Case review: Musicki v de Tonnerre [2023] FCA 222
Synopsis
Dr Korana Musicki, specialist vascular and endovascular surgeon, obtained default judgment in her favour arising from a Google review which the Court found to be false and defamatory. The review was published by a former medical student, Dr Erik de Tonnerre, under a pseudonym.
Facts
On or around 22 September 2020, a review was posted on Google under the name ‘Dave Cross’ concerning Dr Musicki’s, practice as a surgeon. The post stated:
“terrible experience, was super keen to get me onto the table but then impossible to get a hold of for follow up, vague about incurred expenses, ended up with a massive bill. had no issues with the surgery but overall negative experience and no follow up”.
Dr Musicki corresponded repeatedly with Google to have the review removed or alternatively to be provided with the contact details of the purported patient to follow up with them. Google refused to remove the post or identify the reviewer.
Dr Musicki brought preliminary discovery proceedings against Google on 25 August 2021 resulting in Justice Mortimer ordering Google to provide discovery to the applicant.
The information provided by Google revealed that ‘Dave Cross’ was a pseudonym used by an account belonging to Dr Erik de Tonnerre, a former medical student under the supervision of Dr Musicki at Royal Melbourne Hospital in 2018.
Proceedings
Dr Musicki then sent Dr de Tonnerre a concerns notice and issued proceedings against him on 24 August 2022.
The Statement of Claim set out two causes of action: defamation, and misleading and deceptive conduct in contravention of section 18 of the Australian Consumer Law (ACL). The relief sought included general damages, aggravated damages, interest, and costs.
Dr de Tonnerre did not file a defence nor appear at any hearings and Dr Musicki sought orders for summary judgment against Dr de Tonnerre.
Findings
Considering the statement of claim, Justice Mortimer was satisfied that Dr Musicki had proven her cause of action in defamation. She was satisfied that:
- Dr de Tonnerre was responsible for publishing the Google review pleaded in the Statement of Claim;
- having regard to the nature and content of the Google review, the publication carried the defamatory imputations pleaded namely that:
- Dr Musicki pushes her clients to have surgery for her own personal benefit;
- Dr Musicki is negligent as a surgeon in that she does not provide proper medical post-surgery follow-up;
- Dr Musicki rips off her clients in that she omits providing clear costing when requested; and
- Dr Musicki provided a negative customer experience for the patient David Cross;
- the Google review had been downloaded and read by at least some people in Australia; and
- Dr Musicki suffered damage to her reputation, particularly due to the location of the publication alongside other reviews of her performance of medical services.
Justice Mortimer made orders including judgment against Dr de Tonnerre in respect of Dr Musicki’s allegations of defamation and ordered a hearing for the assessment of damages.
Implications
This case highlights that anonymous reviews posted online may give rise to defamation proceedings.
This case provides some reassurance for any defamed practitioners and suggests that it is prudent for doctors to monitor reviews about them which are published online, especially reviews that have been published anonymously or under a pseudonym.
This article was written by Katharine Philp, Partner and Emily Treston, Solicitor.
