HOW WE CAN HELP WITH DEFAMATORY REVIEWS

Whether you’ve been affected by defamation, are concerned about potential liability for a previous publication, our Litigation and Dispute Resolution Division has considerable expertise in defamation actions for both claimants and defendants. We are happy to arrange an obligation-free initial consultation to assist you in navigating the relevant legislation for your circumstances.

The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice.  Specific advice should be sought about your circumstances.