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We’re all aware of review sites, be it in the shape of Trip Advisor or Yelp, but how do you feel about a new start up that will be seeking personal reviews from others about you?

This soon to be launched platform is called Karma and at first blush, one can’t ignore the potential legal actions that may arise from people lambasting each other.

In this podcast, Lauren Hicks, an experienced defamation lawyer at Attwood Marshall Lawyers discusses defamation, the rise of such actions since the advent of “online,” and the defences that are available to someone who has allegedly defamed another.

Please do not hesitate to contact our Dispute Resolution and Commercial Litigation Department Manager Amanda Heather on 07 5506 8245 or email aheather@attwoodmarshall.com.au  should you require any further assistance on this issue.

Transcript

Interviewer: We are all aware of review sites being in the shape of true advisor or yelp, but how do you feel about a new startup that will be seeking a review on you personally. That’s right, the platform is called Karma, and at first blush, one can’t ignore the potential legal actions particularly around defamation that may arise from people lambasting each other. I’m joined by Lauren Hicks from Atwood Marshall. Lauren, what is defamation?

Lauren: Defamation is basically a law designed to protect one’s reputation and to make sure that they’re not injured from a comment or something that’s said on a forum, on any forum really.

Interviewer: Given that we’re in this advent of online, are defamation actions becoming more prolific because of the world we live in?

Lauren: Absolutely, Defamation is evolving rapidly. The online forums and blogs are just creating avenues for people to make comments that may defame and injure other people’s reputations.

Interviewer: Has the law had to adapt because of the online world?

Lauren: Yes and no. The legislation has been in effect from 2005 where it actually became a uniform act, where all of the states basically dropped their individual legislation and uniformed it into one, but in terms of the online, no it hasn’t. It probably needs a little bit of a revamp.

At the moment, it’s very difficult to locate serial bloggers, who use aliases to post their comments, where you basically need to go through another step and action where you serve interrogatories on the website host or administrator to locate the identify of someone. So, if someone uses the name, say, James Smith or something like that, that person may not actually be called James Smith, they may be someone completely different, but you need to locate the individual to find out who that person was in order to serve them with the proper proceedings.

Interviewer: So the anonymity I suppose is the big issue then in the potential of defamation cases, is that what you’re saying?

Lauren: Yeah, absolutely.

Interviewer: Defamation cases historically have always had that reputation of being complex and litigation intensive. I recall I think a few years ago, Australia’s most lengthy trial was in fact a defamation trial. Has this changed?

Lauren: No, not at all. They’re just as complex now, and very costly. They involve lots of steps, like I said, in some cases you need to serve extra steps in order to locate the individual. You also need to be concerned about if you’re acting for a corporation whether they’re not an excluded corporation, so there are other avenues and other steps that you need to take in order to ascertain whether you can actually bring an action in defamation, and who you serve, whose the party responsible, but I guess in the complex point of view, if it’s on a website, if it’s say a blog posted on a website, it’s not only the person who posted on the blog, but it’s also the website administrator or host who may be liable for keeping the post up there, or for not regulating it.

Interviewer: Yeah, is it the case that if someone perhaps defames somebody else online, that the extent of damages or damage that person has suffered to their reputation is quite minimal because they don’t have a big online community, is it worth a person like that pursuing this, given that the likelihood may be favorable towards them but they might spend a lot of money trying to pursue it?

Lauren: Yeah, everyone has their own individual circumstances and whilst some may feel that they’ve suffered, some may just go after them just for the pure justice of it, others may do it for financial reasons, and others may not.

Sometimes issuing a concern notice for the defamation act, which is the first step you need to take, is enough in order to prevent that person from taking any steps with this, or at least getting the offer for amends, which might be an apology letter, some people just want the apology rather than the litigation and the damages that flow from it after. Defamation, you don’t actually need to prove damage anymore, it’s been abolished, so you can just bring the action if someone defames your reputation or injures it in any way.

Interviewer: Conversely, the person who perhaps has a defamatory act against them, what defenses do they usually rely on?

Lauren: There are quite a few, but I guess the most popular ones are honest opinion and innocent defamation, so someone who doesn’t really understand the effect of the comments or the impact it can have on one person or a corporation or an excluded corporation.

Interviewer: So they almost do it innocently?

Lauren: Yeah, or honest opinion.

Interviewer: Right, what are the first steps that a person should take if they believe they have been defamed?

Lauren: The first step is to speak to a legal representative to ascertain whether the comment was actually defamatory or not, and then whether a concerns notice will be required or necessary in the circumstances. The other thing is to consider whether you need to serve interrogatories to find out the location or the name of the individual that’s done the act.

Interviewer: When we’re talking interrogatories, we’re talking about a series of complex questions aren’t we?

Lauren: That’s exactly right. It’s a request to say, a third party, to provide the name of the individual that may have posted a comment.

Interviewer: Right, so following that, what should they then do?

Lauren: Well, after the concerns notice, they’ve got 28 days for offers to make amends to be made by the person who defamed them, and if that offer is not taken up, they can obviously issue proceedings to go onto a jurisdiction that they would normally fit into. Most applications are made in a Supreme Court and then an expert report would come in, on behalf of the applicant, and offer an opinion on what may be the extent of damages, then you would basically transfer between the courts to the correct jurisdiction on that basis.

Interviewer: I’m assuming it’s like most areas of law that if you are needing legal help in relation to defamation, you’re best seeing a lawyer that has got expertise in the area.

Lauren: Absolutely, it’s one of those niche areas in the industry and unfortunately not many people like to practice in that area because it is such a complex and such a highly litigious and very it’s very, it’s vigorously defended. So it’s one of those areas that can take as long as 2 to 3 years, possibly 5 years in some circumstances to have the action running through a court.

Interviewer: Yeah, I know that you’ve got a bunch of defamation cases at the moment that we can’t talk about. In any case, thanks Lauren.

Lauren: No, thank you.

If you would like more information or want to obtain the best possible chance of a successful outcome in your dispute, please contact our Commercial Litigation Department Manager, Amanda Heather on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071.

We have an experienced dedicated Commercial Litigation team that practices exclusively in these areas.

Please click here to access our team brochure with details of our professional staff.

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Charles Lethbridge

Charles Lethbridge

  • Senior Associate
  • Commercial Litigation
  • Direct line: 07 5506 8240
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