In today's digital world, we often rely on honest online reviews to help us decide where to go, what services to use, and which products to buy. Yet, the question arises: at what point does a critical or unfavourable online review cross the line into a potential case of defamation?
Recently, the Ontario Superior Court in Canada found an individual liable for defamation for a negative Google review that she posted. In the case of D’Alessio v. Chowdhury 2023 ONSC 6075, the defendant was a former client of the plaintiffs, who were a law firm and its lawyers. The law firm had represented the defendant, but after a breakdown in the solicitor-client relationship, the defendant published a Google review where she called the lawyers at the firm, amongst others, “incompetent”, a “paralegal posing as a lawyer”, “highly negligent”, “highly unprofessional and disorganized”, “not trustworthy”, and “shady, pathetic and awful”. The defendant also alleged that the firm deliberately caused delays by refusing to transfer her files.
Although the law firm responded to the post and gave notice to the defendant to take down the review, the defendant refused to do so. Subsequently, the plaintiffs commenced an action against the defendant for defamation, and the defendant eventually removed the review. The review was published for almost three (3) months. The defendant did not put forward any particular defence, and the plaintiffs filed a motion for summary judgment.
As it was clear to the Court that the defendant’s words referred to the plaintiffs and were published by the defendant on the internet, the main issue was whether the words were defamatory. In this connection, the Court considered whether the words lowered the reputation of the plaintiffs in the eyes of a reasonable person. The Court found that they did, as in the eyes of a reasonable person, the words used would conclude that the plaintiffs were lawyers that one should not use. As such, the Court found that the impugned words lowered the professional reputation of the plaintiffs and given that the review was published for almost three (3) months, it directly assaulted the plaintiffs’ legal and business acumen and reputation. Thus, the Court awarded the plaintiffs $20,000.00 in damages.
Pertinently, the Court remarked as follows about the publication of online comments: -
“…A clear message must be made that such form of comments on an internet platform do not insulate someone from legal repercussions, such as an award of damages. Online comments are easy to do and seem distant and not accountable. But they are not…” (emphasis added)
On the other hand, in India, the Madras High Court recently rejected a complaint for criminal defamation under Section 500 of the Indian Penal Code arising from a Google review. In the case of V.P.Sarathi v. S.Kiruthigha & Anor Crl.Rc.No.445 of 2023, the 1st respondent posted a Google review about the petitioner, a lawyer who the 1st respondent had contacted for legal services. In the review, the 1st respondent stated that the petitioner was “very disrespectful” and the “worst lawyer” and told others to “Save your dignity by not consulting him.” The petitioner filed a complaint against the respondents for committing the offence of defamation.
The Madras High Court upheld the Magistrate Court’s dismissal of the complaint for the offence of defamation. In particular, the Court noted the constitutional right to free speech, as follows: -
“…Internet is a free platform and it is an important means of expression and communication. Defamation is defined as the communication of a false statement that harms the reputation of an individual or entity. Therefore, posting or canvassing false statements/remarks derogatory in nature, causing harm to the reputation of any individual or entity in the social media, would certainly amount to defamation. But mere expressing views in Google Review about the services that were received by the 1st respondent, in my opinion, does not amount to defamation. There may be honest feedback/reviews or false reviews… The Court below has rightly observed that the right to free speech expressed under Article 19(1)(a) of the Constitution of India covers such expression of one's review for the services received in an Online platform such as Google Review and sharing of review in the Google Review by the 1st respondent does not amount to defaming the petitioner….” (emphasis added)
It is worth noting, however, that this was a case of a complaint brought for criminal defamation, and thus, it could be possible that a different outcome may be obtained in a civil claim for defamation.
In the United Kingdom, the case of Burki v. Seventy Thirty Ltd; Seventy Thirty Ltd v. Burki [2018] EWHC 2151 (QB) also involved a claim for defamation for reviews published on Google and Yelp. An individual, Burki, brought a claim for misrepresentation and deceit against a dating agency, Seventy Thirty (“70/30”), and 70/30 claimed for defamation and malicious falsehood against Burki for reviews posted on Google and Yelp.
Burki’s Google review of 70/30 stated that it was, amongst others, “a scam, no database, clients use to finance the lifestyle of founder, without consideration for results or even ambition to achieve such…” The Court found the words to be defamatory as the words would have substantially and adversely affected the attitude of other people towards 70/30 or had a tendency to do so, and would have caused serious financial harm. Burki also failed to establish the defences of truth and honest opinion, as she failed to prove that 70/30 lacked the means or intention to operate an effective matchmaking service, or that it was engaged in a fraudulent scheme. Whilst the word 'scam' was an expression of honest opinion, it was based on facts which were untrue. Therefore, the defences of truth and honest opinion failed.
In Burki’s review on Yelp, she stated, amongst others, that “one is lured to enlist their services and pay a hefty sum of £18,000 based on a portfolio of eligible bachelors who once you have paid, are no longer available… from a service which… is fraudulent, and solely focussed on getting their fee but far from giving anything back or delivering on their image skilfully created in the media.” The Court similarly found these words to be defamatory. However, as there was proof of false representations which lured clients to pay substantial fees, the sting of the factual allegations was substantially true. The allegations that 70/30 appeared to be solely focused on obtaining its fees and to be operating in a fraudulent way were an expression of opinion, and the basis of that opinion was one which an honest person could have held based on the false representations made. Therefore, Burki established the defences of truth and honest opinion in respect of the Yelp review.
In Malaysia, there has yet to be a reported case where a party was found liable for defamation arising from an online review. Nevertheless, the general principles and elements of defamation would need to be satisfied for an online review to amount to defamation, namely: -
1. The words complained of are defamatory, i.e. the words have the effect of lowering the reputation or estimation of the plaintiff in the eyes of ordinary and reasonable members of society;
2. The words refer to the plaintiff;
3. The words are published to a third party; and
4. Recognised defences, including truth, fair comment, qualified privilege and absolute privilege, do not apply.
In view of the above, any case would likely turn on whether the words complained of are defamatory and whether any defence applies. This would depend on the facts and circumstances of each case. As such, it is important to be careful in publishing any online review to ensure that it does not cross the lines of defamation, particularly by ensuring, amongst others, that any facts stated are true and that any opinion given is based on true facts and is not malicious.
*Written by Priscilla Faith Lim, Associate
For any related enquiries, please contact our Partner, David Mathew (davidmathew@stsp.my) or Associate, Priscilla Faith Lim (priscillalim@stsp.my)
The content of this article is of a general nature and does not constitute legal or other advice or the provision of legal or other professional services, and shall not be relied upon as such.
Click here to download this article.
