Anonymous fake review of competitor held to be defamatory

30 May 2022
Warning: This article contains reference to sexual assault which may be upsetting for some readers. Reader discretion is advised.

In Issue

  • Whether the fake review on RateMD written by the respondents constituted ‘defamation’, and the assessment of damages for the plaintiff’s hurt feelings and damage to reputation.

The background

In February 2017 the plaintiff, a cosmetic surgeon, was convicted of indecent assault of a patient.

In June 2018 the conviction was quashed on appeal, and the prosecution abandoned the charge thereafter.

In early 2019 the plaintiff saw an anonymous review on RateMD, which he assumed to be from the former patient who made the allegations of indecent assault. The review stated, “After what he did to me, I can’t believe he’s still practising.” The review also provided a link to an old news article detailing the conviction.

The plaintiff retained lawyers to have the post removed. Following proceedings against Telstra (the internet service provider), it was discovered that the review had been posted by the first respondent and his wife. The first respondent is a rival cosmetic surgeon.

The plaintiff commenced proceedings against the first respondent and his wife for defamation.

The decision at trial

The respondents did not dispute that the false review carried defamatory meanings. However the respondents did not accept that the plaintiff was hurt by the review, and submitted that the one false review could not have been as much concern to the plaintiff as his conviction, appeal and the associated negative media attention. The respondents argued it was incredible that the one review would hold more weight than all the news articles of the conviction.

The court did not accept this, saying that the hurt feelings of the defamed person must be based on evidence not on “unfounded psychological assumptions”. The court found that the false review inflicted further trauma on the plaintiff, who believed it was the former patient who was continuing to assert the allegations.

In assessing damages, the court accepted that the defamatory imputations made “are among the gravest that can be alleged against a medical practitioner” and that any sum awarded must signal to the public the vindication of an applicant’s reputation. The court also considered various aggravating circumstances including the fact that the respondents continued to deny responsibility, never apologised, and were motivated by a desire to damage a commercial competitor, because these factors were found to have exacerbated the harm suffered by the plaintiff. In the circumstances the court ultimately awarded the plaintiff $420,000 for non-economic loss and $31,511.29 for special damages.

Implications for you

This case provides a timely reminder that it is possible to trace anonymous reviews to the original poster, and of the possible consequences for posting of incorrect information whether that be anonymously or not.

Colagrande v Kim [2022] FCA 409

Ask us how we can help

Receive our latest news, insights and events
Barry Nilsson acknowledges the traditional owners of the land on which we conduct our business, and pays respect to their Elders past, present and emerging.
Liability limited by a scheme approved under Professional Standards Legislation