Does defamation law apply to online reviews in New Zealand?



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Outline of the steps that you can take to address bad reviews.
New Zealand Litigation, Mediation & Arbitration
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Online reviews are very important for online businesses. As customers sometimes cannot view your business and products in-person, online reviews can provide a first impression for your business.

Unfortunately, people can be very harsh when writing online reviews. If you own an online business, you may find yourself facing a negative review. Sometimes, these reviews may even be malicious, offensive or defamatory. There are a few steps that you can take to address these reviews.

This article will outline:

  • where you can find online reviews of your business;
  • what constitutes a defamatory review;
  • how you can pursue someone for defamation;
  • how the Harmful Digital Communications Act may assist.

Where Can I Find Online Reviews of My Business?

There are a few ways that reviews can appear online. People can review businesses on Google, which will appear when someone looks up your business. Additionally, there are specialist review websites for certain types of business, like Yelp for food businesses. Additionally, customers can leave reviews on your social media sites by posting on your page or commenting on your photos.

As a business owner you should keep track of all the places that customers may post reviews of your business.

What Constitutes a Defamatory Review?

Unfortunately, not all unkind or malicious reviews are necessarily defamatory. For a statement to defame your business, it must:

  • be "published" to a third party; and
  • harm your reputation.

However, a true statement cannot constitute defamation. If someone is critical of your business but makes true statements, they are likely not making defamatory statements. However, if they say that there was mould in their food when there was not, for example, this will be defamation as the statement is not true.

How Can I Pursue Someone for Defaming My Business?

Unfortunately, the primary way to challenge defamation is through formal litigation proceedings. Therefore, this method can be out of reach for many people, as court costs can be extensive.

Consequently, it may be difficult to challenge online reviews by taking a defamation claim to court. However, there is a chance that sending a letter from a lawyer stating that you are willing to take legal action could effectively deter them and push them to remove their defamatory review.

How Can the Harmful Digital Communications Act Help?

If you feel that pursuing defamation through the courts may be too costly, there is another option available through the Harmful Digital Communications Act ('the HDCA'). This Act is designed to prevent harassment and bullying online. It applies to internet and social media posts, texts and internet messages, and even phone calls.

The HDCA prohibits communications that are:

  • threatening, intimidating, or menacing;
  • indecent or obscene;
  • used to harass an individual;
  • making a false allegation; or
  • attacking on the basis of their identity.

An online review may breach the HDCA even if it is sent to you directly, as long as it falls into any of these criteria. The governing body set up by the HDCA is NetSafe. They can assist you in dealing with the review, and their service is free. They may also advise you on your rights, mediate a solution between you and the reviewer, or request website hosts to take down defamatory content.

Additionally, NetSafe can help you take a claim to the District Court if no solution is readily available. The Court has several ways to assist you. Importantly, they can make formal orders, which are more binding than any requests NetSafe may make.

A District Court can order someone to:

  • publish a correction;
  • publish an apology;
  • stop their defamatory conduct;
  • not encourage other individuals to engage in harmful conduct; or
  • disclose the name or identity of a person acting defamatorily.

Additionally, they can mandate a fine of up to $50,000 or enforce a prison sentence if the harmful communications are severe.

Which Approach Should I Take?

If you have received a malicious or defamatory review, it is up to you whether the HDCA or a formal defamation order is the right approach for you. If your business has suffered severe reputational and economic damage, it may be best for you to consider taking a claim to Court, as they will be able to deal with these losses.

Additionally, sometimes a strongly worded letter from a lawyer indicating that defamation proceedings are in the works is enough to get someone to cease or settle as they will not want to pay court costs. If you settle, they will likely retract their statements and publish an apology. They may even have to pay some costs.

On the other hand, if an online troll is posting malicious reviews that don't fit the legal threshold for defamation, you can handle the situation through the HDCA. This is also a far more cost-effective approach if you do not have the resources to pay for a trial.

Key Takeaways

It is always unpleasant to receive a defamatory or malicious online review. You have a few approaches available to you to deal with these reviews. You can take action for defamation through the courts or take action under the HDCA if you do not meet the strict requirements for defamation.

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