Negative criticism: can the surge in Google review defamation cases be stopped?

It was a moment of frustration for Jaimyn Mayer in February 2019 that led to a year of legal woes. The 23-year-old from Brisbane had been helping his mother in a long fight against a secondhand car dealer over a car she had bought from them for $24,000 in 2017. Nyst Legal had been acting for the car dealer.

Mayer left a one-star review on Nyst Legal’s Google page. There was no text to the review, and he did it under his own name, despite never having been a customer of Nyst Legal, as he acknowledged.

“I had legitimate concerns and they were just trying to get us to go away,” he says.

Related: ‘Google's power is extraordinary’: businesses turn to the courts over bad reviews

By March 2020, Nyst Legal were trying to contact Mayer about the review. After attempts to contact Mayer through LinkedIn and his personal website, they brought a claim against Mayer and Google.

Nyst Legal sought $300,000 in damages from Mayer, claiming, according to court documents seen by the Guardian, the one-star review implied the founder of the firm, Chris Nyst, and his son Brendan were “inept” and “one of the worst” and their firm was also “one of the worst”.

Nyst Legal ultimately accepted a settlement offer from Mayer and the case was withdrawn, but it took almost a year for it be resolved.

“It was extremely stressful,” Mayer says.

The settlement involved no payment to Nyst Legal and it covered Mayer’s legal costs, he says.

Brendan Nyst declined to comment, but has previously told the Courier-Mail that the terms of the settlement were confidential but he and his father were happy with the outcome, which included a separate settlement with Google that involved taking down the review.

‘People just want to stop the spread of allegations’

Google review defamation cases have been on the rise in Australia in the past few years, but recent changes to the law are likely to limit the number of cases reaching court.

Last week, the county court of Victoria ordered a woman who left multiple negative Google reviews about Kew periodontist Dr Allison Dean to pay $170,000 in damages plus costs, for what the judge said was a “vendetta” against the specialist.

In a statement to the court, Dean said the comments had “caused immeasurable damage to my emotional wellbeing, my psychological and physical health, my reputation, my work and my business”.

Last year, Google and Optus handed over information that revealed the identity of an anonymous negative reviewer on Melbourne dentist Dr Matthew Kabbabe’s page, after he took legal action. The case was subsequently settled.

Matrix Legal’s Mark Stanarevic, who represented Dean and the dentist, says he has taken on a dozen similar cases in the past year of people seeking to get reviews removed.

He says launching defamation action remains cost-prohibitive for most people, but some view it as the only option to get Google to act or to provide information on who is behind the reviews.

“People must be highly motivated, or have a pattern of attacks, and they’ve got no other recourse, they have to issue a court order because Google will not provide any information unless there’s a court order,” he says.

The changes to defamation law, which came into effect in most Australian jurisdictions on 1 July, will potentially make it more difficult for similar cases to go ahead.

Under the changes – part of an overhaul led by NSW attorney general Mark Speakman – those bringing defamation cases must demonstrate to the court the balance of probabilities that serious harm has been suffered as a result of the allegedly defamatory comments.

Stanarevic says this could prevent Google review matters ending up in court, other than the most egregious examples.

“If there’s a pattern of abuse, and it has impacted people’s business, then they can definitely satisfy the serious harm, but obviously it’s a threshold and there is much more to prove than typically just their view,” he says. “It will get to the key issues in terms of the maliciousness.”

Prof David Rolph, a defamation law expert at the University of Sydney, says it is too early to say whether the change will affect Google review cases.

“If it’s a single private individual who might not have any online presence or status or currency, it may be difficult for a person to establish that they have suffered serious harm to reputation,” he says.

For a lot of clients, they’re not really looking for cash.

Michael Douglas

Michael Douglas, senior lecturer in private law at the University of Western Australia, says he expects the serious harm bar still to be relatively low, if people can demonstrate a drop in business.

“It may dissuade certain people from suing or threatening to sue, who might have previously, however, the law we have on that serious harm threshold … already shows it’s a pretty easy barrier to overcome.”

Douglas says many people will still send concerns letters as a means of getting reviews taken down, even if matters do not end up in court.

“For a lot of clients, they’re not really looking for cash,” he says. “They just want to stop the spread of the allegations against them.”

Stanarevic says people often bring cases after being frustrated with Google’s process for getting reviews removed.

“Anyone could see it wasn’t a customer leaving these anonymous reviews, and people have spent months trying to deal with Google to get them reviewed in a process that is very flawed,” he says.

“I’ve had clients who have come to me who have gone to Google numerous times … and they receive a stock-standard response from a call centre that it’s not in breach of Google’s terms and policies.”

A Google spokesperson said the company used a mixture of automated and manual systems to detect issues, and for people to flag reviews.

Google has said reviews must be based on real experiences and information. In 2020, the company blocked 55m reviews globally and nearly 3m fake business profiles, and disabled 610,000 user accounts.