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What Can You Do If Someone Posts A Bad Online Review
15 November, 2019 | Nathan Tetzlaff
The internet started off as the wild west – largely unregulated, where free speech reigns and anonymous content is the norm.
This is slowly changing, but people still behave online in ways that they wouldn’t do in person. An example of this online review culture. People don’t think twice about venting with a bad review that might not be justified or might even be malicious.
Websites like Yelp specialise in allowing people to review restaurants and other services. Google also allows people to review businesses, and those reviews can become prominent to anyone searching for that business’ name.
These review sites rely on the reviewers being honest and sane, which isn’t always the case. Bad reviews can arise from some perceived failure or slight, a customer who is delusional or impossible to satisfy, or from a competitor.
These kinds of reviews are easy to deal with because review websites generally have policies and procedures in place to moderate obvious troll reviews or provide your business with a right of reply. Internet users are also moderately savvy about reviews and probably won’t be put off by a couple of unexplained one-star reviews.
If you have received negative feedback on a reviewing website you can find out whether there is a right of reply policy, and whether the website has a complaints procedure you could use.
But what about someone going after your business online in other ways? The internet gives anyone a voice on platforms such as Facebook, LinkedIn, Reddit or private blogs. What can you do if someone posts untrue or biased information about you or your business?
The law of defamation is one option to consider. A statement is defamatory when it is “published” to a third party (which includes being posted online), and it tends to harm your reputation.
It is a defence to defamation to prove that the statement or post was true, or was an honest opinion based on true facts. This would protect someone who was critical of a meal they received at your restaurant if that was just a matter of their personal preference; this won’t protect somebody who lies and says that they saw cockroaches in the kitchen.
Defamation proceedings are costly so these are usually only useful for wealthy individuals, or businesses where the defamatory statement could cause severe financial harm. Still, the threat of a defamation claim coming from a lawyer might be enough to cause someone to change their behaviour.
The Harmful Digital Communications Act (HDCA)
An alternative and more accessible option comes from the Harmful Digital Communications Act “(HDCA”). This is a law intended to prevent harassment and bullying via digital communications. It applies to internet posts, text or voicemail messages, and potentially even phone calls. It lists 10 communication principles, stating that a digital communication should not:
- Disclose sensitive personal facts about an individual;
- Be threatening, intimidating, or menacing;
- Be grossly offensive to a reasonable person in the position of the affected individual;
- Be indecent or obscene;
- Be used to harass an individual;
- Make a false allegation;
- Contain a matter that is published in breach of confidence;
- Incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual;
- Incite or encourage an individual to commit suicide; or
- Denigrate an individual by reason of colour, race, ethnic or national origins, religion, gender, sexual orientation or disability.
A malicious statement posted online about you or your business could breach principles 5 or 6.
The HDCA has established the government organisation NetSafe. Their website explains their role:
“Netsafe has the responsibility to help resolve reports related to alleged breaches of the 10 communication principles. We are not an enforcement agency, but we do have a high resolution rate. Some of the things we can do include:
- liaise with website hosts, ISPs and other content hosts (both here and overseas) and request them to takedown or moderate posts that are clearly offensive
- use advise, negotiation, mediation and persuasion (as appropriate) to resolve complaints
- inform people about their options if they wish to apply to the District Court”
If NetSafe aren’t successful, the HDCA allows you to take a claim to court. Other than in principle 6 the HDCA does not draw an absolute distinction between true statements and lies, although this is a factor considered by the Court. That gets around one of the limitations of defamation law where something is not defamatory if it is technically true.
In severe cases it’s possible for the Court to award fines and/ or a prison sentence, and it has done this in a couple of cases of revenge porn.
In the case of bad reviews the Court has a range of options, including to order that a website:
- Take down content;
- Post a correction;
- Allow a right of reply; or
- Supply the identity of the person who has posted anonymously.
The Court can also order name suppression to prevent the victim from being re-victimised by reporting of the hearing.
But is it worth fighting?
When an individual is being actively harassed or bullied it may be necessary take to take steps to defend their reputation and their health & well-being.
In the case of a business the situation may be less clear cut. Negative reviews by disgruntled, delusional or malicious people are a fact of life in business. Is it worth your time and energy to fight that?
Consider the “Streisand effect”, where fighting against something may backfire by calling more attention to the original allegations. Sometimes the available remedies risk causing more problems than they solve.
We can help you assess whether you have a valid case to complain about defamation or whether you could go to Court under the HDCA. We can also help you assess the costs and risks of these steps, so you can decide whether a fight might be more trouble than it’s worth. Get the right advice today and set up an appointment with Nathan Tetzlaff.