Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn advise on a business’s right to sue for defamation.
QUESTION: I recently ordered some takeaway from my local – and the food was so gross it was inedible. It was all greasy, limp and, worst of all, the chicken looked like it might even be off, so I was too scared to eat it. I contacted the restaurant to ask for a refund and they refused, so I gave them a one-star review online. Now, they are threatening to sue me for defamation. Should I be scared, or are they just trying to bully me? – Alice, SA
ANSWER: Alice, it sounds like you posted an honest review of your experience, and assuming that it was written in a respectful way, you probably have little to worry about.
That said we will give you a short summary of the law relating to defamation so you are equipped to deal with this situation.
Defamation
Defamation means causing harm to a person’s or business’s reputation by publishing material about them that changes the way people feel about them.
‘Publishing’ is a broad term and includes speaking, writing, blogging, social media posts and, in your case, a Google review.
If the review you posted hurt the restaurant’s reputation, makes their customers or potential customers think less of them or not want to purchase food there, and the information is false, then you could be defaming them and at risk of being sued.
If, however, your review is substantially true, then you will have a defence against any claim the restaurant makes against you for defamation.
You may also be able to argue it was not defamatory if the review:
• was presented as your opinion rather than a statement of fact
• was a matter of public interest (to avoid others from potentially suffering food poisoning)
• was not made with “malice” or ill intent – it was merely based on your honest opinion
• was based on evidence, in this regard, any photos or videos you took of the food will be useful as well as a receipt or record of your order
• was so trivial that there was unlikely any reputational damage to the restaurant
Damages
Generally, the reasons that a person or business may sue for defamation is to set the record straight, secure an apology, and win damages (money) for the harm suffered.
To be awarded any damages in South Australia, the restaurant would need to show that your review alone caused “serious harm” to their reputation.
In this case, serious harm would need to be, for example, a substantial decline in their business income.
If there are other scathing one-star reviews we expect this would be difficult to show.
It may be that the restaurant merely wants you to remove the review. You may consider doing this if you want their threats to stop or as a precaution if you are concerned about the contents of your review.
Menace
We have assumed that your review (even if the contents were true) was written in a non-threatening and intimidating way.
Be aware that persistent messages, emails, social media posts or reviews that are menacing, harassing or threatening could result in criminal charges.
As consumers we have the power to impact businesses where it hurts – their bottom line – by choosing where we spend our hard-earned money.
This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor. If you have a legal question you would like Alison and Jillian to answer, please email stories@news.com.au. Get more from Alison and Jillian on their Facebook page.