What can dieticians, physiotherapists and other health professionals do about bad online reviews? How to deal with an unfair online review.

As part of a series of articles to help business-owners navigate defamation and defamatory remarks made against them, Litigation Lawyer and Partner Catherine Ballantyne has prepared the below - What can dieticians, physiotherapists and other health professionals do about bad online reviews? How to deal with an unfair online review.

Business owners in the health and wellness industry are often motivated by the act of guiding people to lead healthy, active lives with a better quality of living. It can be upsetting then when someone, for whatever reason, leaves a negative online review of the business or the service they received.

So, when is a review considered more than just negative and leaning into defamatory territory? Where is the line between someone sharing their honest opinion in the review site and a review becoming defamatory?

Who can make a claim for defamation?

The only parties who can commence a defamation action are as follows:

• A natural person. Proceedings cannot be brought by or continued on behalf of a deceased estate.
• A not-for-profit corporation; or
• A small corporation with less than 10 employees.

If a health and wellness clinic has more than ten employees, it may be able to pursue another legal remedy called “injurious falsehood” if they can prove a loss. You can read more about that here.

A health and wellness clinic does not need to be specifically named in a review for the statement to be defamatory.

They don’t need to be specifically named in a comment, rather they need to be able to be reasonably identified by the description in the material eg the Prime Minister, the owner of a local business etc.

It may also be defamatory if referring to a class of people. For example, referring to “…all of the staff at the EFG physiotherapists” or “…the management of HIJ dietician” where the group is so small that a person could say that they were readily identifiable.

What if I don’t know who has written the review?

The Courts have recently ordered Google and other similar companies to provide information about the identity of reviewers and it is possible to apply for this information. You can read more about unmasking the identity of a reviewer using a pseudonym here.

Are there defences to defamation?

There are a number of defences available for defamation claims. Two of the most common defences are truth and honest opinion.

Truth Defence

If the claims made in the online review are true, you cannot claim that you have been defamed. This is a complete defence to any allegations of defamation.

Honest Opinion

Everyone is entitled to have and publish an honest opinion, and this cannot be considered defamation. If the person writing the online review honestly held the opinion that they expressed in the review and it is based on truth, this is a defence against defamation.

The defence of honest opinion is available when:

• The review is an opinion (rather than statement of fact);
• The opinion relates to a matter of public interest; and
• The opinion is based on proper material – meaning it must be substantially true.

However, even if this defence is established, it can still be overcome and the online review considered defamatory if:

• the opinion was not honestly held by the author of the review at the time of publication;
• the person or business had reasonable grounds to believe that the opinion was not honestly held by the author at the time of publication; or
• the review was left maliciously. If the review is designed to serve a purpose other than to express an honest opinion, such as to satisfy a grudge or negatively affect the person or business, there is evidence of malice. Language of the comment itself may be evidence of malice, although mere exaggeration does not render a comment unfair.

Want some more information about your own situation?

If you believe you have been defamed in an online review or on social media you should seek legal advice on the merits of your claim as soon as possible after the material is published.

For further information, please contact Catherine Ballantyne, Partner at catherine.ballantyne@madgwicks.com.au to discuss your own situation.