Protecting your pharmacy: online reviews and defamation explained
Would you know what to do if your pharmacy received a negative or defamatory online review?
In this article, Principal Douglas Raftesath from Meridian Lawyers explains the law, highlights successful defamation claims, and explores options for responding to adverse online reviews.
These days anyone can easily leave an online business review. They can choose to be identified or stay anonymous. If a review is negative, it could potentially damage the reputation of your business.
To curb the flow of unmeritorious defamation claims, amendments to the Defamation Acts in Australia were introduced on 1 July 2021. The most significant amendment is that “serious harm” is now an element of a cause of action for defamation. This means that in order to successfully pursue a claim for defamation, a person must establish that serious harm has been suffered or is likely to be suffered.
Newman v Whittington [2022] NSWSC249, is the first case to consider the new amendments, with the Judge confirming:
- The serious harm threshold would normally be determined before trial unless special circumstances arose.
- The onus is on the plaintiff to prove serious harm in every case as a fact, and this is a necessary element to a defamation claim.
- In order to establish serious harm, consideration must be given to the facts of each matter and the impact of the publication, rather than to harm that might be inferred from the use of the words used within the publication and the generally understood meaning of those words.
- The s10A serious harm provisions abolished the common law presumption that a plaintiff has suffered damage upon the publication of defamatory material.
Successful Defamation Claims for Online Reviews
In recent years (prior to the 1 July 2021 amendment), several disputes have proceeded through the Courts at the instigation of unhappy reviewees. A number of these disputes have led to significant damages being awarded in favour of the reviewee (i.e. the small business).
For these cases, it seems likely the “serious harm” threshold issue could also have been satisfied by the plaintiffs, if they had needed to do so.
In Cheng v Lock [2020] SASC14, a Google My Business review about a solicitor stated: “stay clear of this place! Gordon [Cheng] brings shame to all lawyers and is infamous for his lack of professionalism amongst the Law Society in Adelaide. He is only concerned about how to get most of your money.”
This review was also published in Chinese. Mr Cheng had never actually acted for the reviewer and the two had never met. Mr Cheng had lost around 80% of his clients and had suffered irreparable damage to his reputation. Mr Cheng was awarded $750,000.
In Dean v Puleio [2021] VCC848, a number of Google reviews were posted by a former patient of a periodontist. The former patient accused the doctor of many things including being unprofessional, failing to diagnose various illnesses and overcharging. The doctor suffered a downturn in new patients following the reviews. The doctor was awarded $170,000 in damages.
In Nettle v Cruse [2021] FCA935, a former patient of a plastic surgeon conducted what the Court described as an “appalling and entirely unjustified and unjustifiable negative internet campaign” regarding the cosmetic surgeon’s work and conduct. There were a large number of defamatory posts made by the former patient using fake names. The patient was ordered to pay $450,000 in damages.
In Kabbabe v Google LLC [2020] FCA 126, this involved a dentist who was the subject of anonymous defamatory reviews. Dr Kabbabe commenced proceedings against Google, seeking orders that would enable him to identify the anonymous reviewer. Dr Kabbabe obtained the orders he sought and was able to identify the reviewer.
Your Options – How to Respond
For any business, including pharmacies, it is almost inevitable that at some time a negative review will be received. When this happens, the best approach to adopt will depend on your individual circumstances and on the seriousness of the adverse review.
Deciding what to do is a judgment call and is likely to depend to some extent on what the negative review actually says.
Your options are:
Option 1: Take No Action
If the negative review is just one bad review among many positive reviews, it will often be best to do nothing. Most rational people will accept that the person who left the negative review is an anomaly, and in the circumstances, it is unlikely that significant damage will be caused.
Option 2: Reply with a Calm Response
If a decision is made to post a reply to the review, it is important not to be aggressive or rude. A calm response to a negative review is much more likely to indicate, to anyone who reads the exchange, that you or your business are reasonable and that the negative review is out of the ordinary.
Outrage Allegations
When reviews feature outrageous allegations, there is a risk that some people will believe that the matters raised in the review are true. Even if they are not certain whether they are true, they may decide as a matter of caution to take their business elsewhere.
If you are concerned a negative review may have a significant adverse effect on your business, you should seek advice from a lawyer.
Option 3: Have a Lawyer Issue a Concerns Notice
You could ask a lawyer to send a ‘concerns notice’ to the author of the review. A bad review may result in significant emotional harm and potentially catastrophic economic loss for the person or business the subject of the review.
In our experience, when an author of an outrageous review receives a well-drafted concerns notice from a lawyer, in most cases, they are prepared to take steps to remove the review and to offer an apology.
HOW WE CAN HELP
Meridian Lawyers is a leading pharmacy law practice in Australia. We have acted for many pharmacists throughout the country and are the principal legal advisor to the PGA.
To learn more visit: meridianlawyers.com.au/pharmacy.