A different strain of virus
At the time of preparing this article, it seems somewhat strange and even trivial to be thinking, let alone writing, about anything other than the rapid and virulent worldwide spread of coronavirus. Well before this year, however, the online world was already well accustomed to the spread of other so-called “viral” content.
The rise of the internet has made us more inter-connected than ever before and, for that very reason, online content really does have the potential to spread not unlike a contagious virus. However, the speed of the transmission and spread of online content is often much faster than any physical virus.
Online content spreads so quickly because of our inter-connectedness. It has often been said that each of us can be connected to any random person in the world through only “six degrees of separation”. More recent research suggests it may now only be five degrees.1 On the internet, it is less still – on Facebook, it was 3.74 in 20122 and 3.57 by 20163. It is a small world, but getting smaller.
That helps explain why viral content spreads so far, so quickly, over the internet, but it also begins to explain why online defamation can be so destructive of an individual’s reputation. Indeed, although defamation law’s hypothetical “ordinary reasonable person” is said not to be avid for scandal, experience tells us that is not the reality – the more scandalous the online content, the more likely it is to gain traction and “go viral”.
Doctors and online reputations
Almost all modern professionals – whether they like it or not, and whether they know it or not – tend to have twin professional reputations – one that lives and breathes “off-line” and one that exists “online”.
For doctors and other health professionals, in particular, there are many online sites where patients can leave reviews about them – such as Google, Facebook and Rate MD.
The fundamental problem is that it’s all too easy to leave a review about a health professional (a disgruntled patient need only have access to a computer and the internet), but it is often very hard to remove it.
We consider, below, some recent legal trends and developments in this area, and how they might provide some recourse for doctors who have been the subject of the (potentially viral) spread of negative online reviews.
Take-down procedures
One option is for the doctor to avail himself or herself of a platform’s take-down procedures.
Historically, platforms like Google have often been reluctant to remove defamatory reviews, on the basis that, it says, a defamation dispute should be left to be resolved between the doctor and the patient who has left the review. Google’s position has often been that take-down procedures, such as its “Legal Removal Request” procedure, should only be used following a formal court order; to require otherwise, it has suggested, would oblige Google to act as judge or jury – reaching a verdict as to whether the review is defamatory in meaning and whether potential defences (such as justification/truth, or honest opinion) might operate. Of course, at an even broader level, this goes to the tension that lies at the very heart of defamation law – between freedom of speech, on the one hand, and an individual’s reputational rights, on the other.
While it remains the case that formal take-down procedures will not always be successful, we are detecting recently a slight shift in the willingness of online platforms to act in response to such requests. Sometimes that might be where there are other grounds for removal aside from defamation (such as breach of the platform’s terms of use relating to, for example, objectionable or abusive content). We suspect some of this has been spurred on by changes in community attitudes as well as developments in the law.
Anti-Big Tech attitudes
In terms of community attitudes, we have seen a societal shift which could be categorised as “anti-Big Tech”. It is evident not only among the general public but also at a regulatory and government level, and is certainly not confined only to defamation. For example, we have seen last year’s ACCC “Digital Platforms Inquiry” report on the accountability of digital platforms including Google and Facebook, the high profile regulatory actions in the Federal Court against those two major platforms (the ACCC action against Google over the use of location data, and the OAIC privacy breach action against Facebook over the Cambridge Analytica saga), and then, more recently still, the decision of the Federal Government to force Google and Facebook to pay local media outlets for using their content.
Legal liability of online platforms
It is possible that this anti-Big Tech sentiment will ultimately filter through to the law of defamation also. There has been much debate and uncertainty over the last decade or so as to the liability of online platforms for defamatory content posted by others. Defamation law is currently undergoing a process of review and reform and, as part of that, some are agitating to hold social media and other online platforms legally responsible as publishers of content posted by third party users (perhaps, most notably, the Commonwealth Attorney-General, Christian Porter4).
There is a long road to go before such law reform might be achieved, and the online platforms are, naturally, opposing it strongly.
In the meantime, however, the courts are arguably already taking steps in that direction. This has included developments such as the following:
- A number of decisions in recent years have hinted at the possibility that online platforms and search engines may, in certain circumstances, be liable for defamatory content (see, for example, Google Inc v Duffy [2017] SASFC 130, Trkulja v Google LLC [2018] HCA 25 and, only in the last few days, the decision of the Supreme Court of Victoria in Defteros v Google LLC [2020] VSC 219 awarding the plaintiff $40,000 against Google). This can include instances where the courts hold that the search engine is responsible for the content because it has been generated as a product of its own algorithms, or instances where the platform is put on notice of the defamatory content and does not remove it within a reasonable time thereafter.
- The decision of the Supreme Court of New South Wales last year in Voller v Nationwide News Pty Ltd [2019] NSWSC 766 caused shockwaves when Justice Rothman found that the operators of public Facebook pages could themselves be said to have published comments posted by individual third party users, not just as a publisher but as a primary publisher (thereby undermining the defence of innocent dissemination). Justice Rothman’s line of reasoning, if it survives the pending appeal, would potentially apply by analogy to other online platforms.
- In another case last year, KT v Google LLC, Justice Rothman granted an interlocutory injunction requiring Google to remove particular online reviews (which were said to suggest the plaintiff doctor had “butchered” patients and was “incompetent“, a “fraud“, and an “illicit drug user“). When Google did not remove the reviews sufficiently quickly, his Honour referred Google to the Supreme Court Registrar for contempt (although that order was later unwound – see KT v Google LLC [2019] NSWSC 1015).
Notwithstanding the above developments, the position with respect to the liability of online platforms for content posted by users remains unsettled. A defamed doctor would, therefore, want to think twice before taking on one of the online platforms directly.
Suing reviewers personally
In those circumstances, suing the reviewer personally can be an option. Some doctors have had significant success in doing so, perhaps most famously in recent years the following:
- In Al Muderis v Duncan [2017] NSWSC 726, Dr Al-Muderis was awarded $480,000.00 after a “most vicious and vituperative series of [online] publications” which included suggestions he was a “butcher and a bully”, was a criminal, was cruel, was grossly negligent, and was “unethical”.
- In Tavakoli v Imisides (No 4) [2019] NSWSC 717, Dr Tavakoli was awarded $530,000.00 after he was defamed by a Google review alleging he charged the defendant for a buccal fat procedure he did not perform, acted improperly in relation to that procedure, and acted incompetently in relation to that procedure.
Often reviews are posted anonymously (and in fact it seems that the more vicious the review the more likely it is to be posted anonymously by the reviewer). That creates a threshold difficulty for the plaintiff doctor in establishing the identity of the reviewer. But on that front, too, recent developments have perhaps given aggrieved doctors a path to pursue. In the recent Federal Court case of Kabbabe v Google LLC [2020] FCA 126, a dentist in Melbourne successfully obtained preliminary discovery orders against Google which required production of documents that might tend to reveal the identity of a reviewer who had posted using a pseudonym.
However, many obstacles remain. Assuming the reviewer can be found and sued, or if they were sufficiently brave (or careless) to have posted in their real name in the first place, any resulting legal proceedings are likely to be costly and emotionally gruelling, a distraction from the doctor’s medical practice, and technically challenging from a legal perspective. Even if the doctor ultimately wins, they may be left only with a judgment against an individual without the finances to pay it. For many plaintiffs, defamation proceedings are not about money – the vindication that comes from a judgment in their favour makes the process worthwhile; for others, however, there is a risk any ultimate victory may be pyrrhic.
Stopping the spread
For those who have not themselves been defamed, it may be tempting to regurgitate the old adage about “sticks and stones“. Leaving aside whether it was ever true that words can never hurt you, it is certainly not now true. In a world in which we are more inter-connected than ever before, a doctor’s hard-earned reputation can be undermined by a single false review.
It has been said in defamation that it is impossible to track the scandal, and to know what quarters the poison may reach (interestingly, the word “virus” comes from the Latin “vīrus” (poison) / “virulentus” (poisonous)). All the more reason to act swiftly to stem the spread. While never easy or straightforward, the recent legal developments we have discussed, and the trend they seem to reflect, may give at least some greater scope for doctors to more effectively halt the spread of the defamatory “poison” of adverse online reviews.
This article was written by Andrew Miers, Partner and Jeremy Marel, Senior Associate.
1 Niall Ferguson. The Square And The Tower: Networks, Hierarchies And The Struggle For Global Power, p.29. 2017.
2 https://research.fb.com/publications/four-degrees-of-separation/
3 https://research.fb.com/three-and-a-half-degrees-of-separation/
4 Christian Porter, Attorney-General, Address to National Press Claub Canberra, 20 November 2019 https://www.attorneygeneral.gov.au/media/speeches/address-national-press-club-canberra-20-november-2019
