It is inevitable that there will be more defamation litigation resulting from nasty online reviews. And the law just isn't set up to cope.
As Abraham Lincoln once said, "Don't believe everything you read on the internet just because there's a picture with a quote next to it".
We do all kind of understand that, but the internet's speed and ubiquity constantly challenge the balance between the instinct to suspect and the desire to know.
In short: we believe way too much of what we see.
A quick search for online reviews of my law firm brought up this pearler, on a website called "judgeyourlawyer.com.au":
"It is my strong opinion that Marque Lawyers hire
fake writers to post fake reviews on their Facebook, a number of
our clients have been very disappointed with the professionalism
and conduct of Marque Lawyers however they respond to all negative
reviews with legal threats hence you will only see the fake
positive reviews they post about themselves, in my opinion. I
believe you should avoid hiring this lawyer firm as they've
dealt with us over the last six months, a lot of money thrown into
the toilet and incapable litigation means we lost the court case
incurred damages and many other losses which wouldn't have
happened if we used ANY OTHER Lawyer firm. Before hiring Marque
Lawyers, consult your local review sites and make a wise decision.
Do not make the same mistake we did, you will save yourself alot of
time and money by going elsewhere."
- Jennifer Ammenswerth, Board of Legal Counsel 2017 Sydney, NSW
I'd be concerned about just how disappointing we'd been for Jennifer, if she existed (she doesn't) or if any of the events related in her review happened (they didn't).
It's a fabrication, generated by who, or for what reason, we don't know. Still, it reads like it could be real and it's the fourth ranked search result for "Marque Lawyers review". It would be hurtful if we cared.
As the case of Adelaide barrister Gordon Cheng illustrates, one crappy review can be devastating for a small business with a niche clientele.
He was savaged online by a woman who claimed to be a client but wasn't. His evidence was that he'd lost $300,000 in direct income and plenty more in lost reputation because of what she'd said about the quality of his work.
He got $750,000 in damages, which he'll struggle to recover. The more vicious an online troll, the less likely that they'll have assets to pay a defamation judgment; it's just one of those internet laws.
It is inevitable, regardless of what reforms eventually trickle through to our defamation laws, that there will be more defamation litigation resulting from nasty online reviews.
What else is a poor victim supposed to do but sue?
As with the proliferation of Facebook defamation cases, which are essentially over-the-fence disputes writ large, it's difficult to point to any real social utility flowing from our courts being increasingly clogged with cases brought by exasperated recipients of misleading online reviews.
Bear in mind that the law is no more than a social tool, and the function of the court system is to make an approximation of repair when the smooth functioning of our interrelations goes off the rails. It works quite well when the problems are occasional.
When the presenting dysfunction becomes endemic, the law is an ineffective remedy.
What do I mean?
An example from criminal law is drug law enforcement, a known failure. The problem there isn't the laws or the policing; it's that nothing will stop people from consuming, or supplying, drugs.
So the law becomes a weapon of minimal potency, damaging its standing as a whole.
It is really the same problem with the world wild web. It is borderless, limitless and uncontainable by any traditional means.
We've only just started trying to clean the live-streaming of mass killings from the internet, having recognised belatedly that an untamed digital world is not nirvana for free speech but an open door to depravity.
Same deal for online trolling, just at a lower order of consequence. Defamation law was not created or designed for this.
It can respond spasmodically, for the well-resourced occasional plaintiff, and award big sums for nasty words. It can't stop them being spewed, and it won't.
If we could find "Jennifer Ammenswerth" (whatever their real name is), we still couldn't sue her, because of the arbitrary rule that says only a company with fewer than 10 employees can be a defamation plaintiff.
I am not joining the campaign to open that back up so that huge corporations can exploit defamation law to target their critics; I don't believe that any nonhuman entity should be able to sue.
My point is that that arbitrariness underlines the inability of the law of tortious claims to respond effectively to the social and personal harm that online trolling and bullying cause.
If we're not okay as a society with this anonymous viciousness being normalised, then we need to have a more sophisticated conversation about how to bring it to heel.
Otherwise, we're just playing whack-a-mole, and co-opting the publicly funded courts to host the game.
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