Online reviews and defamation
There is a particular, savage pleasure to be gained from writing a scathing, one-star online review. But, as the recent Federal Court decision in Callan v Chawk ([2023] FCA 898) makes clear, that cathartic joy may be a fleeting pleasure if it results in a suit for defamation.
Dr Callan is a plastic surgeon who performed a rhinoplasty on Mr Chawk. There was a dispute as to whether the purpose of the surgery was purely aesthetic, as Mr Chawk argued or, as Dr Callan contended, to correct a breathing difficulty. The trial judge resolved that argument in favour of Dr Callan, observing that it was “inherently improbable that Mr Chawk underwent a cosmetic procedure in a public hospital”.
In any event, Mr Chawk was unhappy with the result. On 16 October 2020, he posted a review of Dr Callan on a website named RealSelf – an internet site on which reviews of medical practitioners are posted. The review was headed “The Emotional Impact of a Failed Rhinoplasty is Severe”. Mr Chawk’s review was strongly critical, and he gave Dr Callan only one star, the lowest ranking permitted by the site.
Dr Callan sued. The review remained online for over a year, and Dr Callan gave evidence that during that period, the number of enquiries made to his practice declined by about fifty percent. He claimed that the review carried the defamatory imputations that he had negligently performed the surgery, and had then negligently failed to correct it.
There was some dispute about the imputations that arose from the review, but no argument that the imputations asserted by Dr Callan were defamatory. The case is interesting because it considered the defence of honest opinion. Under s 31(1) of the Defamation Act, a defendant can establish the defence of honest opinion by proving that (a) the matter was an expression of opinion rather than a statement of fact, (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. All reviewers express opinions: this case is useful guidance on when those opinions will be protected by section 31(1).
Halley J found that Mr Chawk’s review was a statement of opinion. It had been “published on a website that allowed patients to comment on their experiences with relevantly, plastic surgeons, and to provide a “star” rating from “one star” up to “five stars”. Objectively, the matter in that sense was inherently an expression of opinion. The allocation of a rating of one star at the conclusion of the Review would have readily been understood by the ordinary reasonable reader as ‘a deduction, inference, conclusion, criticism, judgment, remark or observation’ that Mr Chawk had made from the facts stated or referred to by him in the body of the Review.” That was not, however, enough to enable Mr Chawk to establish a defence under section 31(1), because Halley J found that the opinion was not “based on proper material”. The judge found that “following the rhinoplasty procedure, there was an aesthetic improvement in the shape of Mr Chawk’s nose” and “his nostrils were significantly more open on both sides” – so there were no proper grounds for Mr Chawk’s opinion that the procedure had been a disaster, even if it left him less nasally beautiful than he may have wished.
Mr Chawk was ordered to pay Dr Callan $50,000 in non-economic damages.
So, in summary:
an online review is a publication. It is capable of being defamatory in exactly the same way that a broadcast or a newspaper story may be defamatory;
although an online review is, by its nature, an expression of opinion, a statement of opinion may be every bit as defamatory as a statement of fact; and
the statutory defence of honest opinion will be available only when the opinion is honestly held, and is based upon a reasonable factual foundation.
