Introduction
In the recent case of Colagrande v Kim, Dr Cesidio Colagrande (a cosmetic doctor practising on the Gold Coast) was awarded significant damages for defamation and an order restraining the respondents from publishing the defamatory matter or any matter or imputations to the same effect as the defamatory matter.
Background Facts
In February 2017, Dr Colagrande (the Applicant) was convicted of indecent assault of a patient, a charge to which he had pleaded not guilty. This decision was quashed on appeal and the prosecution entered a nolle prosequi (formal abandonment of the charge) on 7 June 2018.
In early 2019 the Applicant discovered that on 12 December 2018, an unidentified person had posted a very poor review on the RateMDs website along with the following comment:
”After what he did to me, I can’t believe he’s still practicing. Just read the article. https:/lwww.news.com.au/nationallqueensland/courts lawlgoldcoast-plastic-surgeon-ces-colagrande-found-guilty-of-sex-assault-of stripperlnewsstory/e6615788f087f0883c6620afe8165bfa”
The Applicant assumed that his former patient who had accused him of sexual assault had posted this review and information (the False Review).
After RateMDs refused to remove the False Review, the Applicant retained lawyers to ascertain the IP details of the unidentified individual responsible for the False Review. RateMDs released the IP address pursuant to a subpoena.
Proceedings were then commenced against Telstra (as the service provider) seeking the identity the account holder(s) of the relevant IP address. On 4 November 2020, Mr Min Sik Kim and Mrs Anna Min were identified as the relevant account holders. A Google search linked Mr Min Sik Kim to Dr Mitchell Kim (a cosmetic doctor who also practised on the Gold Coast).
After reading the False Review and being informed that the False Review had been posted by another doctor, the Applicant was diagnosed with post-traumatic stress disorder and experienced paranoia, increased anxiety and a sense of defenceless, vulnerability, despair and isolation from other doctors.
Proceedings against Mr/Dr and Mrs Min (the Respondents) were commenced on 21 June 2021. Despite filing a defence denying they published the False Review, neither Respondent gave evidence in the proceeding.
Why was the False Review posted
The unchallenged cyber security expert evidence established:
- the False Review was posted using a Samsung mobile device via a Telstra account for which the Respondents were the account holders; and
- the internet service associated with the account was connected to the home address of the Respondents.
The first Respondent admitted that he owned a Samsung Galaxy Note and that he alone knew the password for this device.
The Applicant alleged that the first Respondent’s motive, as a competitor of the Applicant was to damage his reputation. Jagot J held that the first Respondent perceived the Applicant to be a competitor because they were both general practitioners describing themselves as cosmetic surgeons who practiced on the Gold Coast. The first Respondent’s election to not give evidence reinforced Jagot J’s conclusions that the first Respondent’s motive when posting the False Review was to damage the Applicant’s reputation and that first Respondent had acted with malice knowing the conviction against the Applicant had been quashed.
The second Respondent admitted to having full authority to use the internet account used to upload the post. Jagot J held that the second Respondent’s failure to give evidence inferred that she facilitated and participated in the publication of the False Review, and that this was sufficient to establish the second Respondent as a joint tortfeasor.
Who read the False Review?
RateMDs self-describes as having over 100,000 visits per day. Analytical data revealed that between December 2020 and June 2021, the Applicant’s profile had 70,000 to 180,000 page reviews per month. The False Review remained on the RateMDs websites until September 2021.
Multiple witnesses provided affidavits and were called to give evidence. Jagot J accepted the evidence of these witnesses to be clear, cogent and credible and that:
- it was reasonable for people contemplating surgery, to undertake their own research and be interested in what other patients had said about a doctor; and
- a review with a one-star rating amongst the other 96 reviews would attract attention.
Defamatory imputations
There was no contest that the False Review carried defamatory imputations, specifically that the Applicant:
- sexually assaulted his patient; and
- should not be practising medicine following the sexual assault of his patient.
Do existing hurt feelings and a poor reputation support a claim for a reduction of awarded damages?
Jagot J did not accept the Respondents’ submissions that:
- an allowance had to be made for the fact the Applicant was already hurt and traumatised by the criminal proceedings against him, and the media reporting of the same, much of which still remains online;
- the court should not make any significant allowance for hurt feelings when assessing damages because the publication of the False Review would not be of similar concern to the Applicant nor cause just as much trauma, as the experience of being charged with a serious crime and the associated media attention; and
- they did not know that the Applicant’s conviction was set aside.
Jagot J confirmed that hurt and offence to the person defamed are to be assessed on the evidence, not on generalised assumptions and accepted the Applicant’s evidence that:
- he was recovering from the trauma relating to his criminal conviction; and
- reading the False Review inflicted a profound new trauma.
Whilst acknowledging the Applicant’s reputation had been damaged by his previous charge and conviction, Jagot J opined it could not be inferred that the Applicant had an existing bad reputation or a reputation less amenable to damage and unworthy of vindication because:
- a person whose conviction has been set aside and a nolle prosequi entered is to be treated as innocent;
- many people adhere to the notion of innocent until proven guilty; and
- the acceptance that some people will still think less of the Applicant (on the basis of his charge and set aside conviction), did not support an assumption that there was a generally held view within the community that the Applicant’s reputation was damaged.
Orders
Jagot J was satisfied that a substantial award of damages above the prescribed maximum damages for non-economic loss (i.e. $250,000) and the award of aggravated damages was justified pursuant to section 35(2) of the Defamation Act 2005 (NSW) (which promotes uniform laws of defamation in Australia). This was on account of the Applicant’s hurt feelings, damage to his reputation, the need for vindication of his reputation, and the following circumstances of aggravation:
- the anonymity of the False Review, which was intended to infer the victim of the alleged sexual assault was the writer and as such reflected the improper and unjustifiable conduct of the Respondents;
- the Applicant’s susceptibility to serious hurt and trauma from the False Review;
- the compounding of the Applicant’s hurt and trauma following his discovery that the False Review had been posted by another doctor who wished to do him professional harm;
- the malicious intent of the Respondents to damage the character, personal and professional reputation and livelihood of commercial competitor;
- the failure of the Respondents to remove the False Review until September 2021, despite having been requested to do so in January 2021; and
- the Respondents’ continual denial of responsibility and lack of apology for the publication of the False Review.
The Federal Court ordered that the Respondents pay:
- the Applicant’s damages for non-economic loss, including aggravated damages in the amount of $420,000.00;
- special damages $31,511.29 for Applicant’s costs associated with discovering the identity of the Respondents as publishers of the False Review;
- the Applicant’s legal costs as agreed; and
- pre-judgement interest on the award of damages from the start of the limitation period until the date of the orders.
Given the conduct of the Respondents, the Court ordered that they be permanently restrained from publishing or re-publishing:
- the False Review or any matter to the same or a similar effect:
- imputations that the Applicant sexually assaulted his patient; and/or
- the Applicant should not be practising medicine because he sexually assaulted his patient.
Key takeaways
The increasing use of internet and platforms such as RateMD by patients who are contemplating treatment to research potential treatment providers has been acknowledged by the Court. The motivation and conduct of the Respondents in Colagrande v Kim is particularly concerning. This case provides some reassurance for any defamed practitioners and suggests that it is prudent for doctors to monitor feedback about them that may be published online, especially feedback that has been posted anonymously.
This article was written by Katharine Philp, Partner and Heather Nieuwenhoven, Associate.
