With a recent trend in negative Google review defamation cases favouring the applicant, business owners cannot be blamed for thinking that defamation proceedings are the answer to removing negative reviews.
But is this realistic? Or is there more to these cases than meets the eye?
Defamation and Google Reviews
In our experience, unless there has been a clear breach of Google’s Prohibited and Restricted Content policies, it can be extremely difficult to compel Google to remove a negative review.
As such, it is understandable that businesses and individuals are turning to defamation law, as a means to remove negative reviews and have their loss of reputation compensated.
In recent cases, health practitioners defamed by negative reviews have received between $170,000 and $530,000 in court awarded damages (see Al Muderis v Duncan [2017] NSWSC 726; Tavakoli v Imisides (No 4) [2019] NSWSC 717; Dean v Puleio [2021] VCC 848 and Nettle v Cruse [2021] FCA 935).
However, this growing trend is not entirely representative of what most health practitioners or practices can expect if they initiate defamation proceedings.
Case Law Trends
The above cases illustrate that the amount of damages awarded to successful plaintiffs will be dependent on the nature of the publications, the extent of the health practitioner’s reputation and their specialisation in any manner, and the extent of the involvement (if any) by the defendant in defending their actions.
Nature of the publications
In all of the above cases, it was relevant that the reviewers posted multiple publications that were false and so egregious that they justified the significant award of damages.
A common thread amongst the above cases was the inclusion of defamatory imputations related to serious professional negligence or incompetence, which was false and unfounded. In two of the above cases, the defendants created entire websites dedicated to falsely alleging that the health practitioners had engaged in gross professional negligence by “butchering” patients and provided supposed evidence of the “botched” patients. Other common themes throughout the negative reviews were that the health practitioners had acted in an unprofessional and unethical manner and had lied to and bullied patients.
Additionally, each case held that the reviewer had a malicious intent in publishing the defamatory imputations for the sole purpose of harming the health professionals’ reputations. The defamatory publications were intended to inflict maximum damage to their reputation, or to punish or vilify the health practitioner, which went beyond any legitimate grievance the reviewer may have had.
Based on the above, we wouldn’t anticipate that a single negative review which does not directly target a health practitioners’ reputation will sound in such a significant award of damages, unless they are blatantly false or strike at the heart of a health practitioner’s professional obligations.
Specialised reputation
In all of the above cases, the plaintiffs were highly specialised health practitioners involved in a niche area of practice, with extremely well known and well-regarded reputations. For example, Mr Al Muderis was described as having a “reputation of the highest order” for his humanitarian work and extensive contribution to the medical field.
In reliance on their impeccable reputations, the plaintiffs sued on the basis that their personal reputation or brand, had been damaged by the defamatory imputations. These cases were not argued on the basis that the reputation of their business had been damaged, but that their personal reputation which they relied on for income, had been tarnished by the reviews.
It is currently unclear whether a health practice, instead of an individual practitioner, would be able to argue that their reputation was of such an extent to justify a significant amount of damages. The question becomes, how has that practice distinguished itself from other similar practices to such an extent that their reputation was so well known and well regarded that a significant amount of damages would be awarded.
This is further complicated by the fact that only excluded corporations can commence defamation proceedings within WA. An excluded corporation is either one which has objects which do not include obtaining a financial gain for its members or a corporation that employs fewer than 10 persons and is not related to another corporation. Therefore, unless a health practice is small enough for defamation proceedings to be commenced, it is not feasible for health practices, rather than individual practitioners, to revert to defamation law as a means to remove negative reviews.
Engagement by the defendant
It is also important to note that in the above cases, the respective defendants did not engage in the proceedings. It was therefore easier to establish the harm and loss caused by the defamatory imputations because the parties were not required to address any opposing evidence. Instead, each judgment accepted evidence of a downturn in business and reduced Google review ratings as sufficient evidence of a causal connection between the defamatory imputations and the health practitioner’s diminished reputation. This not only made the proceedings simpler but would have reduced the expenses required to argue the case.
However, although the lack of defendant engagement can be favourable to the plaintiff in the proceedings, it also proposes a rather significant hurdle to recovery of any damages awarded by the Court. If the defendant cannot be found, then it will be very difficult for the plaintiff to enforce the judgment. In the event that the defendant can be found, it’s unlikely that they’ll have the means to pay a portion of such a significant amount of damages, let alone satisfy the entire judgment.
This lack of guaranteed compensation poses a significant risk to applicants, especially because there are often significant legal costs incurred in the pursuit of the defamation proceedings.
Read together, these cases are better understood as the exception, rather than the rule in defamation proceedings for negative reviews.
Key takeaway
Although there is a growing trend of significant damages awards in negative review defamation cases, we caution practitioners that these kinds of proceedings remain high risk and that practitioners should consider other courses of actions before commencing legal proceedings.
If you require any advice regarding management of a negative Google review, please contact Prue Campbell and Enore Panetta at Panetta McGrath Lawyers.
Authors: Prue Campbell and Morgan Barnsby.
