Bad Reviews & the Australian Law — When to Go Legal

*Ding* You’ve received a notification your business has received a new online review — yay!

But wait, it’s not a good review… In fact, it’s a horrible review and there is absolutely no way it’s true. You may not even recognise the reviewer.

How do you remove that bad online review? Is it even possible to sue over a negative review? What can you do to defend your business?

Here’s what you need to do:

1. Take a deep breath and detach yourself personally from the review.
2. Discover if you can use the negative review to your advantage.
3. Respond to the review.
4. Learn how to request to remove the review.

But what if the review can’t be removed and you believe it’s fake or malicious? Now it’s time to investigate where the law may be on your side.

Localsearch spoke with Lawyer and Associate Professor at Bond University, Dr Francina Cantatore, to find out:

• What types of legal action a business may be able to take over a bad review.
• When to consider going legal over a bad review.
• What you need to do when building a case over an unlawful review.
• How to get free legal advice as a business.

P.S. This article is for general information only and does not replace professional legal advice or counsel, and does not take into consideration your personal situation. Localsearch nor the author are liable for any misuse of the information in this article. Please contact your local business legal service for advice specific to your circumstances. 

Under the Australian Consumer Law (ACL)  , consumers are protected in leaving honest and opinion-based online reviews. This does mean businesses do have a leg to stand on if a dishonest or defamatory review has been left, but it also means they have regulations they must abide by.

There are three main legal claims for online reviews businesses may wish to investigate:

• Defamation claim.
• Injurious falsehood claim.
• Australian Consumer Law claim.

Where you have evidence where any of the three potential claims may have occurred, it is worth sending the details to the review platform in question before seeking legal advice. Review platforms are required to adhere to ACCC regulations, so may be able to remove the review with no legal action if sufficient evidence can be provided.

See: How to remove reviews from Facebook, Google and Localsearch. 

For a review to be defamatory, the review must be public and harm a person’s reputation or be about a business with fewer than 10 employees. The review must identify the person or business.

Where a review clearly identifies an individual, this person may wish to pursue defamation outside of the business, incurring the costs of doing so themselves. However, the reviewer may still have a defence against a defamation claim if they have evidence of the truth or can defend the review as being an honest opinion.

Under the Defamation Act 2005, there are different conditions per state in Australia as to who can claim defamation and for what. This may mean needing to file a Concerns Notice to the reviewer before being able to proceed with a defamation claim or seeking other legal avenues.

What is a Concerns Notice?

Queensland Government Crown Law defines a Concerns Notice as:

Injurious falsehood is a false statement about a person or business’s self, goods or services that has been made to a third party, is malicious in nature and has caused damage directly as a result of the statement.

But isn’t this the same as defamation? Not quite.

The similarity between defamation and injurious falsehood is both false and harmful statements that have been communicated to a third party. However, injurious falsehood protects a person’s interest of property, products or business, while defamation protects personal reputation.

To prove injurious falsehood, you must be able to demonstrate:

1. A false statement has been made about your business, goods or services.
2. The false statement was published to a third party, such as a review website, online or on social media.
3. There was malice by the person who made the statement.
4. Damage has been done as a direct result of the above.

Injurious falsehood claims typically involve a competitor of a business or person making false statements to tarnish the recipient’s reputation.

Under the Australian Competition & Consumer Act 2010, “It’s against the law for a business to create fake or misleading reviews or to arrange for others to do so.”

This not only applies to people creating fake reviews about your business but also if you create reviews for your own business, incentivise customers to do so or make any attempt to block negative reviews. As let’s face it, no one is perfect 100% of the time, so a negative review is inevitable for most businesses.

If the ACCC is made aware of false reviews from either side of the story — either your business being the victim or the perpetrator of false reviews — they may take action, and infringement notices and fines may take place.

The case of Cheng v Lok [2020] started in 2018 and was not resolved until 2020.

In 2018, an Adelaide lawyer, Mr Gordon Cheng, received an online review from a name he did not identify as someone who used his business’s services. He was not aware of the review until 2019, by which time he had already noticed a loss of 80% of his clients.

On complaint to Google, the review was removed.

However, the reviewer proceeded to submit further reviews. When Mr Cheng submitted a Concerns Notice to Google, the reviewer proceeded to change the name on their review. To make attempt to contact the reviewer or resolve the matter, Mr Cheng posted a Concerns Notice and further summons publicly. The review was deleted.

Following this, a new review appeared on Mr Cheng’s business’s Google My Business (now Google Business Profile) under the name of an acquaintance of Mr Cheng, who he had not represented. On contacting the friend, it ensued it was the friend’s daughter.

You’re welcome to read the full case notes for finer details. However, as a result of the defamation of Mr Cheng, business losses, the false reviews and the stress on Mr Cheng, he was awarded $750,000 AUD.

In 2017, a patient of plastic surgeon Dr Kourosh Tavakoli claimed medical negligence in a review on Google. Dr Tavakoli pursued the reviewer for defamation and injurious falsehood, having experienced a near 25% reduction in visitors to their website the week following the publication of the review.

In 2020, the court ordered payment of $530,000 to the NSW plastic surgeon for damages as a result of defamation from the reviewer’s first statement in a review on Google. They were also ordered to not publish, re-publish or keep published any of the claims they made online.

Localsearch.com.au is a good place to start your research when finding legal assistance near you.

 About Dr Francina Cantatore. 

Dr Francina Cantatore is an Associate Professor at Bond University, Special Counsel with Cronin Miller Litigation and is the Director of the Bond Law Clinic Program at Bond University. With a background and a PhD in Copyright Law, Francina is highly sought after for media legal relations, including the effects of Consumer Law on businesses. She is also the author of three books, several chapter books and more than 30 journal articles and many international conference papers. Visit Francina’s LinkedIn for more information about her background, experience and contact details.