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Can an online review be defamatory? Yes

Booking a hotel? First check trip advisor. Eating at a restaurant for a special occasion? Check Yelp. Going to the doctor? Check RateMD. Online reviews are helpful to the public if the writer offers an honest and fair opinion. What happens when a review is derogatory, malicious, and posted only to do harm?


Negative and degrading reviews written to lower a person or company’s reputation may be defamatory. In Zoutman v Graham, the Ontario Superior Court awarded $50,000 to a doctor on the bad side of a defamatory RateMD post.


Facts

The Defendant’s 36-year-old brother died after an elective surgery. His estate sued the doctor and hospital for wrongful death. The Plaintiff was a witness in that case for the defence. His testimony infuriated the Defendant who went on to post several disparaging online reviews pretending to be a patient of the Plaintiff. The court quoted the following examples of the Defenant's posts:

This fellows [sic] misplaced arrogance is surpassed only by his obstinance. He is definitely the smartest person he has ever met. Unable to distinguish between sepsis and pyo-myositis, Dr. Dick claims that neither condition would benefit from the administration of antibiotics. Dangerous and delusional, this individuals [sic] services should be considered carefully prior to allowing treatment.

And

[the doctor] provided “expert” opinion in a case where a surgeon was accused of negligence in the death of a 36 year old man who had undergone an elective procedure. I found him to be arrogant, obstinate and condescending. He actually claimed he believed he could do a better job determining the cause of death than the pathologist who conducted the autopsy – 12 years after the fact, and without the benefit of any sort of examination (can you say delusional?) The surgeon was found negligent by a jury of a peers, listing too many breached to the standard of care to list here. Endorsing reckless behaviour is dubious business, and I conclude [the doctor] poses a similar threat. The patient was my brother.

The court explained that whether a statement is defamatory is determined by examining the natural and ordinary meaning of the words. In this case, the poster was not benefiting the public by providing useful information of his experience. The posts attacked the very core of the Plaintiff’s integrity. Statements such as “reckless behaviour”, “turns to bullying”, and “epitomizes all that is wrong with the health care system in this country” were not an honest review of the Plaintiff’s medical practice.


The Defendant argued that just because the reviews were posted online does not mean that anyone actually read them. He further argued that if the Plaintiff could not prove they were read by anyone, the case should be dismissed. The Court disagreed.


Proving that the posts were read is part of the “Publication” portion of the defamation test. Publication is a matter of proof but can reasonably be inferred from the proven facts, “to find otherwise would be to ignore the realities of 21st century communications and internet based publication.”


Take Away

Be careful when leaving an online review. An honest review, even if negative, is likely fine and you will not be liable for defamation. On the other hand, a review made with malice that attacks character can get you in trouble.


People and companies subject to malicious online reviews or posts can be successful in a claim for defamation.


Contact us to discuss your options regarding a defamatory online review.

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