What is defamation?

Defamation occurs when somebody communicates or publishes material which is harmful to the reputation of another person. 

Defamation is primarily governed by the common law and Defamation Act 2005 (NSW).

What is needed to prove defamation?

The following elements need to be satisfied in order to establish a cause of action in defamation. It should be noted that a company is interchangeable with person in this instance.

1. The Material was “published” to at least one person other than the party who was allegedly defamed;
2. The Material must identify the allegedly defamed person either directly or indirectly, or be capable of doing so;
3. The Material must be “defamatory” to the ‘ordinary, reasonable’ person, which means it must be likely to:
   1. Cause the person to be shunned, shamed or avoided by others;
   2. Adversely affect the reputation of the person in the minds of right-thinking members of society; or
   3. Damage to the person’s professional reputation by suggesting a lack of qualifications, skills, knowledge, capacity, judgement, or efficiency in his or her trade, business or profession. 

Possible defences to defamation?

There are several defences for defamation, namely:

1. Justification (section 25 of the Defamation Act 2005). This defence can be successful if the publisher can prove that the material is substantially true. 
2. Contextual truth (section 26 of the Defamation Act 2005). This defence requires the publisher to prove that one or more of the claims is sustainably true.
3. Absolute privilege (Section 27 of the Defamation Act 2005). This defence involves the publisher proving that they published the content on an occasion of absolute privilege i.e. parliamentary bodies, the ombudsman etc. 
4. Publication of public and official documents (section 28 of the Defamation Act 2005). This defence requires the publisher to prove that the published material was part or a fair summary of a public document.
5. Fair report of proceedings of public concern (section 29 of the Defamation Act 2005). Similar to the publication of public and official documents defence, this defence requires the publisher to prove that the material was or was a part of a fair report of any proceedings of public concern. 
6. Qualified privilege (section 30 of the Defamation Act 2005). This defence is established if the publisher can prove that the person who the material was published to, has an interest in having the information. Further, if the publisher can prove that the material was published to inform the person or that the publisher’s conduct was reasonable then this defence applies.
7. Honest opinion (section 31 of the Defamation Act 2005). This defence can be utilised if the alleged defamatory material was an expression rather than a statement of fact. Additionally, if the publisher can prove that the opinion was related to a matter in the public interest or the opinion was based on proper material, then the defence can be established. 
8. Innocent dissemination (section 32 of the Defamation Act 2005). This defence involves the publisher proving that they published material in the capacity of a subordinate distributor i.e. that they are not the primary distributor. Further, the publisher must demonstrate that they neither knew or could have reasonably known the content was defamatory and the publisher’s lack of knowledge was not due to any negligence. 
9. Triviality (section 33 of the Defamation Act 2005). This defence can be proven if the publisher can show that the published material was unlikely to cause harm.

So does a bad google review constitute a cause of action in defamation?

Google reviews are published to the site for all users to see hence a bad google review could prevent future customers from choosing your business. They can also negatively impact a business’ reputation whilst undermining its qualifications, skills, knowledge, capacity, judgement, or efficiency in the trade, business or profession.

A colourful 2020 case, Smith v Jones, held that a google review was a publication. The implications of this decision are that now a google review can satisfy the first requirement needed to prove defamation. Based upon this fact and Bristow v Adams [2012] NSWCA 166, damage to the plaintiff’s reputation is presumed. As a result, the court recognises the impact that a defamatory google review can have on a business by awarding the plaintiff over $80,000 in damages. 

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DISCLAIMER: The information contained in this article is general and is not intended to be advice on any matter. It is for information only and is not legal advice. In the event of a legal problem, you should seek legal advice.