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Do defamation laws apply to online reviews?

in Business Law by Jeremy Zimet on

Popular review sites like Urbanspoon and Trip Advisor are often the go to places to write or read reviews about our experiences at restaurants or hotels.

These sites regularly receive reviews that some business owners believe can be damaging for their small business, which raises the question about how defamation laws could apply to someone simply leaving a piece of their mind about their experience.

But have you defamed a business in your review and can the target of your attack take action against you?

The simple answer is that Australian law allows small businesses - with fewer than 10 employees – to take defamation action over material that is posted to online review sites. 

So what would be deemed a defamatory online review?

Customers who publish malicious or negative reviews with an ulterior purpose can face thousands of dollars in penalties. Obviously it depends on the facts of what occurred, but there are serious repercussions for someone if their review was found to have defamed a business.

Restaurant owners in Victoria recently raised concerns about negative reviews, and the impact it can have on their business.

It’s important to remember that for a small business to be successful in this type of defamation case, it would have to show that the online review was not the honestly held opinion of the reviewer or the review was malicious. That is, the reviewer’s intention was to damage the reputation of the business by making others want to shun or avoid it.

A long-running case in New South Wales, in which an experienced food critic was ordered to pay more than $600,000 over a restaurant review, is an extreme example of this type of defamation. The review was published in a major newspaper not an online review site, but it should still serve as a warning to all would-be reviewers.

It is important to consider that when writing an online review:

  • the review should be treated as if it is being published to the world at large, given how fast online publications can spread (or go viral);
  • it is not published for an ulterior motive;
  • the review is truthful and accurate about any experience you have. This doesn’t mean you can’t use humour or satire in making your review enjoyable for others to read; and
  • there can be serious repercussions if an online communication is defamatory of a person/business;

A small business that believes it has been the victim of defamation should act quickly to minimise the damage. As a first step, it may be prudent to contact the website which has published the review to ask that the material be removed and also seek independent legal advice.

Thankfully, most of what is published online is not malicious and merely someone’s honestly held opinion. In these circumstances, if a comment is substantially true, or represents the honestly held opinion of the reviewer, then a small business will have difficulty in bringing a defamation claim. 

For more information, visit defamation law.

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