Reputation management refers to the influencing and controlling of a reputation – both offline and offline. What was once a task assigned to a Public Relations or Corporate Communications department is now an integral part of any any business program and a core factor in how brands are perceived online. Online reputation management, sometimes abbreviated as ORM, focuses on the management of website search results, social comments (notably Google and Facebook), and how your brand is represented or portrayed on other websites.
We’re seeing some of our competitors in the finance space charge between $500 and $1000 for a service that takes no more than a few minutes and isn’t overly complex to accomplish in the Australian market. This quick article seeks to look at whether a Google or other review may qualify for removal, and what supporting evidence will be required before a Google review can be removed.
Note: Reputation management has always been a part of our service, and the simplicity of our guidance means that the service has rarely attracted any kind of fee.
When looking to have a fake or other misleading review removed we’ll follow the published and preferred method (initially) by simply submitting the offending review to Google with supporting evidence. Using our standard templates this process is accomplished in just a few minutes and the request is rarely declined. Should this method fail it’s likely that a cost will be incurred (usually less than $200) by our company legal representation. If legal measures fail we’ll typically take to our established relationships in Google and Facebook and pursue the matter with vigor through known human channels. In the years we’ve operated, only one single case was ever declined via the first online method… supporting the assertion on our end that the fees imposed upon businesses for the 5-minute exercise are absurd.
Defamation law in Australia is complex, technical and artificial. While the USA has the notion of free speech authored into their constitution, Australia’s nanny-laws afford no similar protection . Fake reviews (negative or positive) in Australia is a crime and compensation may be sought from the author of a nefarious review for any damages likely to have incurred as a result of the action. In many cases we recommend litigation against the creator as a means of vindication by eliciting a court-ordered or mediated apology.
Fake reviews can and should be removed from Google My Business by Google (the same applies to Facebook and other social networking websites). In fact, it’s their legal obligation to comply with the request once they’re made aware of it. The grey area arises when the individual making an unfavourable review was in fact a customer and is expressing his or her understanding of a truth. So, you may have malicious, fake, and false reviews removed… but not simply bad reviews.
If you’re looking at having a review removed it’s first important to understand the defence of the author. While there’s numerous defences we’ll list only those that are most applicable (a full list of defences is listed in Section 24-33 , Defamation Act 2005 (NSW)).
Defamation actions in Australia are governed by substantially uniform Defamation Acts (“UDA”) of each State and Territory. The relevant legislation in each of the other states and territories is as follows: Defamation Act 2005 (Qld); Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (WA); Civil Law (Wrongs) Amendment Act 2006 (ACT) (amending the Civil Law (Wrongs) Act 2002 (ACT)) and the Defamation Act 2006 (NT) (collectively referred to as “the uniform legislation“). We’ll refer to the Act that applies in NSW since Sydney is, after all, the defamation capital of the world.
- Truth/justification. Truth alone is not a defence in all jurisdictions. In some, the defendant must also prove that the publication of a true statement or imputation was made for the ‘public benefit’ (Queensland, Tasmania, A.C.T.) or relates to a matter of ‘public interest’ (NSW).
- Fair comment (e.g. an expression of an honestly held opinion or a criticism on a subject matter of public interest)
- Consent (e.g. where the plaintiff expressly or impliedly consented to the publication of the particular imputation)
- Triviality (e.g. where the circumstances/occasion of the publication were trivial to the extent that the person defamed was not likely to suffer harm)
On most occasions we tend to ‘prosecute’ the comment on the basis of ‘fair comment’, although it’s the ‘truth and justification’ component that provides a case against radical subjectivity: was the comment written in anger and embellished by emotion? In many cases, an unfair one-sided comment can be challenged on the grounds of ‘public interest’ when no public benefit is obtained or communicated because context was never provided (for our finance clients, for example, a bad home loan review is more likely be removed if no mention is made of their inability to service, historical defaults, failure to provide necessary documents etc.).
The Defamation Act requires three distinct proofs to be satisfied, and the balance of probabilities for each condition applies in a civil court before defamation can be established:
Material must be published (which includes orally communicated) to at least one person other than the party who was allegedly defamed. The publication can occur orally or in writing, whether in print, by way of digital communication or otherwise, but it must be comprehensible.
The material must identify the allegedly defamed person either directly or indirectly, or be capable of doing so.
The material must be ‘defamatory’ to the ‘ordinary, reasonable’ person, which means it must be likely to: cause the person to be shunned, shamed or avoided by others; adversely affect the reputation of the person in the minds of right-thinking members of society; or damage to the person’s professional reputation by suggesting a lack of qualifications, skills, knowledge, capacity, judgment or efficiency in his or her trade, business or profession.
In the case of online comments, it’s only the latter proof that generally has to be proved. Was it fake, false, misleading, malicious, unfairly damaging, shameful, and does it cause future harm? When defamation occurs online, damages awarded – should you pursue litigation under the Act – may increase to account for the “grapevine effect”: the way salacious content tends to be shared and repeated on the internet (suggesting that the more influence you have the more damages an author will be forced to pay after writing a malicious review). The proof is reasonably easy to support; most bad reviews – even if they’re factual – will cause personal damage and harm. So, even if Google didn’t remove a review, pursuing the matter through the court system is a means upon which to rely for a positive outcome (in reality, the the mere threat of legal action, or papers served upon an individual, is enough to have the matter quickly resolved and withdrawn).
Clearly, if you’re seeking to have a fake review removed – and given the nature of Australian law – social networks must seek to amend their website as required if suitable proof is provided. In the case of what are clearly fake reviews, an affidavit, evidence that the individual is not a client, and supporting legislation is all that is required to have the review removed. While Google cannot be held to account for what is published on their site they may leave themselves liable to prosecution should they fail to remove the offending material after they’re made aware of its presence.
In the case of existing clients that have left a review that isn’t factually correct, it’s usual to respond to the comment directly, appeal to them directly (over that antiquated device known as a telephone), and make attempts to fairly re-mediate the issue. Should they fail to comply, and if the comment is ‘indefensible’ under the balance of probabilities (a lesser degree of proof than ‘reasonable doubt’) you can pursue them legally for financial and other damages. It’s in chasing down a disgruntled client that usually calls for a diplomatic approach by ‘righting a wrong’ before you potentially inflict further brand damage by pursuing a customer. Our legal counsel provides this service to our clients and takes a soft and subtle approach before going in ‘guns-blazing’.
In determining whether the conduct of what might be perceived by you as a malicious comment is reasonable, the court will consider:
- the public interest in the matter, and
- whether the material relates to the performance of public functions, and
- the seriousness of any defamatory imputation, and
- whether the material distinguishes between suspicions, allegations and proven facts, and
- whether it was in the public interest to publish the matter expeditiously, and
- the nature of the business environment in which the defendant operates, and
- the integrity of the sources of the information;
- whether the substance of the material is person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and
- any other steps taken to verify the matter published, and
- any other circumstances that the court considers relevant.
So, if a damaging Google (or Facebook) comment is factual, honest, substantially true and was written without malicious intent, a diplomatic approach is usually the most suitable. The prosecution of a comment made on the basis of words such as a ‘honest’ and ‘substantially true’ is supported by a mountain of case law… but in the end you’ll often find the threat of legal action against an author when the comment was made in anger is enough to have it removed.
The uniform legislation also provides for a defence of contextual truth. The defence deals with the case where there are a number of defamatory assertions carried by a matter but the plaintiff has chosen to proceed with one or more but not all of them. In that case, the publisher may have a defence of contextual truth if the defendant proves that one or more of the assertions not pursued by the plaintiff is substantially true and the defamatory assertion that is pursued does not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
The new UDL legislation provides a framework for the settlement of disputes. The framework allows the parties to make an offer to make amends. This offer may be made at any time up to 28 days after the publisher of the alleged defamatory statement has been given the notice of the complaint or if a defence has been served. It’s when a claim makes its way into this legal territory that we start to see legal costs that creep up towards around the $1000 mark (the fee charged by many to do what should be free).
Section 14B of the Limitation Act 1969 (NSW) provides that ‘an action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained. However, section 56A(2) allows a court to extend that period to up to 3 years from the date of publication.
While criminal prosecution in Australia for defamation is rare, it isn’t without precedent. Section 529(3) prescribes a maximum penalty of 3 years’ imprisonment for anyone who, without lawful excuse, publishes a matter defamatory of another living person:
(a) knowing the matter to be false, and
(b) with intent to cause serious harm to the victim or any other person or being reckless as to whether such harm is caused
Section 529(4) provides that a defendant has a lawful excuse lawful excuse if, and only if, he or she would, having regard only to the circumstances happening before or at the time of the publication, have had a defence for the publication if the victim had brought civil proceedings for defamation.
If a competitor or disgruntled client makes an attempt to sabotage your business in any way they may potentially end up behind bars.
Section 529(7) requires the consent of the Department of Public Prosecution before proceedings can be instituted under the section, and subsection (9) states that a prosecution under the section does not a bar civil defamation proceedings.
Removing Google My Business Reviews
Google’s policy for removing offending Google My Business reviews is clear . If you have a legal claim to have a comment removed simply fill out the form here and it’ll be reviewed for deletion. If you’re one of our clients it’s important to support your claim by way of one of our templates that cites relevant legislation. If a comment is deliberately false ensure you include a link to a witnessed affidavit. Simple.
Do not pay anybody to perform this simple service. Some charlatans sharing our space will even offer a money back guarantee on the service as if to assign value to their offer… when the likelihood of having the removal request declined is very low.
Aggressive (Corrective) SEO
Aggressive or ‘Corrective’ SEO is the practice of promoting good content so efficiently that it drowns out bad content and negative reviews… generally a last resort for those trying to bury road-bumps in their business history. We believe that ‘Corrective SEO’ is better known as just SEO. One shouldn’t only engage in SEO-related activities when their reputation in compromised – SEO is a never-ending pursuit of online goodness!
If you’re a client, Reputation Management is and always will be an essential part of our underlying SEO service (a bronze SEO package is provided to any marketing client on the basic of its importance).
It should be worth noting that fake positive reviews, encouraging reviews on the basis of a financial or non-financial benefit, and any other kind of fake or misleading review are covered by the Competition and Consumer Act 2010. Any nefarious practice designed to illicit a review that is anything other than natural may attract significant penalties.
Your clients are talking about you on Facebook, Google, Twitter, YouTube, Message Boards and elsewhere right now. Are you listening? We’ll address more practical areas of Reputation Management in the future.
Note: While guidance was provided by our legal representation, nothing in this article represents legal advice. A consultation is necessary to determine the course of action necessary for your own situation.
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