Introduction
In Lyell Steven Allen t/as AVL Electrical Services v Godley [2023] WADC 54, the District Court of Western Australia considered the assessment of damages in a defamation claim brought by an electrician against six defendants, including Nathan James Simpson, for one-star business reviews posted on Google and Facebook. The court found the reviews conveyed imputations that the plaintiff provided poor quality services and awarded $35,000 general and aggravated damages against Simpson.
Facts
The plaintiff operated an electrical services business and marketed it on Google and Facebook. Prior to December 2018, he had a five-star rating on both platforms (at [40]-[46]). In November 2018, a dispute arose between the plaintiff and his neighbour, the first defendant, regarding a Christmas lights display. On 14 December 2018, the first defendant changed his positive Google review of the plaintiff’s business to a one-star review without explanation (at [50]-[56]). That day, the second defendant, who was the first defendant’s sister, also posted an unexplained one-star Google review of the plaintiff’s business (at [57]). Over the following days, the third, fifth and sixth defendants, who were connected to the first defendant, posted similar one-star Google reviews (at [58]-[59]).
On 19 December 2018, the fourth defendant, Simpson, posted a one-star Google review and a one-star Facebook review stating the plaintiff was a “grinch” he would not recommend (at [59]). The plaintiff had never provided services to Simpson or the other defendants except the first defendant (at [59]). Following the reviews, the plaintiff’s Google rating dropped to 4.4 out of 5 stars (at [62]). The plaintiff claimed the reviews conveyed imputations including that he provided poor quality services that should be avoided (at [69]).
Law
To establish defamation, the plaintiff must prove the defendant published defamatory matter to a third party which identified the plaintiff and lowered his reputation (Armstrong v McIntosh [2020] WASC 31 at [224]). Once established, damage to reputation is presumed (Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 247, 250). Damages serve to compensate hurt feelings, repair harm to reputation and vindicate the plaintiff (Armstrong at [225]). Aggravated damages may be awarded where the defendant’s conduct increased injury to the plaintiff (Armstrong at [236]).
Analysis
Justice Gillan found Simpson’s non-appearance meant he admitted publishing the reviews and they carried the imputations pleaded (at [25]). Her Honour was prepared to infer from the circumstantial evidence that third parties searched for electricians online, saw the reviews and the plaintiff’s Google hits increased after they were posted (at [79]-[80]). This established publication to third parties. The imputations concerning poor quality services seriously damaged the plaintiff’s professional reputation and lowered his standing, making them defamatory (Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [36]; Armstrong at [224]).
Justice Gillan accepted the reviews caused the plaintiff serious hurt and distress (at [88]). She awarded $35,000 general and aggravated damages, taking into account the plaintiff had settled with other defendants but Simpson’s refusal to apologise or remove the “grinch” review justified additional damages (at [96]). Her Honour also granted an injunction requiring Simpson to remove the reviews (at [97]). The defendant’s failure to make a settlement offer or respond to proceedings meant indemnity costs were appropriate (at [101]).
Conclusion
The decision illustrates that publishing false negative online business reviews can have serious ramifications in defamation. Where reviews damage a plaintiff’s professional reputation and cause distress, substantial damages may follow. Refusing reasonable settlement offers or a retraction may lead to aggravated damages and indemnity costs. Plaintiffs should act promptly to request removal of unjust reviews.