How to tackle defamatory online reviews: medicolegal expert


By Siobhan Calafiore

20 Mar 2023

Doctors concerned about negative online reviews are often best reaching out to the patient in private or simply ignoring the review, a lawyer has told a medicolegal congress.

Speaking in Sydney last week, Samantha Pillay from Barry Nilsson Lawyers warned that the scope for publishing defamatory material had expanded enormously with the rise of the internet and online review platforms.

However, pursuing legal action presented its own challenges.

“Often doing nothing can be the best course of action,” she told Informa’s Medico Legal Congress on Tuesday.

“Some reviews come across as irrational and ridiculous to most members of the public, and for these you can consider simply ignoring the review and hoping over time it fades into insignificance.

“Another option is to respond, either online by replying to the review or offline by contacting the patient directly if you can identify them… which is often what we recommend as a first port of call.”

When replying to a review publicly, she advised doctors to keep their responses prompt, professional and polite, and to take extra care in not breaching the patient’s privacy or confidentiality.

This could be tricky because even confirming the reviewer was a patient of the practice could potentially be a breach of privacy, she added.

For material that conveyed defamatory imputations or where the author could not be identified, doctors could try approaching the platform on which the content was posted and ask for it to be removed, although this was not always straightforward, she warned.

“Normally, Google and Meta [Facebook and Instagram] have terms of service that deal with certain types of content, things like explicit content or confidential information … but for defamation matters, Google has commented it doesn’t want to play judge or jury,” Ms Pillay said.

“So often, it will be reluctant to intervene unless there is a court order.”

Doctor defamed by student’s review

Only last week, Melbourne specialist vascular and endovascular surgeon Dr Korana Musicki won a defamation action against a former medical student who had previously worked under her supervision [link here].

The student, Dr Erik de Tonnerre, had posted an online patient review on Google under a pseudonym in September 2020.

It stated: “terrible experience, was super keen to get me onto the table but then impossible to get ahold of for follow up, vague about incurred expenses, ended up with a massive bill. had no issues with the surgery but overall negative experience and no followup.”

Despite multiple attempts to have the review taken down or be provided with the author’s contact details, Google only handed out the email address, once a court order had forced its hand. However, this allowed Dr Musicki to identify her former student.

The review was eventually removed in April 2022 and Dr Musicki launched proceedings against Dr de Tonnerre a few months later in the Federal Court of Australia.

At last week’s congress, Ms Pillay told doctors to consider the hurdles of defamation action before pursuing a claim, which included the time and costs involved.

“Ultimately any judgement is only as good as the defendant’s ability to actually pay and a defamation action can be counterproductive by causing more reputational harm because the imputations are repeated and repeated,” she said.

However, she referred to four healthcare professionals who had each been successful in pursing a defamation claim for online campaigns against them in the last six years.

They had been able to establish repetitional harm by showing a significant drop in website traffic and having patients take to the stand to give evidence on how the reviews had impacted on their perceptions of their doctor.

These cases were each awarded damages ranging between $170,000 and $530,000.

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