Damages to lawyer for defamatory online reviews

A recent judgment of the South Australian Supreme Court (Cheng v Lok [2020] SASC 14) has awarded a lawyer $750,000 in damages for a defamatory review posted on Google My Business.

The reviewer, Ms Lok, posted an extensive negative review of Mr Cheng, alleging that he was unprofessional, and provided false and misleading advice to his clients. Mr Cheng argued that the review caused him to lose around 80% of his clients and irreparably damaged his reputation and his business.

The court heard that not only had Mr Cheng never been retained as Ms Lok’s lawyer, the pair had never met. When Mr Cheng contacted Ms Lok to remove the review, her response was to change her alias name and post further, similar reviews.

“The only conclusion that can be drawn is that her intention was to destroy the plaintiff’s livelihood, and cause him distress, anxiety and financial hardship.”

This case reaffirms the courts’ willingness to protect victims of false or defamatory online reviews.  The impact caused to the Plaintiff’s business also highlights the substantial financial damage that can be caused to a business from negative content being published online. Bringing genuine legal accountability into the online forum is an area into which Cove Legal has invested significant sector focus.

Cove Legal specialises in resolving legal disputes with particular expertise in bringing and defending defamation claims.  Principal Roger Blow is recognised as a media law expert, particularly in liability arising from the use of social media.  If you are facing damage to your reputation or business due to unfounded online reviews, then contact us today to see how we can help you.

Roger Blow, Practice Director P: +61 8 6381 0326 or e: roger@covelegal.com.au

This publication is not intended to provide and does not provide legal advice. You should seek professional legal advice relating to your specific situation(s) before taking any action based upon its contents.

 

Defamation Basics Part III

Remedies: offers to make amends and litigation

In our third and final instalment of our defamation series, we now turn to the options available to an aggrieved person (or plaintiff) that has been defamed and what an author/publisher (or defendant) can do if they receive a concerns notice.

Concerns notice

An aggrieved person may issue a written notice to the author/publisher of defamatory material explaining the defamatory implications within the publication.  If the notice fails to adequately particularise the imputations of concern, the publisher may request further and better particulars about them from the aggrieved person.

Offer to make amends

The publisher may make an offer to make amends within 28 days from receipt of the concerns notice.  The offer must be in writing and must:

  • state what defamatory imputations the offer relates to;

  • include an offer to publish a reasonable correction of the material in question;

  • if the material has been given to someone else by the publisher, include an offer to take reasonable steps to tell the other person that the material is or may be defamatory of the aggrieved person; and

  • include an order to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred in considering the offer.

If the publisher carries out the terms of an offer to make amends that is accepted, the aggrieved person cannot then continue or enforce an action for defamation against the publisher in relation to the material in question.

If an offer to make amends is made in relation to the material in question but is not accepted, it is a defence to an action for defamation against the publisher if:

  • the offer is made as soon as practicable after receiving the concerns notice;

  • the publisher was ready and willing, on acceptance of the offer, to carry out the terms of the offer; and

  • the offer was reasonable in the circumstances.

Apologies

An apology by a publisher to an aggrieved person cannot be submitted as evidence of admission of fault or liability, however can be a factor in mitigating damages.

Litigation – commencing an action and damages

Revisiting Part I – Bringing a defamation claim in Western Australia, a plaintiff can issue proceedings against a defendant within one year of publication of the defamatory material.  The plaintiff is required to prove that:

  • the material was published to a third person, other than the plaintiff;

  • the material was of and concerning the plaintiff; and

  • the material was defamatory of the plaintiff.

A successful plaintiff may be entitled to an award of damages for non-economic loss, which may be in the form of:

  • general compensatory damages – currently limited to a maximum of $389,500; and/or

  • aggravated damages - the amount of damages will depend on the circumstances of the case and can exceed the current statutory limit.

In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time the material was published.

Exemplary damages (that is, damages designed to punish the defendant rather than compensate the plaintiff) cannot be awarded in defamation actions under the legislation in Western Australia.

Damages can be mitigated by such actions as the defendant apologising or publishing a correction of the defamatory material.

Check out our blog for the other posts in this series: Part I – Bringing a defamation claim in Western Australia and Part II - Defences to a defamation claim.

Cove Legal offers specialist expertise in the area of media law, with a focus on protecting corporate brands and reputations.  Roger Blow is a leading defamation lawyer in Western Australia and can be found listed as a social media law expert on expertguide.com.  He regularly provides commentary concerning media law issues to television, radio stations and newspapers such as the West Australian, The Age and AFR.

If you would like advice or assistance with any legal matters involving defamation, we would be keen to hear from you.  Please contact:

Roger Blow, Principal, Ph: +61 8 6381 0327 or roger@covelegal.com.au

Tennille Provost, Senior Associate, Ph: +61 8 6381 0326 or tennille@covelegal.com.au

This publication is not legal advice. You should seek professional advice before taking any action based on its contents.

Defamation Basics Part I

With the growth in popularity of social media platforms such as Facebook, Twitter and Instagram, the number of defamation claims in Australia has increased significantly over the past few years.  The online community is fast learning that it is subject to the same defamation laws as newspapers and other news outlets and that they need to think before they post or tweet, or indeed even before they ‘like’.

In this blog series to be released over three editions, we explore what an aggrieved person (or plaintiff) must prove to succeed in an action for defamation; what defences are available to the publisher (or defendant); and finally, the remedies available to the plaintiff, including issuing a concerns notice and commencing proceedings against the defendant.

Part I – Bringing a defamation claim in Western Australia

The law of defamation in Western Australia is governed by the Defamation Act 2005 (WA), which came into force on 1 January 2006 as part of new uniform defamation legislation that applies to all States and Territories.

To establish a claim for defamation, the plaintiff must be able to prove all of the following:

  • Publication – broadly defined in the legislation to include both verbal and written material, such as texts, emails, images and online communications. The images or words must have been seen or heard by a third person. Liability for defamation will extend beyond the original author in circumstances where the communication is then shared (for instance, by ‘sharing’ on Facebook or ‘retweeting’ on Twitter).

  • Identification – if the publication does not directly name the plaintiff, there are facts or details which enable the ordinary reasonable reader to identify the plaintiff.

  • Defamatory – the publication contains false information, an imputation or a representation about the plaintiff that damages their reputation or makes others think less of them. This is determined by considering whether an ordinary, reasonable person would think less of the person about whom the material is published.

A claim for defamation is only available to either individuals or else corporations with less than 10 employees or not for profit or charitable organisations.  Court proceedings must be issued against the defendant within one year of the publication of the defamatory material.

Check out Part II in our defamation blog series, Defences to a defamation claim.

Cove Legal offers specialist expertise in the area of media law, with a focus on protecting corporate brands and reputations.  Roger Blow is a leading defamation lawyer in Western Australia and can be found listed as a social media law expert on expertguide.com.  He regularly provides commentary concerning media law issues to television, radio stations and newspapers such as the West Australian, The Age and AFR.

If you would like advice or assistance with an legal matters involving defamation, we would be keen to hear from you.  Please contact:

Roger Blow, Principal, Ph:   +61 8 6381 0326 or roger@covelegal.com.au

Tennille Provost, Senior Associate, Ph: +61 8 6381 0326 or tennille@covelegal.com.au

This publication is not legal advice. You should seek professional advice before taking any action based on its contents.