We’re living in a time when it’s easy to get caught up in our emotions, and the moment, to consider ourselves ‘untouchable’ keyboard warriors and let our fingertips do the talking with smart remarks online.
But, if ever there was a good reason to learn to pause, take a breath and consider very carefully what you’re posting, it’s a recent New South Wales Supreme Court Ruling which orders a Sydney woman to pay over half a million dollars in damages plus legal costs to a Sydney doctor she left an untrue Google review for
Cynthia Imisides had already received a nose-job when well-known plastic surgeon, Kourosh Tavakoli, operated on her nose and cheeks in February 2017. She subsequently failed to attend all but one follow-up appointment before telling her ex-husband she’d been charged for an unperformed cheek reduction.
Mr Imsides then posted an untrue negative 1-star Google review online.
The Supreme Court of New South Wales heard that Dr Tavakoli, who bills himself as “the household name for elite plastic surgery in Australia” posts before and after pictures of his “mummy makeovers” to his 156,000 Instagram followers and that his surgery has a 4.8-star rating on Google, over more than 100 reviews.
But in the week after Ms Imisides’ review went live on Google, traffic to Dr Tavakoli’s website dropped almost 25 per cent. Her review stated she was “extremely unhappy” with her nose job and alleged the surgeon had no morals.
Ms Imisides left the review up for three weeks, refused to apologise, and threw out court documents served upon her.
A week before the trial was due to begin in November 2018, she posted a second, untrue Google review in contravention of court orders.
When told by Mr Tavakoli’s lawyers to take the review down, she told them to “piss off” and that “I don’t have any money to give you greedy people”.
On 24 June 2019, Justice Rothman ruled that the allegations made by Ms Imisides were “plainly untrue”, “extremely serious”, went to the heart of Dr Tavakoli’s exemplary reputation and caused “more than significant” hurt to his feelings.
His Honour then made the following orders:
“(1) The first defendant [Ms Imisides] shall pay the plaintiff $530,000 as damages for the defamation published and referred to in these reasons for judgment as the first Google review;
(2) The first defendant shall pay the plaintiff’s costs of and incidental to the proceedings on an indemnity basis;
(3) Neither defendant [being Ms Imisides and her ex-husband] shall create a website of or concerning the plaintiff;
(4) The first defendant shall not publish or allow to remain published her Google review, first published on or about 1 September 2017;
(5) Neither defendant shall publish, re-publish or allow to remain published any matter containing imputations in or to the effect of those contained in the Google review and prescribed in  of the Statement of Claim, filed in these proceedings on 15 September 2017, being:
(a) any allegation that the plaintiff charged the first defendant for a buccal fat procedure that he did not perform;
(b) any allegation that the plaintiff acted improperly in relation to a buccal fat procedure for the first defendant;
(c) any allegation that the plaintiff acted incompetently in relation to a buccal fat procedure for the first defendant;
(6) The first defendant shall pay to the plaintiff interest at 4% per annum on $530,000 from 1 September 2017 until the date of judgment and thereafter…
(7) The first defendant shall pay to the plaintiff interest on the costs…”
But this is not the first time a negative Google review has resulted in a defamation suit, and it’s unlikely to be the last.
Civil defamation in New South Wales
The Defamation Act 2005 (NSW) is essentially replicated in all Australian jurisdictions.
For defamation to be established, three distinct components need to be proved on the balance of probabilities.
Material must be published (which includes orally communicated) to at least one person other than the party who was allegedly defamed.
The publication can occur orally or in writing, whether in print, by way of digital communication or otherwise, but it must be comprehensible.
The material must identify the allegedly defamed person either directly or indirectly, or be capable of doing so.
3. Defamatory meaning
The material must be ‘defamatory’ to the ‘ordinary, reasonable’ person, which means it must be likely to:
- cause the person to be shunned, shamed or avoided by others;
- adversely affect the reputation of the person in the minds of right-thinking members of society; or
- damage to the person’s professional reputation by suggesting a lack of qualifications, skills, knowledge, capacity, judgment or efficiency in his or her trade, business or profession.
Defences to civil defamation
Part 4, Division 2 of the Defamation Act lists the statutory defences, which section 24 makes clear are additional to any others available under the law.
The statutory defences are:
2. Contextual truth
3. Absolute privilege
4. Public documents
5. Fair reporting of proceedings of public concern
6. Qualified privilege
7. Honest opinion
8. Innocent dissemination
Section 14B of the Limitation Act 1969 (NSW) provides that ‘an action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.’
However, section 56A(2) allows a court to extend that period to up to 3 years from the date of publication, ‘if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication’.
Parties that cannot be defamed
Under section 9 of the Defamation Act, companies with less than 10 employees or which are formed for something other than financial gain cannot sue for defamation.
Section 10 precludes anyone from asserting, continuing or enforcing a cause of action for defamation in respect of a deceased person, or from suing the estate of a deceased person.
Offers to make amends
Part 3, Division 1 of the Act sets out a range of rules for resolving civil defamation disputes without litigation.
The part provides mechanisms for offering to make amends without resorting to legal proceedings, and makes clear that any such offers, or admissions made therein, are not admissible in any ensuing litigation.
Criminal defamation in New South Wales
Section 529 of the Crimes Act 1900 (NSW) sets out the offence of ‘criminal defamation’.
Section 529(3) prescribes a maximum penalty of 3 years’ imprisonment for anyone who, without lawful excuse, publishes a matter defamatory of another living person:
(a) knowing the matter to be false, and
(b) with intent to cause serious harm to the victim or any other person or being reckless as to whether such harm is caused
Section 529(4) provides that a defendant has a lawful excuse lawful excuse if, and only if, he or she would, having regard only to the circumstances happening before or at the time of the publication, have had a defence for the publication if the victim had brought civil proceedings for defamation.
Section 529(5) makes clear that the prosecution bears the onus of negativing the existence of a lawful excuse if, and only if, evidence directed to establishing the excuse is first adduced by or on behalf of the defendant.
Section 529(7) requires the consent of the DPP before proceedings can be instituted under the section, and subsection (9) states that a prosecution under the section does not a bar civil defamation proceedings.