Defamation News: The first time a Qualified Privilege Defence holds up in Australia!

The recent defamation case of Srecko and David Lorbek v Peter King [2022] VSC 218 (5 May 2022) appears to be the first time a qualified privilege defence has been successfully invoked in Australia with respect to Google reviews.

The Lorbeks (the plaintiffs) claim for defamation was based on four of the 13 posts made by the defendant; three Google reviews posted on the 4 April 2017, 19 October 2017 and 20 October 2017 and one Law Answers post, dated 17 April 2016. The publications made by Peter King (the defendant) were in relation to the purchase of an unroadworthy car from the plaintiff’s business Lorbek Luxury Cars (LLC).

Each of the four publications identified the plaintiffs and conveyed an imputation that the first plaintiff deserved no respect as a business owner.

The first Google review published conveyed the imputations that the first plaintiff:

  1. is and was a dishonest car dealer; and
  2. is untrustworthy as a car dealer;

Each of the four publications conveyed the imputations that the second plaintiff:

  1. is and was a liar;
  2. is and was a dishonest car salesman; and
  3. is an untrustworthy car salesman.

The defendant relied on the statutory defence of qualified privilege pursuant to section 30 of the Defamation Act 2005 (the Act), which required him to prove that the recipient had an interest or apparent interest in having information on the subject, published in the course of giving the recipient information on that subject, and the conduct of the publishing that matter was reasonable in the circumstances.

 

In determining whether the recipients of the publications had an interest in having information in respect of LLC in the public, McDonald J referred to the case of Defteros v Google where the Court of Appeal stated that:

“[T]he courts have placed a wider construction on the words ‘an interest’, in s.30 of the Act, than was previously accorded to the concept of ‘interest’ for the purposes of the common law qualified privilege.”

 

Adopting this wider interpretation, the publications of a dissatisfied customer experience were found to be a direct interest to customers and potential customers of LLC and individuals who read the Google Reviews, not merely out of idle curiosity.

 

In determining whether the conduct of the defendant in publishing the information is reasonable, a Court may take into account the non-exhaustive list of factors set out in s.30(3) of the Act. McDonald J emphasised that this list should not be treated as a checklist and no single factor is determinative. It is also not necessary to prove that the matter published concerned an issue of public interest, to establish the defence of qualified privilege.

 

The considerations set out in s.30(3) of the Act include:

 

  • The extent to which the matter published is of public interest;
  • The extent to which the matters published relates to the performance of public functions or activities of the plaintiffs;
  • The seriousness of any defamatory imputation carried by the matter published;
  • The extent to which the matter published distinguishes between suspicions, allegations and proven facts;
  • Whether it was in the public interest in the circumstances for the matter to be published expeditiously;
  • The nature of the business environment in which the defendant operates;
  • The sources of the information in the matter published and the integrity of those sources;
  • Whether the matter published contained the substance of the person’s side of the story, and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person.

 

The Court found that the defendant exercised reasonable care by making proper enquiries prior to publishing the Google reviews and the Law Answers post. It was reasonable for the defendant to rely on the information provided to him about the vehicle being unroadworthy and to conclude that the plaintiffs lied to him about several aspects of the vehicle’s condition, through information obtained by his enquiries.

 

Further, it was found that the defendant’s motivations for publishing the Google Reviews did were not actuated by malice. The defendant’s motivation was to draw attention to his experience with LLC and to warn other potential customers against dealing with LLC. As the reviews were published in the defendant’s own name and given the passage of time between being told that the car was unroadworthy to the publication of the Google Reviews, McDonald J was not satisfied that there was malice on the part of the defendant towards the plaintiffs.

 

Implications

 

Whilst the defendant in this case made out a qualified privilege defence for some serious defamatory imputations published, it remains important to carefully investigate the subject of Google Reviews and other publications one makes online. Before posting, it is imperative to think about the seriousness of any defamatory imputations that may attach to one’s comments and be sure to clearly distinguish between suspicions and proven fact. Consider your purpose and motivation for posting reviews: Is it for genuine public interest, or are you being driven by anger and malice?

 

Elit Lawyers by McGirr & Snell has over 60 years’ specialised defamation experience acting on behalf of individual and companies including high profile executives, parliamentarians, sporting and public figures. If you need legal assistance with any aspect of your social media presence or have any other defamation concerns, please contact Danielle Snell and/or Robert McGirr.

 

 

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