Online Defamation Law – Think thrice before posting that Google Review…

Online Defamation Law in Australia

When it comes to Online Defamation Law in Australia, you should always think thrice before posting that Google Review  “Words without thoughts never to heaven go…” (Hamlet Act 3, Scene 3)

Case Study

Recently, the Federal Court of Australia in the case: Musicki v de Tonnerre [2023] FCA 222 (16 March 2023) set an important benchmark for online defamation law in Australia. In this case, judgment was found in favour of the Applicant who alleged that the Respondent defamed her in an online Google review. This was a very strong outcome for the Applicant because the Respondent was also ordered to pay the Applicant’s costs of the proceedings.

Background

In this Online Defamation Law case, the Applicant was a specialist vascular and endovascular surgeon based in Melbourne, Victoria – Dr Korona Musicki. On the 22 nd of September 2020, a Google review was posted under the name of ‘Dave Cross’ which contained false and defamatory statements about Dr Musicki’s practice as a surgeon.

The Google Review was as follows:

“terrible experience, was super keen to get me onto the table but then impossible to get ahold [sic] of for follow up, vague about incurred expenses, ended up with a massive bill. had no issues with the surgery but overall negative experience and no followup [sic]”

Despite numerous attempts to have the Google review removed by Google, Dr Musicki was unsuccessful as Google refused to remove the post nor would they identify the reviewer’s true identity.

On the 25 th of August 2021 Dr Musicki commenced proceedings against Google for what is known as ‘preliminary discovery’. This process, if successfully ordered, would allow Dr Musicki to access documents that Google had in their possession in order for Dr Musicki to determine the real individual behind the Google review so that she could sue them for defamation. The information in the documents eventually produced by Google on the 2nd of February 2022, revealed that ‘Dave Cross’ was actually a pseudonym used by an account associated with the email address ‘edetonnerre@me.com’.

Dr Musicki recognised the email address and the phone number provided by Google as belonging to her former medical student, Mr Erik de Tonnerre who she supervised at Royal Melbourne Hospital in 2018. Mr de Tonnerre then naturally became the Respondent in the defamation proceedings. Dr Musicki made numerous efforts to serve Mr de Tonnerre and eventually obtained substituted service – which means that the Court accepted that Dr Musicki did everything in her power to attempt to give Mr de Tonnerre notice that he was being sued.

Judgment

On the 16 th of March 2023, Dr Musicki was awarded Default Judgment in this Online Defamation Law case.

That is, because Mr de Tonnerre never actually responded to the claim that Dr Musicki made against him and never defended it, the Court decided the case in favour of Dr Musicki by default.

As for the elements of online defamation, the Court was satisfied that:

1. Mr de Tonnerre was responsible for publishing the Google review
2. The Google review implied the following:

• Dr Musicki pushes her clients to have surgery for her own personal benefit;
• Dr Musicki is negligent as a surgeon in that she does not provide proper follow up
  post-surgery
• Dr Musicki rips off her clients in that she does not provide clear costings to them;
  and,
• Dr Musicki provided a negative customer experience for the patient ‘Dave Cross.’

3. The Google review had been downloaded and read by at least some people in Australia.
4. Dr Musicki suffered damage to her reputation.

in this Online Defamation Law case, the Court decided that Dr Musicki was entitled to damages for her hurt feelings, damage to her reputation and to vindicate her reputation.

The review was eventually removed on the 1 st of April 2022. An assessment of the exact amount of damages is to come…stay tuned!

The takeaway

In the meantime, please remember to think thrice before posting a potentially damaging Google review.

If you or your business have suffered due to a negative Google or social media review and you are interested in what avenues of recourse you have available to you, contact Streeterlaw today to speak with one of our highly qualified Dispute Resolution Solicitors (02) 8197 0105. Alternatively, leave us a message on our Facebook Page

Written by Jamal Bakalian

After studying a double degree in Law and International & Global Studies at Sydney University, Jamal completed her GDLP at the College of Law. She is currently undertaking her Masters of Law (majoring in Commercial Litigation). Jamal has been practicing Law for 5 years. With a passion for resolving disputes, Jamal is a valuable member of the Commercial Litigation team at Streeterlaw.

Call us on 02 8197 0105 to book an appointment with Jamal Bakalian!