Lawyers say the number of defamation cases involving online reviews and feedback will grow. Photo: Louie Douvis
Thinking of posting a negative review about a seller on eBay? It pays to phrase your criticism carefully, as snarky comments on online auction sites emerge as the latest defamation battleground.
In one of the first cases of its kind in Australia, an eBay seller running a business called "Achilles Archery & Outdoors" sued a West Australian man over a negative review he posted on the auction website, as well as five posts on a separate forum in which the buyer discussed products he had bought from the business.
The case was dismissed on a procedural point by NSW District Court judge Judith Gibson last month, but lawyers predict the number of defamation cases involving online reviews and feedback will grow as people become increasingly aware of their online reputation.
Judge Gibson said "the distress caused to ordinary members of the community who find themselves at the receiving end of proceedings for defamation (as opposed to experienced media defendants) has been the subject of comment" in Supreme Court cases.
"These considerations are even more relevant today, where parties with no prior experience of defamation law, rather than experienced media defendants, increasingly find themselves before the court in complex and expensive litigation," she said.
"Claims for defamation are easy to commence, and difficult to defend."
In a case decided in November, which came to light earlier this year, a former student at Orange High School was bankrupted after he was ordered by the District Court to pay $105,000 in damages to a music teacher for defamatory comments he made to about 50 Facebook friends and 60 Twitter followers.
It was the first defamation battle involving Twitter to proceed to a full trial in Australia, and it highlighted the fact that the internet has made a publisher of any person with a computer, smartphone or tablet.
David Rolph, an associate professor at the University of Sydney Law School, said there had been defamation cases overseas involving negative comments on websites such as TripAdvisor and business review site Yelp.
Dr Rolph said the cases were "likely to occur more frequently in Australia just because these sorts of online auction sites exist and people are able to comment, just as in the same way Twitter defamation cases are going to increase because the technology is there".
He noted some practical obstacles to suing over comments online, including the question of how to "unmask the defendant" where they used a pseudonym online or no name.
Andrew Stewart, a partner at law firm Baker & McKenzie, said another potential obstacle was whether anybody could recognise the plaintiff if they too used a pseudonym.
"It may only be a few people who can recognise the user who is being attacked, if anyone," Mr Stewart said.
"That doesn't mean it's not defamatory but what it means is that because the reputation of the person may only be affected in respect of a small number of people, the damages may be too small to justify suing."
In the District Court case, the eBay seller did not provide particulars of how he had been identified by the comments and the case was summarily dismissed.
But Mr Stewart said he expected there would be more cases over time involving online reviews.
"As lawyers become more familiar with the online world, they might become more willing to push these kinds of cases through."