For a small business, your reputation can be one of your most valuable assets. False or damaging statements published online, in reviews or through social media can affect how customers, suppliers and other businesses view you.
If you run a business in South Morang or elsewhere in Victoria, it is important to understand how defamation law applies to your circumstances. This includes understanding what may constitute defamatory matter, how to protect your reputation and what steps you can take if you believe your business has been defamed.
What Is Defamation?
Defamation is a civil wrong involving the publication of defamatory matter about a person or, in certain circumstances, a corporation. In Victoria, defamation claims are governed by the Defamation Act 2005 (Vic) and the general law.
The law is more complex than simply asking whether a statement is negative or untrue. A defamation claim can involve questions about what the publication conveys, whether it identifies the person or corporation concerned, whether it was published to someone else and whether the publication has caused, or is likely to cause, serious harm to reputation.
For a business, potentially defamatory material may appear in many forms, including:
- Online reviews
- Social media posts
- Comments on websites or forums
- Statements made to customers or suppliers
- Published articles or other written material
It is also important to understand that the distinction between libel and slander has been abolished under Victorian defamation law. The focus is on the publication of defamatory matter rather than whether the statement was written or spoken.
When Could a Statement About a Business Be Defamatory?
Whether a particular statement is defamatory depends on the circumstances. A negative comment is not automatically defamatory, and genuine customer dissatisfaction does not necessarily amount to defamation.
Generally, the circumstances may include considerations such as:
- Publication: The statement must have been communicated to at least one person other than the person about whom it was made.
- Identification: The person or business must be identified, either directly or in a way that allows them to be identified.
- Defamatory meaning: The publication must convey a defamatory meaning about the person or business.
- Serious harm: A defamation cause of action requires the publication to have caused, or be likely to cause, serious harm to reputation.
For example, a false allegation on social media that a business engages in fraudulent conduct could potentially raise defamation issues. Similarly, a false statement published on a review platform could potentially damage a business’s reputation.
However, each situation needs to be assessed on its own facts. A complaint about poor service or a person’s genuine opinion is not necessarily defamatory.
Can a Small Business Sue for Defamation in Victoria?
Not every corporation can bring a defamation claim. Under the Defamation Act 2005 (Vic), a corporation generally has no cause of action for defamation unless it falls within the statutory definition of an excluded corporation.
This can include a corporation that has fewer than 10 employees and is not an associated entity of another corporation, subject to the other requirements of the legislation. Certain not-for-profit corporations may also qualify.
There is also a separate serious harm requirement. Where the plaintiff is an excluded corporation, harm to its reputation is not serious harm unless it has caused, or is likely to cause, serious financial loss.
These requirements mean that a business should obtain legal advice before assuming that a particular negative review, social media post or other publication gives rise to a defamation claim.
How Can a Small Business Protect Its Reputation?
Monitor Your Online Presence
Regularly monitor your online presence so you can identify potentially defamatory content as soon as possible. You can monitor your business name and relevant terms through services such as Google Alerts.
You should also check relevant social media platforms, review websites and online forums where your business may be discussed.
Respond Promptly and Professionally
If negative content appears, consider responding promptly and professionally. Not every negative comment is defamatory. Some comments may simply reflect genuine customer dissatisfaction.
A calm and constructive response may help address legitimate concerns and reduce the potential reputational impact of the dispute.
Maintain Strong Business Relationships
Strong relationships with customers, suppliers and your local community can help build a positive reputation. A well-established reputation may also help provide context when others encounter negative statements about your business.
Educate Your Team
Employees can play an important role in managing reputation risks. Make sure your team understands how to respond appropriately to complaints, negative reviews and potentially defamatory material.
What Should You Do If Your Business Has Been Defamed?
If you believe defamatory material has been published about your business, acting promptly can help preserve evidence and allow you to understand your legal options.
1. Gather Evidence
Keep copies of the relevant publication and record where and when it appeared. Depending on the circumstances, useful evidence may include:
- Screenshots of social media posts or reviews
- Copies of emails or messages
- Website pages or online articles
- Details of when the material was published
- Information showing who could access the publication
- Evidence of any resulting reputational or financial impact
Where possible, preserve the material before it is edited or removed.
2. Seek Legal Advice
Defamation law can be complex, particularly where the publication is online or involves a business. A lawyer can assess the publication, the circumstances in which it was made and your available options.
At Irvine Lawyers, we help clients understand their legal rights under Victorian law and assess the appropriate steps for their circumstances.
3. Consider Requesting a Retraction or Correction
Depending on the circumstances, it may be possible to resolve a dispute without commencing court proceedings. This could involve contacting the publisher and seeking the removal, correction or retraction of the relevant material.
The appropriate response will depend on the nature of the publication and the circumstances in which it was made.
4. Consider a Concerns Notice
A concerns notice is an important part of the defamation process in Victoria. In general terms, a person seeking to commence defamation proceedings must first give the proposed defendant a concerns notice that identifies the defamatory imputations relied upon.
The Defamation Act 2005 also provides a process for offers to make amends. This can provide an opportunity for a defamation dispute to be resolved without proceeding to a trial.
Because the requirements for a concerns notice are prescribed by legislation, it is important to obtain legal advice before preparing or responding to one.
5. Consider Legal Proceedings
If the matter cannot be resolved, legal proceedings may be an option. Before taking this step, a lawyer can assess the available evidence, potential defences, the applicable legal requirements and the prospects of success.
What Defences Can Apply to Defamation?
There are a number of potential defences to defamation. The appropriate defence depends on the precise words used, the circumstances of publication and the evidence available.
Examples include:
- Truth: The defence of justification may apply where the defamatory imputations conveyed by the publication are substantially true.
- Honest opinion: A defence may be available where the requirements for honest opinion are satisfied.
- Privilege: Certain publications may be protected by absolute or qualified privilege, depending on the circumstances.
- Other statutory defences: The Defamation Act 2005 contains additional defences that may apply depending on the circumstances of the publication.
Whether a defence applies cannot be determined simply by looking at whether a statement is described as an opinion or whether the publisher believed it to be true. The precise circumstances and wording need to be considered.
Key Takeaways for Small Business Owners
- A negative review or comment is not automatically defamatory.
- Defamation law in Victoria applies to publications made through online platforms and other forms of communication.
- A defamation claim must satisfy the applicable legal requirements, including the serious harm threshold.
- Not every corporation is entitled to bring a defamation claim.
- Preserve evidence if potentially defamatory material is published about your business.
- A concerns notice is generally required before defamation proceedings can be commenced.
- There may be several available defences depending on the circumstances.
- Obtaining legal advice early can help you understand your options before the dispute escalates.
Frequently Asked Questions About Business Defamation in Victoria
Can a Google review be defamatory?
A Google review can potentially give rise to defamation issues, depending on what it says, whether it identifies the business or an individual, whether it conveys a defamatory meaning and whether the applicable legal requirements are satisfied. However, a negative review is not automatically defamatory.
Can a small business sue someone for a defamatory social media post?
Potentially, but the business must first be entitled to bring a defamation claim and satisfy the applicable requirements under Victorian law. The size and structure of the business can be relevant to whether a corporation has a cause of action.
What is a concerns notice in defamation?
A concerns notice is a formal notice identifying the defamatory imputations that the aggrieved person considers are conveyed by the publication. In general, a concerns notice must be given before defamation proceedings can be commenced, subject to the requirements of the Defamation Act 2005 (Vic).
Can I sue someone for a bad review?
Not every bad review is defamatory. A review may contain genuine criticism or opinion that does not give rise to a defamation claim. The exact wording, context and circumstances need to be assessed before determining whether legal action is appropriate.
What should I do if someone posts something defamatory about my business?
Preserve the evidence, avoid responding impulsively and obtain legal advice. Depending on the circumstances, you may be able to seek a correction or removal of the material or pursue the formal defamation process.
Speak With Irvine Lawyers About a Defamation Matter
Defamatory material can have a significant impact on a small business’s reputation. If you believe false or defamatory material has been published about your business, it is important to understand your legal options and act appropriately.
Contact Irvine Lawyers to arrange a consultation and discuss your circumstances with our team.